Petition — Marquez v. University of Washington

Supreme Court, U.S.

8 FILED

221149 Ju s Joga

3 | ALEXANDER N STEVAS

1 8 CLERK

IN THE =

Supreme Court of the United States

October Term, 1982

ALONZO MARQUEZ,

Petitioner,

v.

UNIVERSITY OF WASHINGTON; JOHN HOGNESS,

President of the University of Washington; RICHARD

RODDIS, Dean of the School of Law; and BOARD OF

REGENTS OF THE UNIVERSITY OF WASHINGTON,

Respondents,

Petition for Writ of Certiorari to The Court of Appeals

for the State of Washington

Alonzo Marquez

Route 1, Box 187

Outlook, Washington 98938

Pro-se

Phone (509) 837-5806

IN THE

Supreme Court of the United States

October Term, 1982

ALONZO MARQUEZ,

Petitioner,

v.

UNIVERSITY OF WASHINGTON; JOHN HOGNESS,

President of the University of Washington; RICHARD

RODDIS, Dean of the School of Law; and BOARD OF

REGENTS OF THE UNIVERSITY OF WASHINGTON,

Respondents,

Petition for Writ of Certiorari to The Court of Appeals

for the State of Washington

Alonzo Marquez

Route 1, Box 187

Outlook, Washington 98938

Pro-se

Phone (509) 837-5806

QUESTIONS PRESENTED 1/

1. Did the Washington State Appellate Court err in holding that

the Respondents’ Affirmative Action Program did not discrim-

inate against petitioner as to race or otherwise unfairly treat

Petitioner?

2. Did the Washington State Appellate Court err in holding that

Petitioner’s Equal protection rights were not violated under the

Fourteenth Amendment to the United States Constitution?

3. Did the Washington State Appellate Court err in holding that

Petitioner’s Affirmative Action contract was not breached by

Respondents?

4. Did the Washington State Appellate Court err in holding that

summary judgment without a trial on the merits was the approp-

riate procedural method of dealing with these issues?

1/_ A listing of names of all parties to this proceeding is included

in the caption of this case.

TABLE OF CONTENTS

Questions Presented

Table of Contents

Table of Authorities

Opinion Below

Jurisdiction

Constitional Provisions and Statutes

Statement of Facts

Argument of Granting the Writ

(a)

(b)

(e)

d)

The Washington State Appellate Court has

decided on 7A file question of first im-

pression, which until now has not been, but

ought to be, decided by this Court.

The standards applied by this Court were not

correctly applied by the Washington State

Appellate Cour.

The contract Law standards applied by the 10th

Cir. were incorrectly applied by the Washington

State Appellate Court.

Did the Washington State Appellate Court err

in holding that summary judgment without a

trial on che merits was the appropriate proced-

ural method of dealing with these issues?

Conclusion

Appendix Index

TABLE OF AUTHORITIES

CASES

Balise v. Underwood,

2 Wn, 2d 195, 381 P. 2d 966 (1963)

Barber v. Bankers Life and Gas Co.,

81 Wn. 2d 140, 500 p. 2d 88 (1972)

De funis v. Odegaard,

82 Wn, 2d 11 (1973), vacated as moot and remanded

416 U. S. 312, no action or remand, 84 Wn, 2d 617,

529 P. 2d 438 (1974)

PAGE

~~ — CO K WwW Ww ND ND —

— —

13

14

16

17

18

PAGE

17

17

12,13

Table of Authorities (Continued) PAGE

Gavin v. Peoples Natural Gas Co., 16

(1980,CA 3 Pa) 613 F2d 482

Keiser v. Coliseum Properties, Inc., 16

(1980,CA5Ga.) 614 F2d 406

Poller v. Columbia Broadcasting Systems, Inc., 16

(1962) 368 U. S. 464, 7 L Ed. 2d 458,

82 8 Ct. 486

Prince v. Pittston Co., 17

(1974, DC W Va.) 63 FRD 28

Quadra v. Superior Court of San Francisco, 17

(1974, DC Cal.) 378 F. Supp. 605

Reed v. Reed, 13,14

404 U. S. 71, 75-76, 30 L Ed.

2d 225, 92 S. Ct. 251 (1971)

