Appendix — Marquez v. University of Washington

APPENDIX “A”

(Filed April 10, 1978, Superior Court of the State of Washington

for King County)

SUPERIOR COURT OF THE STATE OF WASHINGTON

ALONZO MARQUEZ,

Plaintiff, NO. 825250

vs. Memorandum

Opinion

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,

Defendants.

ee NN ee ee ee ee —— ee

Defendants move for summary judgment to dismiss plaintiff's

claim which is predicated on three principal issues, to wit:

1. Defendants discriminated against plaintiff and in so doing

violated RCW 49.60.

2. Defendants violated plaintiff's right to equal protection under

the federal and state constitutions.

3. Defendants breached the contractual agreements with the

plaintiff resulting in damages to plaintiff.

The factual background leading to this action may be sum-

marized as follows:

Plaintiff, a member of a minority group, was admitted to the

law school as a special admittee under its Affirmative Action Pro-

, and enrolled in the fall quarter 1972. At the end of plaintiff's

irst year, his cumulative e a was 63.94, equivalent to a D

average and substantially below the 68 average which students must

earn in order to continue law school. During said first year, plaintiff

had received failing grades (below 60) in contracts, civil procedure

and property 1, in addition to which plaintiff withdrew from two

other courses.

Prior to the 1972 school year, the law school had rated ail appli-

cants using a combination of their scores on the LSAT (law school

aptitude test) and their undergraduate grades. Such rating is known

as the “predicted first year average. Plaintiff's PF YA was 66.68.

19

There were approximately 21 minority students in said law

school class. Plaintiff was one of 12 students in his class who earned

a cumulative grade average of less than 68 for the first year. All 12

were special admittees. Based on established procedure and guidelines,

the law school’s faculty committee on admissions reviewed the re-

cord of all 12 students. Each of them was evaluated individually

based on certain established standards and guidelines which included

the student’s prospect for improving performance, the overall pattern

and level of grades, number of classes dropped, grades below 60 and

many other nal factors. As a result Tics evaluation, 8 of the

12 students, based on the committee’s recommendation were allowed

to remain in school conditioned on their improving their cumulative

ade average to 68 by the end of the second year. The remaining

our students, including plaintiff, were terminated. However, the law

school Dean thereafter sent a request to all members of the faculty

proposing that these four terminated students be readmitted and

thereby extend the law school’s effort to administer a viable minority

legal education program. Based on such recommendation, a special

faculty meeting was held and the Dean’s proposal accepted.

These four students, including plaintiff, were subject to different

conditions on their remaining in schocl as compared to the other

eight students who had likewlse failed to receive passing grades. The

four were required to repeat all classes in which they had not received

a 68 average or better grade. However, they were extended the addi-

tional concession to drop the lower grade for any course which was

repeated rather than counting it in the overall average. In comparison,

the other eight students were not allowed to expunge any of the

lower grades they had earned during their first year.

As a result thereof, the plaintiff's grade average, at the end of

the second year, — chree replacement grades for the ones

dropped when he entered first year classes, was 67.725. Plaintiff was

one of four students with grades under 68, and all of said students

were members of a minority group and special admittees.

The law school faculty had previously recommended to have

the Dean decide on further termination of students with failing

grades and guidelines for this procedure were set up. Consequently,

“gr and two other students with failing grades were terminated

y the Assistant Dean after conferring with the Dean and soliciting

comments from each student and faculty members. The fourth stu-

dent with a grade point average of 67.13 was allowed to remain since

he was one of the eight students at the end of the first year who was

not allowed to drop any low grades in caleulating cumulative grade

averages and he was therefore in a different position than plaintiff.

The record is quite clear and convincing that in making the deci-

20

sion to terminate plaintiff, the school considered the overall pattern

of plaintiff's 22 his motivation and other particular circumstances

which plaintiff and faculty members had presented. It was the Dean’s

conclusion that plaintiff did not have a reasonable prospect of meet-

ing the normal graduating requirements of the law school. Among

the facts considered by the Dean was the scoring achieved by plain-

tiff in retaking three first year classes in which he had originally scored

less than 60 and had scored no higher than 65 on his second attempt.

Plaintiff and his attorney were advised of their right to petition

for faculty review of the Dean’s decision but did not take advantage

of that opportunity. In May of 1975, plaintifi filed a petition for re-

admission at which time he had enrolled in some law classes for the

summer quarter of 1975, as a non-law student. He failed three of the

four summer courses and again was denied readmission. The faculty

in the fall of 1975 voted 25 to 0, with three abstentions, to deny

plaintiff’s petition for readmission. Plaintiff was present at the meet-

ing and made a presentation on his own behalf.