Slaughter v. Brigham Young Univ., 15

514 F. 2d 622, 627, (10th Ci),

Cert. denied, 423 U. S. 898,

46 L. Ed. 2d 131, 96 S. Ct. 202 (1975)

Sommer v. Hilton Hotels Corp., 17

(1974 DCNY) 376 F. Supp. 297

University of California Regents v. Bakke, 12

438 U. S. 265, 57 L Ed. 2d 750,

98 S. Ct. 2733

STATUTES

The Revised Code of Washington (RCW 49.60) 6,7,11,12

CONSTITUTIONAL PROVISIONS AND

FEDERAL REGULATION

The United States Civil Rights Act of 1964 7,8,12

Fourteenth Amendment to the United States Constitution 6, 11, 13

Article I, Section 12 of the Washington Constitution 6,11, 13

28 U.S. C. A. Section 1257 5

U. S. Supreme Court Rule 17 6

TEXTS

Black’s Law Dictionary at 1569 16

(4th Edition) (1968)

Alonzo Marquez, petitioner herein, respectfully pray that a Writ

of Certiorari be issued to review the judgment of the State Court of

Appeals for the State of Washington filed and entered in the above

entitled cause on May 17, 1982.

OPINIONS BELOW

In 1978 the respondents moved for Summary Judgment. The

Honorable Gerald M. Shellan of the King County Superior Court,

thereafter, on April 17, 1978, granted the respondents motion for

Summary Judgment. The opinion is reproduced herein as “Appendix

A“ to this petition.

On April 30, 1979, the Court of Appeals, Division I of the State

of Washington, reversed Judge Shellan’s order. The opinion was un-

published and is reproduced herein as Appendix B“ to this petition.

The respondents again renoted the motion for Summary Judg-

ment in Judge Shellan’s Court and on December 31, 1979, he orally

granted Summary Judgment again, but stayed his decision for ninety

days to permit some deposition discovery. Thus, on July 8, 1980,

Judge Shellan entered an order incorporating by reference his Decem-

ber 31, 1979 oral opinion and ting respondents’ motion for

Su Judgment. The opinion is reproduced herein as “Appendix

C”’ to this petition.

On July 21, 1980, petitioner filed his appeal and on May 17,

1982, the State Court of wre of the State of Washington affirm-

ed, The opinion is reported as 32 Wn. App. 302, and is reproduced

herein as Appendix C” to this petition,

Motion for Reconsideration of said decision was denied June 16,

1982, and is reproduced herein as “Appendix C” to this petition.

A Petition for Review of the said decision was denied October 8,

1982 by the Supreme Court of the State of Washington, and is

reproduced herein as “Appendix D” to this petition.

JURISDICTION

The judgment of the State Court of Appeals of the State of

Washington was made and entered on May 17, 1982. The petitioner

herein filed a Motion for Reconsideration but was denied June 16,

1982 and a Petition for Review was filed with the Supreme Court

of the State of Washington and was denied October 8, 1982.

The opinion below decides and applies important questions of

federal and state law that is contrary to this Court. The opinion pre-

sents important questions of first impression, which until now has

not been, but 17 1 to be, decided by this Court. On this basis, peti-

tion is made to this Court prusuant to 28 U.S. C. A. Section 1257 and

5

aa Supreme Court Rule 17, for Certiorari to review the opinion

low.

CONSTITUTIONAL PROVISIONS AND STATUTES

The Fourteenth Amendment to the United States Constitution

states in part;

§ 1. Citizenship rights not to be abridged by states

Section 1. All persons born or naturalized in the United

States, and subject to the jurisdiction thereof, are citizens of the

United States and of the State wherein they reside. No State

shall make or enforce any law which shall abridge the privileges

or immunities of citizens of the United States; nor shall any

State deprive any person of life, liberty, or property, without

due process of law; nor deny to any person within its jurisdic-

tion the equal protection of the laws.

Article 1, Section 12 of the Washington Constitution states;

§ 12. Special Privileges and Immunities Prohibited. No law

shall be passed granting to any citizen, class of citizens, or cor-

poration other than municipal privileges or immunities which

upon the same terms shall not equally belong to all citizens, or

corporations.

Revised Code of Washington (R.C.W. 49.60) states in part;

49.60.010 Purpose of chapter

This chapter shall be known as the Law against discrimina-

tion”. It is an exercise of the police power of the state for the

protection of the public welfare, health, and peace of the —

of this state, and in fulfillment of the provisions of the Consti-

tution of this state concerning civil rights. The legislature here-

by finds and declares that practices of discrimination against

any of its inhabitants because of race, creed, color, national

origin, sex, marital status, age, or the presence of any sensory,

mental, or physical handicap are a matter of state concern, that

such discrimination threatens not only the rights and proper

rivileges of its inhabitants but menaces the institutions and

oundation of a free democratic state. A state agency is herein

created with powers with respect to elimination and prevention

of discrimination in employment, in credit and insurance trans-

actions, in places of public resort, accommodation, or amuse-

ment, and in real property transactions because of race, creed,

color, national origin, sex, marital status, age, or the presence

of any sensory, mental, or physical handicap; and the board

established hereunder is hereby given general jurisdiction and

. power for such purposes.

49.60.030 Freedom from discrimination—Declaration of civil

rights

(1) The right to be free from discrimination because of race,

creed, color, national origin, sex, or the presence of any sensory,

mental, or physical handicap is recognized as and declared to

be a civil right. This right shall include, but not be limited to:

(a) The right to obtain and hold employment without

discrimination;

(b) The right to the full enjoyment of any of the accommo-

dations, advantages, facilities, or privileges of any place of public

resort, accommodation, assemblage, or amusement;

(c) The right to engage in real estate transactions without

discrimination;

(d) The right to engage in credit transactions without dis-

crimination;

(e) The right to engage in insurance transactions without

discrimination. Provided, That a practice which is not unlawful

under RCW 48.30.300 or 48.44.220 does not constitute an

unfair practice for the purposes of this subparagraph; and

(f) The right to e in commerce free from any dis-

criminatory boycotts or blacklists. Discriminatory boycotts or

blacklists for purposes of this section shall be defined as the

formation or execution of any express or implied agreement,

understanding, policy or contractual arrangement for economic

benefit between any persons which is not specifically authorized

by the laws of the United States and which is required or im-

posed, either directly or indirectly, overtly or covertly, by a

foreign government or foreign person in order to restrict, con-

dition, prohibit, or interfere with or in order to exclude an

person or persons from any business relationship on the basis

of race, color, creed, = sex, national origin or lawful busi-

ness relationship: Provided however, That nothing herein con-

tained shall prohibit the use of boycotts as authorized by law

pertaining to labor disputes and unfair labor practices.

(2) Any person deeming himself injured by any act in viola-

tion of this chapter shall have a civil action in a court of compe-

et — to enjoin further violations, to recover the

a damages sustained by him, or both, together with the cost

of suit ray. reasonable attorney’s fees or any other remedy

. by this chapter or the United States Civil Rights Act

of 1964; and

(3) Notwithstanding any other provisions of this chapter,

7

any act prohibited by this chapter related to sex discrimination

or discriminatory boycotts or blacklists which is committed in

the course of trade or commerce in the state of Washington as

defined in the Consumer Protection Act, chapter 19.86 RCW,

shall be deemed an unfair practice within the meaning of RCW

19.86.020 and 19.86.030 and subject to all the provisions of

chapter 19.86 RCW as now or.

The United States Civil Rights Act of 1964.

STATEMENT OF FACTS

Plaintiff Alonzo Marquez is a resident of Washington and is of

Mexican-American descent. Respondent University of Washington is

an agency of the State of Washington. Respondents John R. Hogness

and Richard P. L. Roddis were employees of the University respon-

sible for its ad. ninistration and the administration of the University

of Washington School Law (hereinafter ‘‘the law school“). Respon-

dents Board of Regents of the University of Washington are the duly

constituted governing authority for respondent university.

The law school is a division of respondent university. The law

school is the only public school of law in the state. Applications for

admission for the 1972-1975 school year outnumbered available posi-

tions by about ten to one. Students were selected on the basis of

several factors, particularly their Law School Admissions Test (LSAT)

scores and their undergraduate grade point averages (hereinafter

“GPA”). By using these two indicators, the law school derived a pre-

dicted first year averages (hereinafter “PF YA”) for each applicant.