Plaintiff claims that the law school discriminated against him;

knowing that he was a special admittee with a below passing PFYA,

it was duty-bound to provide him with special academic aid and assis-

tance to overcome his deficiencies. In addition, plaintiff’s other

claims may be summarized as follows:

1. Plaintiff’s termination was a violation of the equal protec-

tion clause in that other students who likewise failed were allowed to

remain;

2. Failure of the school to round-up his grade to a passing one

as previously practiced by the school; and

3. Refusing to allow plaintiff medical leave when it should

have been obvious to the law school that such should have been granted

and that others, similarly situated, were afforded leaves of absence.

4. The law school and plaintiff had entered into a contract,

based on his admission and the information then made available to

8 which agreement ovided that academic assistance would

furnished to him which the school failed to do; and to allow plain-

tiff's grade for the summer quarter of 1974 to count toward his

cumulative average at the end of the second year.

It would also appear that during the school years of 1972-1973

and 1973-1974, the law school had no formal tutoring program for

special students under its Affirmative Action Program. Such a pro-

gram had existed in the past and due to some objections by special

admittees to be singled out for such a program, it apparently was

dropped. However, in the spring quarter of 1974 an informal arrange-

21

ment for tutorial assistance to special admittees was made available

and plaintiff was so advised. In addition, of course, the usual con-

tact between students and members of the faculty was available and

faculty members were encouraged to assist students whenever a

student felt that he needed special, individualized assistance. There

were also review and student sessions for groups of students who in-

dicated a need for such help.

There has been no showing made that the law school had any

established policy allowing leaves of absence for medical reasons dur-

ing the first year, Plaintiff has not shown any violation or non-adher-

ence to said “policy”.

It goes without saying, based on the case of De Funis v. Odegaard,

82 Wn 2d 11 (1973), that the elimination of serious racial im ces

caused by the under-representation of certain minorities within —4

lic legal education constitutes a compelling state inte est. Therefore,

the providing of increased educational opportunities to selected racial

minorities by favoring such minorities in the law school's admission

policy is necessary whenever racial imbalance in both school and in

the professions it serves exists and should be eliminated. These are

worthwhile goals which should continue to be nurtured. A coro

to the foregoing is the right of the administrative body, absent arbi-

trary or capricious action, to duly evaluate the total record of stu-

dents who fail to meet the standards and requirements of the law

school; a determination by such administrative body when exercised

honestly and upon due consideration of the facts, even if there is

room for two opinions, must be upheld.

However, the state also has a compelling interest to insist that

those aspiring to become members of a certain learned profession

which holds itself out to the public as having reached a high ee

of deficiency, must be able to meet certain minimum stan of

proficiency, expertise and intellectual achievement. The gravamen of

plaintiff's action revolves itself around the school's alleged failure to

do more than merely admit him to the law school on a special pro-

gram, not available to non-minority applicants, since such admission

simultaneously imposed the additional duty on the law school, being

aware of plaintiff's deficiencies, to qtr more and separate acade-

mic aid and assistance so as to enable plaintiff to meet the minimum

standards imposed on all. How far must a state supported institution

go to provide such additional benefits to a member of a minority,

once the school lowers its scholastic standards to admit such a mem-

ber to pursue a career in a learned profession? Is this primarily a legi-

slative matter or does special admission to a law school, under these

facts, likewise impose a parallel duty on the state to provide a greater

22

degree of special education, not available to others, and does a failure

of such action constitute discrimination under the law?

The court must find that under the now universally established

principles of affirmative action, plaintiff was granted certain benefits

not available to non-minority students and any discrimination exist-

ing was in favor of plaintiff, not against him! RCW 49.60 proscribes

certain conduct of discrimination AGAINST an individual. Such is

not the situation here since plaintiff was granted additional opportu-

nities, not available to others, inclu taking of repeat courses,

the privilege to expunge poor grades for the purpose of raising his

grade average, etc, Absent any legislative directive, the court is unable

to find any discriminative activity by the law school against this plain-

tiff on the record before it. The road travelled by a law student

toward mena his degree is a long, difficult and arduous one which

imposes on such student, whether mage admitted or not, a con-

tinuing duty to search out, sometimes on his own, the help of other

students, upper classmen, instructors and other members of the fa-

culty to assist him in overcoming any deficiencies. To paraphrase

Justice Holmes’ somewhat outdated comments many 8 pew ago that a

22 may have a constitutional right” to a general education, but

e does not have a constitutional right to be a lawyer or a doctor!