In order, among other reasons, to achieve a reasonable repre-

sentation within the student body of historically disadvantaged

minority groups, and in order to increase the number of minority

attorneys practicing in Washington, the law school established an

affirmative action program.

Under the affirmative action program, minority applications

have been and are being accepted to the law school with PFYA’s sig-

nificantly lower than those of caucasian students.

Petitioner was accepted into the 1972-1973 entering class under

the affirmative action program with a PFYA of 66.68. There were 22

special admittees in that class, that is, students admitted under the

affirmative action program. All were minorities.

The law school required at that time that students attain a GPA

of 68.00 their first year in order to remain in school. Petitioner's

cumulative first year GPA was 63.94. At the completion of his first

year, petitioner was one of 12 students in the class who achieved

averages below 68.00. All 12 were special admittees. There were two

students with averages lower than petitioner's.

The law school faculty decided on the recommendation of

respondent Roddis to conditionally reinstate or continue all the stu-

dents who achieved averages below 68.00. Four students, including

petitioner, who were initially informed they were terminated, were

required to repeat all courses in which they received a grade below

68.00. The other eight students whose averages were below 68.00

were not required to repeat any courses, but were allowed to repeat

any course and receive the second grade. No caucasian students were

required to repeat any courses, regardless of the grade received, how-

ever they were also allowed to repeat courses and receive the second

A condition of petitioner's reinstatement was that he achieve a

cumulative GPA of 68.00 at the end of the 1973-1974 school year.

Failure to do so was to result in automatic dismissal for low scholar-

ship. The same condition and ultimatum was imposed by respondents

on the other three students. The same ultimatum was imposed on the

eight students who achieved GPA’s below 68.00.

At the end of his second year of law studies (1973-1974), peti-

tioner had a cumulative GPA of 67.725. Since his averages was below

68.00, he was terminated. However, until that year GPA was com-

puted by “rounding-off” to the nearest whole number to determine

whether a student had achieved a satisfactory average. In preceding

8 other students, after their year of law studies, who had cumu-

ve GPA’s below 68.00 were rounded-off to 68,00. These students

were retained by the law school. Petitioner was the only student in

the position to use the rounding-off policy in 1973-1974 school year.

One other student who had been required to repeat courses was

also terminated, No other students were terminated for low scholar-

ship. There was another student admitted to the law school at the

same time he was, who was also conditionally reinstated or contin-

ued at the end of the 1972-1973 school year, and who, at the end of

the 1973-1974 school year had a cumulative GPA below 68.00 and

below petitioner, but was not terminated. This student was also

Mexican-American.

In May 1974, prior to informing petitioner, that he was ter-

minated from the law school, respondents agreed to permit petitioner

to attend classes during summer quarter 1974, Petitioner wanted to

improve his GPA and increase his total number of credits. Respon-

dents further agreed that summer credits would count as residence

credits and that grades earned would be used in computing peti-

tioner’s GPA.

On or about August 15, 1974, respondents informed petitioner

that he was to be terminated from the law school and that any grades

earned during summer quarter would not count toward the calcula-

9

tion of his GPA and thus could not be used to raise petitioner’s

averages.

Dean Hunt did not follow established procedures when he ter-

minated petitioner during the summer school quarter. He did not use

the Rules for Retention and Readmission adopted by the faculty and

Deans in May 21, 1974, which stated in a nutshell;

in the case of minority students who are not meeting normal

aduating requirements, the presumption shall be that the stu-

ent will be retained and the risk is justified because of the need

of the minority lawyers in the profession,

Instead, Dean Hunt used a guideline adopted by the same faculty and

Deans on August, 1973 and dropped thereafter.

Dean Hunt admits using the May 21, 1974 Rule on the one

Mexican-American student who had a lower grade point average than

the petitioner and who was not terminated.

Furthermore, Dean Hunt did not follow the established Law

School Scholarship and Conduct Rules, which state;

by petitioner being allowed to attend summer school, he was

granted permission to continue into the third year because the

academic year includes summer, autumn, winter, and

quarter. He should have not been terminated until spring

quarter of the next year.