At what stage of a student’s educational pursuit may a univer-

sity, acting upon established guidelines, conclude that a student does

not possess the necessary proficiency, intellectual stimulus or motiva-

tion to be a lawyer and therefore terminate him? Is the burden of

urd on the University to make a showing that every conceivable aid

as been provided to such student prior to termination or is it suffi-

cient to — that a reasonable effort has been made to rehabilitate

such student by means of different opportunities to ee,

and which opportunities were not available to non-minority students?

The court concludes that the affirmative action program is of a

compelling state interest to assure the admission to the bar of quali-

fied members. of minorities and such policy includes the lowering of

admission standards and the granting of special benefits, not available

to others, to accomplish such fy oc However, the University is

only obligated, absent some other legislative determination, to pro-

vide reasonable assistance, once a student has been especially admitted,

and the Univeristy does not have a duty to explore every conceivable

means of extra academic aid to assure the development of a compe-

tent lawyer. Here plaintiff was afforded reasonable and adequate op-

portunity to meet the minimum standards of scholastic achievement,

extended over a period of two years. Unfortunately, he failed to

meet that test.

The court further finds that the defendants did not violate plain-

23

tiff’s right to equal protection under either the federal or state con-

stitution. Law school admissions an extremely complex prob-

lem and require a very delicate cing of diverse factors, The

dean's office and faculty committee sought to identify, by adhering

to established guidelines, within the minority category those ns

who had the bighest probability of succeeding in law school. Such

classifications and determinations were made on a very reasonable

basis, although not made with mathematical nicety or absolute cer-

tainty. Here the criteria for admissions and the treatment of plaintiff

and other minority students subsequent to admission were not arbi-

trary and capricious in any way; therefore, the court will not vitiate

the judgment of the dean and faculty committees, who are best qua-

lified by training, expertise, and personal knowledge of the student,

unless a constitutional violation is shown. Law school admissions

need not become a game of numbers; the process should remain sen-

sitive and flexible with room for informed judgment and interpret-

ing mechanical indicators. The school authorities, of necessity, must

have some reasonable amount of faculty discretion in admitting,

readmitting or terminating a student and the school faculties’ decision

must — some freedom from interference from other non-educa-

tional tribunals, It is only when the school authorities abuse this dis-

cretion that a court may interfere with their decision to dismiss a

student. The court is unable in this case, to find any abuse of discre-

tion or any arbitrary or capricious action on the part of the defen-

dants in their evaluation and final dismissal of plaintiff.

Finally, plaintiff's a of breach of contract must be con-

sidered, Plaintiff premises his allegation on three contracts between

him and the University of Washington Law School, namely (a) an

agreement to provide him with academic assistance; (b) an agreement

to allow his grades for summer quarter 1974 to count towards his

cumulative average at the end of the second year; and (c) an agree-

ment to continue to round up all accumulated grade point averages.

It would appear that for some years past a practice had prevailed

to allow grades to be rounded up, although the law school faculty

voted in June of 1968 not to round cumulative student grades to the

nearest whole number; through some misunderstanding that practice

had never been instituted in the 's office. The matter was

raised again in a faculty meeting in March of 1973, at which time the

faculty took similar action. Thereafter, the registrar adhered to the

faculty's determination. The record is clear that whether grade point

averages are rounded up or not, all students in plaintiff's class were

treated on the same basis. There was no separate agreement between

defendant and plaintiff on that issue, Likewise, the court is unable to

find any agreement between plaintiff and the law school regarding

24

his summer 1974 grades to count toward his cumulative average at

the end of the second year. In any event, the record is clear that even

allowing such cumulative averaging, it would not have helped plain-

tiff to achieve a passing grade.

Lastly, plaintiff places considerable reliance on the following

excerpt from the prelaw handbook of the Association of the Ameri-

can Law Schools reading as follows:

“Special programs—including recruitment, admission, and finan-

cial and academic — — for students of minority,

ethnic groups.“ (Emphasis ours).

It is plaintiff's claim that the above clause would constitute a

contract on which he had a right to rely. The court does not believe

that the above excerpt, by itself, would constitute an en-

forceable contract since its language is too broad to be specifically

enforaceable, and there is no clear-cut showing that there was a meet-

ing of the minds between the parties, together with a mutual intent.

At best, the above quote constitutes an invitation or announcement

to those students who are interested in the aid offered, the size, na-

ture and details of any such aid being subject to agreement between

the parties. There was no express agreement here.

In conclusion, the court finds that there is no genuine issue as

to any material fect relating to plaintiff's claim that defendants vio-

lated the state's anti- discrimination law; nor is there any genuine issue

on plaintiff's claim as to an alleged violation by defendants of plain-

tiff’s right to equal protection under either the federal or state con-

stitution or as to any breach of contract. The defendants have not

committed, under the peculiar and distinct facts of this case, an

actionable wrong under any of the theories set forth in plaintiff's

complaint, Therefore, defendants’ motion for summary judgment is

granted.

DATED this 10th day of April, 1978.

Judge

25

APPENDIX “B“

(Filed April 30, 1979, Clerk, State of Washington Court of Appeals)

IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON

of Wash n RICHARD RODDIS, Dean of

the School of Law; and BOARD OF REGENTS

OF THE UNIVERSITY OF WASHINGTON,

ALONZO MARQUEZ, ;

Appellant,

v. 6 NO. 6581-1

UNIVERSITY OF WASHINGTON; )

JOHN HOGN®SSS, President of the University ; DIVISION ONE

)

)

)

)

Respondents,

JAMES, J. — In 1972, Alonzo Marquez, a Mexican-American,

was admitted to the University of Washington Law School under its

affirmative action program for minority applicants. After 1 year of

school, Marquez and certain other admittees in his entering

class were initially terminated for poor scholarship. Subsequently,

the faculty voted to allow them to continue, conditioned upon cer-

tain improvement of their grade point averages by the end of their

ani ng After 2 years of school, Marquez was terminated per-

manently. ü

Marquez brought this suit against the Law School and its offi-

cials (collectively Law School) seeking reinstatement and m

d s. He alleges the denial of equal 3 the violation of

the Washington Law Against Discrimination, RCW 49.60, and breach

of contract. The trial judge granted summary judgment in favor of

the Law School and dismissed the suit.

4 — of once. contentions on aed is that 7 bey: was not

pe for summary judgment. We agree. At the time o summary

judgment hearing, Marquez had N outstanding to compel the

Law School to answer certain of his interrogatories. Although Mar-

uez had not noted his motion for hearing, his trial brief in opposi-

n to the Law School's summary omg motion noted its pen-

dency. Under these circumstances, we hold the trial judge erred in

granting summary judgment.

A motion for su judgment should be granted only if,

after considering 8 affidavits, depositions, and all

26

reasonable inferences drawn therefrom in favor of the non-mov-

ing party, a trial court determines that there is — orp issue

as to any material fact and the moving party is entitled to judg-

ment as a matter of law....A judgment should not

oe a as a means to “cut litigants off from their right to a

tri Ras

(Citations omitted.) Garbell v. Tall’s Travel Shop, Inc., 17 Wn. App.

352, 353, 563 P. 2d 211 (1977). Until the Law School provides dis-

covery, 3 a genuine issue of material fact exists cannot be as-

certained.

We do not reach the other issues presented by Marquez’ appeal.

Reversed and remanded for proceedings consistent with this

opinion.

Chief Judge

WE CONCUR:

27

APPENDIX C“

(Filed December 31, 1979, eats Court of the State of Washington

for King County)

IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON

IN AND FOR THE COUNTY OF KING

ALONZO MARQUEZ,

Plaintiff,

-—vs—

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,

No, 825250

— — ee —— — —-— — ee ee —

Defendants.

VERBATIM REPORT OF PROCEEDINGS

COURT'S ORAL DECISION

BE IT REMEMBERED, That on the 31st day of December,

1979, at the hour of 8:35 o’clock a.m., the above-entitled and num-

bered cause came on regularly for hearing before the Honorable

GERARD M. SHELLAN, one of the Judges of the above-entitled

Court, sitting in Department No. 32 thereof, at the King County

1 the City of Seattle, County of King, State of Wash-

gton.

The plaintiff appeared by and through his counsel, ANTONIO

R. SALAZAR, (of Donald, Hoague & Bayless);

The defendants appeared by and through their counsel, STE-

PHEN M. TODD, (of Reed, McClure, Moderi & Thonn, P.S.).

WHEREUPON, the following proceedings were had, to wit:

THE COURT: Good morning.

Please be seated,

This is in the case of Alonzo Marquez, plaintiff, vs. University

of Washington, and others, Cause No. 825250.