Thus, the law school should have allowed petitioner to complete

the summer school quarter and allow the grades to count. He peti-

tioned for reinstatement on October 2, 1975, the petition was denied

by a vote of the faculty on October 7, 1975.

A source of petitioner's failure to do well academically at the

law school was the very serious health problems he suffered while en-

rolled. He repeatedly asked respondents for a leave of absence. These

requests were always denied, Other students had requested and been

granted leaves of absence for health reasons during their first year at

the law school,

In the 1972 University of Washington Bulletin and in the Pre-

Law Handbook, their Affirmative Action program promised special

_ academic aid to specially admitted law students, The Pre-Law Hand-

book stated that, “Special programs—including recruitment, admis-

sion, and financial and 2 aid-are available for students of

minority ethnic groups.“ Petitioner was induced, in part, to attend

the law school by the agreement that academic aid would be pro-

vided. The law school in fact had no such program, Petitioner was

not able to perform satisfactorily in his first year studies without oo

cial academic aid, and respondents knew this. Petitioner repeatedly

requested such aid from the law school administrators, He was told

10

that various faculty members offered office hours, but that academic

aid (also known as formal tutorial aid) was not available for petitioner

or other special admittees.

In November 1977, petitioner filed an amended complaint

against respondents claiming that the law school had breached con-

tractual agreements with him, denied him equal protection of the law

under the State and Federal Constitutions, and violated the State

Anti-Discrimination Statute, RCW 49.60 and he sought readmission,

$250,000 damages, attorney’s fees and costs.

In 1978 the respondents moved for summary judgment. The

Honorable Gerard M. Shellan of the King County Superior Court,

thereafter, on April 17, 1978, granted the respondents motion for

summary judgment. (See Appendix A)

On April 30, 1979, the Court of Appeals, Division I, reversed

Judge Shellan's Order. (See Appendix B)

The respondents again renoted the motion for summary ju

ment in Judge Shellan’s Court and on December 31, 1979, he 2

granted summary judgment again, but stayed his decision for ninety

days to permit some deposition discovery. Thus, on July 8, 1980,

Judge Shellan entered an order incorporating by reference his Dec-

ember 31, 1979 oral opinion granting respondents’ motion for sum-

mary judgment. (See Appendix C)

On July 21, 1980, petitioner filed his appeal and on May 17,

1982, the Court of Appeals affirmed the lower court. The Court

concluded that the court did not err in granting summary Judg-

ment on the contract claims because the uncontroverted facts esta

lish that the University of Washington School of Law did not breach

its educational contract with petitioner, the record also does not

establish or raise an inference of arbitrary and capricious action on

the part of the University, the trial court did not err in granting sum-

mary judgment on the equal protection claim and lastly, the trial

court did not err by granting summary judgment on the discrimina-

tion claim because there is no evidence whatsoever that the University

—— against petitioner or treated him unfairly. (See Appen-

ix D

Petitioner filed a Motion for Reconsideration and it was denied

June 16, 1982.

Petitioner then filed a petition for review on July 16, 1982 but

was denied on October 8, 1982 by the State Supreme Court.

ARGUMENT FOR GRANTING THE WRIT

Additional reasons for granting this writ have been mentioned

above and will not be repeated in this section. A

(a) The Washington State Appellate Court has decided an im-

11

rtant question of first impression, which until now has not

en, but ought to be, decided by this Court.

The Revised Code of Washington (R.C.W. 49.60) and the United

States Civil Rights Act of 1964 as referred to by said state statute

* discrimination by the law school against students because

0 r race.

Petitioner's legal theory may be simply expressed, Under the

special admissions program, which was part of their affirmative action

program, the law school recruited and admitted petitioner and other

minority students who had lower undergraduate GPA’s, LSAT

scores, and Predicted First Year Averages than regularly admitted

students. Petitioner's Predicted First Year Average was 66.8, below

the 68.0 required to graduate. Respondents knew that petitioner and

other specially admitted students would not be able to achieve satis-

factory grades without special assistance. Despite this fact, they

failed to provide any special program of academic aid for those stu-

dents who had been specially tted.