28

First of all, I want to thank counsel for their excellent presenta-

tion, all the numerous briefs and affidavits you have submitted to me.

_ This is defendants’ second motion for summary judgment in all

issues.

Plaintiff commenced this action on March 7, 1977; thereafter

amended his complaint and alleging among others, discriminatory

practices by defendants in violation of state law, namely, RCW 49.60;

violation of plaintiff's rights under the state and federal constitutions’

equal protections laws, and various agreements and contractual ar-

rangements between defendants, resulting in damages to plaintiff in

the amount of $250,000 for loss of income and other damages; seek-

ing reinstatement to the University of Washington Law School, and

praying for additional relief.

Defendants had moved for summary judgment the first time in

March of 1978. By memorandum opinion of this Court on April 10,

1978, summary judgment was granted.

Thereafter, plaintiff appealed.

On April 30, 1979, the Court of Appeals, Division No. 1, re-

versed and remanded on the ground that at the time of the summary

judgment hearing, plaintiff had an unnoted motion outstanding to

compel defendants to answer certain interrogatories.

The merits of the case were not reached by the Appeals Court.

Neither plaintiff’s nor defendants’ then counsel, in oral argument

before this Court on defendants’ first motion for summary judgment

brought up at any time the matter of the unanswered interrogatories.

Reference is made to the Court’s memorandum opinion of April

10, 1978, as to the findings then made. They need not be repeated

here, except as supplemented herein below.

After defendant had filed his new motion for summary judg-

ment, plaintiff gave notice of his desire to take depositions of certain

individuals; including the then Dean of the Law School and other law

professors.

On December 21, 1979, extensive ment was presented to

this Court on several issues with emphasis by plaintiff on the defen-

dants’ failure to grant him sick leave and/or the right for him to with-

draw from law school, the defendants’ contractual breaches, includ-

ing the interpretation of the term “academic aid.”

This Court has carefully reviewed all the memoranda, briefs,

affidavits, interrogatories, as well as the three volumes of court

records.

I’ve also reviewed the second supplemental brief and affidavit

29

received from plaintiff on December 28, 1979.

The Court concludes that the answers to the eleven interroga-

tories primarily dealing with sick leave and leaves of absence which

were then outstanding upon argument on the defendants’ first mo-

tion for summary judgment last year, do not create any genuine issue

of material fact which would warrant a trial on such issues.

The total record on said issues reveals conclusively that first-

year students were not entitled to leaves of absence. The Law School

catalog clearly set out its policy on withdrawals.

The plaintiff, however, has cited two instances occurring after

his termination from the law school where:

(a) One student in good standing, whose mother had be-

come seriously ill, and who depended on her son for substantial

support, was allowed to withdraw under these extraordinary cir-

cumstances; and

Second, a female student in good standing was granted

ro ag leave in her second year, and then was later read-

mitted.

No other instances of withdrawal or leaves of absence not in

compliance with the then existing policies and guidelines of the

school were known.

The Court concludes that plaintiff cannot rely on the above two

situations to complain about any discriminatory practice against him

in violation, or violations of his constitutionally-protected rights. Nor

is there any credible evidence whatever that the defendant, its staff,

administration, or faculty, had acted arbitrarily or capriciously on

these issues.

The above two instances relate to different time and different

fact patterns. Plaintiff would not be entitled, as a matter of right,

to demand the same relief in contravention of established guidelines

and rules applicable to all others.

Plaintiff next raised the issue of contractual breaches arising out

of wertain wording in the 1972-73 prelaw handbook of the Associa-

tion of American Law Schools the Law Admissions Council, as

relating to the University of Washington Law School:

“Special Programs—Including Recruitment, Admissions

and Financial and Academic Aid—are available for students of

minority ethnic groups,”

and end of excerpt from the prelaw handbook.

Plaintiff has raised a very interesting issue. It is plaintiff's posi-

tion that the term — aid” — into an — con-

30

tractual relationship when the plaintiff elected to enter law school as

a qualified member of a minority group, and that the law school was

then legally obligated, under these particular circumstances, to pro-

vide him with special “tutorial aids.” Tutorial aids.“

It is the plaintiff's position that the term academic aid” is

practically synonymous with the term “tutorial aid.“

In addressing this issue, this Court will consider both references

to “financial and academic aid,” Are such terms definite and certain

enough, subject to pag performance? And do they entail the

necessary elements of a contractual relationship, to wit, an offer and

acceptance, mutually of assent, namely, meeting of the minds as to

the essential terms of the contract? I. e., does the term “financial aid,”

without more, in the handbook, contain a promise by the alleged

offeror, in this case the University of Washington Law School, to pay

all of a student’s financial needs throughout law school? Or does

such notice or invitation advise the student that some financial assis-

tance may be available subject to terms and conditions to be worked

out between the school and the applicant, depending on his or her

need, and the ability of the public institution to garrer enough funds

to provide such help to those in need?