Petitioner and all other specially admitted students are ethnic

minorities. a ge. to provide an — — for academic assistance

for those students, t lew school cee y guaranteed that petitioner

and other specially admitted students would not be able to achieve

satisfactory grades, They also virtually teed that ad-

mitted students would have a very difficult time 1 the bar

exam and being admitted to the practice of law. ony

affected by this failure on the part of the respondents were spe

admitted minority students, including 33 For this reason, the

5

law school discriminated on the basis of race in violation of the

R.C.W. 49.60 and the United States Civil Rights Act of 1964.

The effectiveness of the law school’s special admissions — —

is, thus, of critical importance to petitioner's case. To the knowledge

of the undersiened, this is a case of first impression, both in the State

of Washingto., and elsewhere. Petitioner maintains that, since the

effect of the inadequate program is felt only by racial minorities, it

is impermissible race discrimination.

The Washington Supreme Court has determined that it is con-

stitutional for the law school to institute an affirmative action pro-

gram. Defunis v. Odegaard, 82 Wn. 2d 11 (1973). Vacated as moot

and remanded, 416 U.S. 312, No action on remand, 84 Wn. 2d 617,

529 P. 2d 438 (1974). Also in University of California Regents v.

Bakke, 438 US, 265, 57L Ed 2d 750, 98 S Ct 2733, Mr. Justice

Powell suggests in announcing the judgment of the court that

affirmative action programs that have race-conscious admissions _

cies are constitutional and did not necessarily violate Title Vl of the

Civil Rights Act of 1964. Mr. Justice Marshall, in a separate opinion,

12

also suggests that affirmative action programs should not be held to

be unconstitutional.

In the trial on the DeFunis case, Dean Roddis testified concern-

ing the importance of seeking a representation in the law school of

students from minority groups. He stated that the presence of stu-

dents from minority groups is important to the educational environ-

ment of a law school, and important to providing legal representation

for those alienated from the system.

The DeFunis decision at page 33, also recognized the basic rea-

sons for secking to increase minority enrollment at the law school:

It can hardly be gainsaid that the minorities have been, and are,

22 underrepresented in the law schools - and consequently

the legal profession—of this state and this nation. We believe

the state has an overriding interest in promoting integration in

public education. In light of the serious underrepresentation of

minority groups in the law schools, and considering that minori-

ty groups ore ate on an equal basis in the tax support of the

law school, we find the state interest in eliminating racial im-

balance within public legal education to be compelling.

It is not enough simply to make special efforts to admit minority

students to the law school, however. For the opportunity to be mean-

—— and to maximize the possibility that the specially admitted

ority student will one day become a practicing attorney, it is

necessary to provide ial academic assistance after the student is

admitted. At the trial in DeFunis, then President Odegaard testified

and recognized the importance of “a certain amount of tutorial gui-

dance and counseling” in developing successful specially admitted

students.

When the special admissions program fails to provide special

academic assistance, as it did in this case, it is vi y the same as

having no special program at all. This is only one step removed from

the situation whereby minorities are admitted and then provided no

education. Such a situation is clearly not permissible.

(b) The standards applied by this court were not correctly

applied by the Washington State Appellate Court.

The Washington State Appellate Court has also decided an im-

portant question of Federal Law such as to bring that court into ap-

parent conflict with a decision of this Court on the same matter. The

question alluded to is: Whether petitioner’s equal protection rights

were violated?

The standards applied by this Court in Reed v. Reed, 404 U.S.

71, 75-76, 30 L. Ed. 2d 225, 92 S. Ct. 251 (1971); were not correct-

ly applied by the Washington State Appellate Court.

13

Petitioner agrees that the test to be applied here is that express-

ed in Reed:

A classification ‘must be reasonable, not arbitrary, and must

rest upon some pround of difference having a fair and substan-

tial relation to che object of the legislation, so that all persons

similarly cireumstanced shall be treated alike.’ 404 US. . at 76.

The “classification” here is the difference in treatment accorded

to petitioner and to others similarly situated. The question then be-

comes whether this difference is reasonable as opposed to arbitrary,

and whether it has a fair and substantial relation to a legitimate ob-

jective.

In this claim arbitrary, capricious or bad faith treatment by the

Respondents against Petitioner were shown. One only has to look at

the treatment accorded by Dean Hunt to petitioner and another

specially admitted student at the end of the 1973-74 school year.

Student number 16 and petitioner were continued after the first year

on essentially identical terms, 1) they were both required to bring

their cumulative GPA to 68 at the end of the second year or be

dropped, 2) each were allowed to retake courses, At the end of the

1973-74 school year petitioner had a GPA at 67.725 and student

number 16 had a GPA at 67.13, Student number 16 was allowed

to continue and petitioner was dropped.

Dean Hunt admits not using the established Rules for Reten-

tion and Readmission adopted by the faculty and Deans in May 21,

1974 to determine whether petitioner should be terminated, how-

ever, he used the established rules on Student number 16. This dis-

tinction, between two people similarly, eircumstanced, does not

withstand the examination required by Reed, Supra, Dean Hunt

deviated from established procedures with no rational basis, and, in

doing so, provided different treatment for the two students equally

situated. This distinction was arbitrary and not rationally related to

legitimate interests of the law school.

Furthermore, the termination of the rounding-off policy was

felt solely by petitioner in the 1973-74 school year. The reasoning in

terminating the policy was not rationally related to legitimate inter-

ests of the law school, but, one of individual dislikes of a policy that

would possibly benefit minority students. The reason given for termi-

nating the policy, that, “it was not on line with their wishes“, is not

what a rational person, given faculty status in a non-minority situa-

tion, would concur with. The faculty abused their discretion by act-

ing in bad faith an arbitrary. This was not a reasonable exercise of

their educational responsibility.

(c) The contract law standards applied by the 10th Cir. were

14

incorrectly applied by the Washington State Appellate Court.

This case has an immediate impact according to law on hun-

dredth of thousands of students in Washington and throughout the

United States attending post-secondary educational institutions.

Certainly, the contractual relationship between student and his

institution has been judicially acknowledged, as shown by the cita-

tions in the opinion of the Washington State Court of Appeals,

Appendix D, but elaborations such as furnished in the Washington

State Appellate Court’s opinion in this case has first impressions as

to Affirmative Action Programs and their contractual implications.

When petitioner applied and was admitted to the University of

Washington Law School, as an ethnic minority, the law school’s Pre-

Law Handbook of the Association of American Law Schools pro-

vided, in part;

Special Programs including recruitment, admission and finan-

cial and academic aid are available for students of minority

ethnic groups.

The above language became part of the contract, the law school

breached that agreement, by not providing what was publicized in

their Pre-Law Handbook, that is, a formal tutoring program for

Special Admittees. This publicized Special Program was in practice

prior to petitioner's first year and continued to be publicized but not

75 * two and a third years petitioner was a student at the

school.

The Washington State Appellate Court concluded that the Pre-

Law Handbook did no more than announce that certain programs“

including “academic aid“ to certain prospective students “are avail-

able”, Furthermore, it did not tie the law school to a specific program

or type of “academic aid“. (See Appendix D at 4 and 5)

The Washington State Appellate Court's decision to modify the

contract by changing the word of Special to Certain does not with-

stand the standard, upheld by Slaughter v. Brigham Young Univ.,

514 F. 2d 622, 627, (10th Cir.), Cert. denied, 423 U.S. 898, 46 L.

Ed. 2d 131, 96 S. Ct. 202 (1975); where it states a Court cannot so

modify the student code,” The same should be held for this case that

is, the court cannot modify the law school Affirmative Action Con-

tract with petitioner, nor its rules-regulations-policies-publications.

The law school is bound to adhere to the special programs pub-

lished in their Pre-Law Handbook. The Special Academic Aid Program

meant a formal structurized tutorial assistance program.

The key word is Special, which means:

“relating to or designating a species, kind, individual, thing, or

15

sort: designed for a particular purpose; confined to a particular

purpose, object, person, or class. Unusual, extraordinary.”

Black's Law Dictionary at 1569 (4th Edition) (1968).

Special is different from certain and it establishes a specific type of

academic aid or unusual type of academic aid.