Absent arbitrary or capricious conduct, or violation of any law,

or mandate of the law school, the issue of “financial aid” by the stu-

dent versus the availability of public funds for such purposes, has to

be carefully Ma oe and apportioned by the school authorities pre-

dicated on established guidelines.

Thusly, the term “financial aid” by itself does not rise to the

dignity of an enforceable contract merely by a student’s election to

enroll at the University of Washington Law School, whether under

any affirmative action program or not.

Let us now proceed to the matter of “academic aid” as pro-

pounded by plaintiff.

In his brief of December 19, 1979 -an excellent brief, inciden-

tally—plaintiff frames the issue quite succinctly; namely, (In my

opinion this is the crux of the matter.)

“Would a reasonable person in Alonzo Marquez’s position,

given all the attendant circumstances, believe that the law school

would provide him with academic assistance if he enrolled at the law

school as a specially-admitted minority student? And did such

belief translate into a contract by nis act of enrolling at the Univer-

sity of Washington Law School?”

Unfortunately, for plaintiff, the elements required for the

formation of any contract, as set forth above, cannot be vitiated

31

because of some personal belief, hope, or expectancy on the part

of one party only. There must be a meeting of the minds without

which the parties would act in a vacuum.

The Court concludes, as a matter of law, that the phrase “‘aca-

demic aid,” same as the term “financial aid,” by itself, as interpreted

by plaintiff, is too broad and indefinite to result in an enforceable

contract upon an applicant’s enrollment in school.

Academic aid certainly may, and often does, include special

tutoring on a one-to-one or group basis. That is not to say that such

aid may not take a variety of various forms and means, such as those

extended to plaintiff and established by the University at the time.

If such phrases, as above quoted, without more, do constitute a

distinct offer acceptable upon enrollment by the student, then let us

ponder, for just a moment, the consequences of similar phrases fre-

quently found in schools’ handbooks:

“Our graduates are leaders in the legal/medical profession.”

“Job assistance provided upon graduation.”

“Our teaching faculty is unique.”

“Our graduates are eagerly sought after by government and

private industry alike.”

And many of these like it.

What are the legal consequences to an institution of higher

learning when a student enrolls after perusing such handbook?

Possibilities are unlimited. However, none of them can be con-

sidered an unqualified offer, subject to acceptance by mere enroll-

ment and enforceable 5 thereafter.

However, let's assume that the term “academic aid” was an offer

which ripened into a contractual arrangement in this case after the

student enrolled and entered law school, and quoting and reading

from the handbook.

At the time of plaintiff’s acceptance in the fall of 1972, twenty-

five other minority students were admitted, of which total twenty-two

were special admittees, Admittees. All members of a minority.

Of these, seventeen graduated. About seventy-seven percent.

Two of them progressed no further than the first year. And plaintiff

was one of three special admittees who attended beyond the first

year, but failed to graduate.

Plaintiff was one of twelve students, after the first year, who

failed to reach the required sixty - eight percent a . Plaintiff's

cumulative grade point average after the first year was 63.94.

32

He had failed courses in contracts, civil procedure, and property

1; all three of which are basic required first-year courses. He had with-

drawn from two other courses.

To determine whether defendants violated any of plaintiff's

constitutional protective rights, or engaged in any discrimina

ices, or breached any enforceable contractual rights to plaintiff,

us look at the record as submitted to this Court:

(a) Co to the vote of the law school’s committee

on admissions and readmissions to drop plaintiff for insufficient

scholarship, plaintiff appealed to the . and was readmitted

when the faculty reversed the decision of the committee and

allowed plaintiff to continue subject to certain conditions:

(a) to repeat all classes in which a below sixty - eight

grade had been received; and

(b) special permission to drop the lower grade of the

submitted course rather than the cumulative overall grade

average.

It must be remembered, at the end of the first year, twelve stu-

dents failed; all minority members.

Each case was considered and evaluated on its merits, including

the overall pattern and level of grades, including those under sixty

percent.

Personal factors which may have contributed to the students’

low motivation and prospects for performance were considered.

Eight of the students were allowed to remain, initially all of whom

had higher grade a than plaintiff on the express condition that

they would be required to raise their overall average above sixty-eight

in the second year. Those eight were not allowed to drop any course

with the lower grade.

The other four students were dropped initially and readmitted

2 the special admission of the Dean of the law school, as above

stated,

There were many notable differences in these two groups of

these eight students and four students, respectively, as more specifi-

cally set forth in the affidavit of the then Assistant Dean, Robert S.

Hunt.

The Court is unable to detect or infer the slightest irregularity

in the Len, or classification of the failing students. In fact,

every effort was made to accommodate those who were earnestly

and diligently seeking a second chance.

At the end of the second year four members of this class, inclu-

33

ding plaintiff, had failing grades again. That means under sixty-eight.

At that time plaintiff's grade , including three replace-

ment grades for repeat courses, then —2 67.725; 67.725,

Plaintiff and one other student were members of the group of

four which had been at the bottom of the first-year class. Three stu-

dents were then finally terminated by the Dean in September of

1974; after additional consultations with the Assistant Dean, Mr.

Charles Z. Smith, and solicitation of, and comments from, each

student and all faculty members in whose classes these students have

been enrolled.

Although plaintiff also complained that his 1974 summer 7

were not included in his overall average, any such inclusion for the

summer of 1974 would not have improved plaintiff's standing.

After enrolling originally for thirteen hours of law studies during

the summer of 1974, he withdrew from one three-hour class; one

class was cancelled, apparently due to the illness of the instructor;

another three-hour plaintiff received an incomplete; another,

his grade was forty-four.

Plaintiff and his then attorney were duly advised of the right of

sppeal after the September, 1974, termination, but later abandoned

eir election to do so.

In addition to concessions and rights granted to plaintiff, mem-

bers of the faculty in the period in question, 1972/1974, provided

some review and study sessions, as well as counseling, upon requests.

— groups were organized for such purposes on a fairly regular

Plaintiff, in his answer to interrogatories, especially No. 20,

admits, at least in part, the existence and availability of such assis-

tance; including review and study sessions by his professors, as well

as study group sessions by students themselves.

Plaintiff also received some private tutoring from his former

attorney, a member of the Washington State Bar.

Dean Hunt’s affidavit reveals that no formal tutoring program

existed for special admittees during the school years of 1972 to 73

and 1973 to 1974.

According to Dean Hunt's affidavit, which is uncontradicted,

such programs had existed prior to that time, but had been objected

to by special admittees on the grounds that they did not wish to be

singled out in a formal paternalistic tutoring session.

In the spring of 1974 informal tutoring assistance was made

available to special admittees. According to Dean Hunt's affidavit

34

notice of this was given to plaintiff of such ent, but was not

responded to by plaintiff. Plaintiff denies such notification from

Dean Hunt.

Plaintiff's counsel and plaintiff's affidavit provide some addi-

tional information as to certain changes in ing policy which was

adopted by the law School in May of 1974, allowing courses to be

repeated and adjustment in grades.

However, in the Court’s opinion, the 5 issue is a policy

of the law school as it existed at the time of plaintiff's unsatisfactory

scholastic performance. The evidence is overwhelming that plaintiff,

and several others, were then granted academic concessions not then

available or offered to others.

Based on the foregoing resume of special academic considera-

tions granted plaintiff and others similarly situated, one must reach

the inescapable conclusion the plaintiff was extended every reason-

able opportunity to succeed in law school.

No case has been cited, and the Court is unaware of any rule

of law that would impose a mandate on a public or private educa-

tional institution, i. e., University of Washington Law School, under

the circumstances disclosed by this record to assure or guarantee the

“making of a lawyer.”

The function of such institutions, and the implementation of

any affirmative action program, is to afford every reasonable oppor-

tunity to such qualified student to succeed. But the major contribu-

tion must, of necessity, be borne by the individual himself and not

by the state.

Motivation; devotion to the law; perseverance; and addiction to

serious studies, are the basic ingredients of anyone seeking such pro-

fessional_career.

Finally, absent arbitrary or capricious behavior, or violation of

any law of public policy, the matter of admission, readmission, or

termination of a student, should be left to those best qualified by

learning and expertise, their familiarity with the problems, the

students, and the curriculum; namely, the administration, the staff

and faculty of such institutions, and not the judiciary.

The Court, therefore, concludes, as a matter of law, that there

is no genuine issue of any material fact as to the matters submitted

in connection with the defendants’ second motion for summary

judgment. .