Petitioner came to this law school relying on the representation

and agreement that Special Academic Aid would be available. The

subsequent acts of respondents indicated that they knew of this

agreement, but did nothing to fulfill it. At the end of petitioner’s

first year the faculty voted down a program which would have pro-

vided special tutoring, at least for those in academic trouble. It was

not until May 14, 1974 that Dean Roddis proposed a program of

Special Academic Aid. Such a program was implemented for fall

quarter 1974. It should be noted that the improvement in the perfor-

mance of Specially Admitted Students corresponds with the start of

this program.

The same said argument should be used to contradict the deci-

sion of the Washington State Appellate Court when it decided that

there was no separate agreement to permit petitioner to attend 1974

summer quarter and have his grades count toward his cumulative

grade point average. (See Appendix D at 7) Again the Washington

State Appellate Court modified our agreement by not allowing this

part of the agreement to be enforceable.

(d) Did the Washington State Appellate Court err in holding

that summary judgment without a trial on the merits was the

appropriate procedural method of dealing with these issues?

On review, the United States Supreme Court will look at record

on summary judgment in light most favorable to party opposing mo-

tion for summary judgment. Poller v. Columbia Broadcasting System,

Inc. (1962) 368 U.S. 464, 7L Ed. 2d 458, 82 S Ct 486.

The Washington State Appellate Court did not comply with

Rule 56 of Civil procedure because said Court did not resolve whether

there were no genuine issue of material fact as to all the issues. Gavin

v. Peoples Natural Gas Co. (1980 CA3 Pa) 613 F2d 482.

It was the duty of said court to take everything in record (plead-

ings, depositions, interrogatories, affidavits) to demonstrate that no

genuine issue of material facts exists. Keiser v. Coliseum Properties,

Inc. (1980, CAS Ga.) 614 F2d 406.

There were factual issues that were unresolved such as special

academic aid, race discrimination, contracts, equal protection, modi-

fication of the contract, reasonable and expectations standards, and

an expert opinion concerning ambiguity in the contract. Further-

more, other facts concerning whether the respondents adhered to es-

16

tablished rules, regulations, policies and publications were either

overlooked or totally ignored.

These factual issues are which the outcome of this litigation

depends in whole or in part. Balise v. Underwood, 62 Wn. 195,

381 p. 2d 966 (1963).

The Washington State Appellate Court’s omission of the above

factual issues released ndents from their burden to show that

there is no genuine material issue of fact. Quadra v. Superior Court

of San Francisco (1974, DC Cal) 378F. Supp. 605. So, all reasonable

inferences from the evidence were not resolved against respondents.

Barber v. Bankers Life and Gas Co., 81 Wn. 2d 140, 500 p. 2d 88

(1972).

Thus, the said court did not adhere to its duty to view all evi-

dence avid reasonable inferences there from in a light more favorable

to petitioner. Sommer v. Hilton Hotels Corp. (1974, DC NY) 376 F.

Supp. 297. Balise, Supra.

Summary judgment should not have been granted because the

entire record A4 not show the right to radgment with such a clarity

as to leave no room for contro — it did not establish affirma-

tively that agree cannot prevail under any circumstance. Prince

v. Pittston Co. (1974, DC W Va). 63 FRD 28.

CONCLUSION

For the foregoing reasons, it is respectfully submitted that this

Petition for a Writ of Certiorari should be granted.

Dated this 27th day of December, 1982.

onzo quez

Route 1, Box 187

Outlook, Washington 98938

Phone: (509) 837-5806

17

APPENDIX TO

Petition For Writ of Certiorari to the Court of Appeals of the State

of Washington,

Appendix A

Appendix B

Appendix C

Appendix D

Appendix E

Appendix F

APPENDIX INDEX

Opinion of Judge Gerald M. Shellan,

King County Superior Court, for the

State of Washington

Opinion of the Court of poe

Division one of the State of Washington

Oral decision of Judge Gerald M. Shellan,

King County Superior Court, For the State

of Washington

Opinion of the Court of Appeals Division

one of the State of Washington

Motion for Reconsideration denied

Petition for Review denied

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26

28

37

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