Such motion is granted on all issues raised.

The Court's order is stayed for a period of ninety days to allow

35

plaintiff to complete his pretrial discovery, if such additional time is

required by plaintiff.

If any genuine issue of material fact should develop as a result

of such er pretrial discovery during such extended 90-day od,

it should be immediately brought to the Court's attention for any

reconsideration of this order.

This completes the Court's memorandum opinion on this issue.

Are there any questions?

MR. SALAZAR: Your Honor, will that be ninety days

from today?

THE COURT: Yes. Let me ask counsel,

Do you believe that ninety days will give you sufficient addi-

tional time?

I notice that you have noted the deposition of the Dean some-

time the first week in January.

MR. TODD: That's correct.

THE COURT: You wanted to take some additional two

depositions,

MR. TODD: Two or three additional ones, yes.

THE COURT: Do you believe ninety days reasonable un-

der the circumstances and allow you to complete your discovery?

MR. TODD: _I think it's sufficient time, Your Honor.

THE COURT: Ninety days from date.

That brings us up to the end of March. I don't have a calendar

here, but I assume March 31, 1980, unless that’s a Sunday.

MR. SALAZAR: Your Honor, then proper procedure

would be for the plaintiff to submit to the Court and opposing coun-

sel some type of brief or explanation of any reason you should re-

consider,

THE COURT: Well, if defendants’ counsel represen

the University and its officials believe some issue has been

during the additional pretrial discovery, I think that should be

brought to the Court's attention by either counsel.

We're interested in determining whether there was any change

by reason of additional discovery.

Any further questions?

(No response.)

THE COURT: a Thank you, gentlemen.

MR. SALAZAR: Thank you very much, Your Honor,

36

APPENDIX D“

(Filed May 17, 1982, Clerk, State of Washington Court of Appeals)

COURT OF APPEALS OF THE STATE OF WASHINGTON

ALONZO MARQUEZ,

Appellant,

v. No, 9080-14

UNIVERSITY OF WASHINGTON: JOHN Division One

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, Filed May 17, 1982

ANDERSON, C. J.

)

)

)

)

)

)

)

FACTS OF CASE

A former law student, Alonzo Marquez, appeals the dismissal of

his suit against the University of Washington and certain of its offic-

ials, We affirm,

Marquez, of Mexican-American descent, was admitted to the

University of Washington Law School (hereinafter Law School) in

the fall of 1972 as a special admittee under its affirmative action pro-

co. During the school years, 1972-73 and 1973-74, the Law

hool did not have a formal tutorial assistance program for spec-

ially admitted students. Informal unstructured academic assistance,

however, was available to those students who requested it. The plain-

tiff did not take full advantage of the opportunities afforded him in

that regard.

The Law School requires all law students to maintain a grade

point average of 68 in order to continue, Marquez was one of 12

students who earned a grade point average less than the required 68

at the end of his first year, His average was 63.94.

All 12 of those students were individually evaluated according

to established standards, The faculty committee terminated Marquez

and three other er admitted first year students, The Dean of

the Law School, however, convinced the faculty to retain Marquez

and the other three on certain conditions, These four students were

required to repeat all classes in which they had not received a grade

of 68 or better, They were allowed to drop the lower grade for any

course which was repeated rather than being required to count it in

their overall average.

37

At the end of Marquez’ second year, his grade point average was

67.725, just below — n Since the estatlished

policy of the law school at the time was not to round grade averages

upward, Marquez was again terminated for low scholarship, At the

time of this second termination, Marquez was also taking summer

school courses at the Law School and the grades in those courses

were not included in his cumulative — The grades he obtained

in his zummer courses would have lowered, not improved, his grade

point average.

In November 1977, Marquez, through his attorney, filed a com-

laint * the University of Washington and others alleging

reach of contract, denial of his equal protection 7 * and viola-

tions of the state law st discrimination, RCW 49.60, By his suit,

Marquez sought readmission, $250,000 damages, attorneys’ fees and

costs. In the spring of 1978, the Superior Court granted the Univer-

sity’s motion for a summary judgment of dismissal, Marquez ap-

pealed, On April 30, 1979, this court reversed the trial court on pro-

cedual grounds, the basis being that at the time summary judgment

was entered Marquez had outstanding a motion to compel answers to

interrogatories, On remand, additional discovery was done and on

Jul er the ype Court —— a new order granting —

niversity’s motion for summary judgment. Marquez pro se a

from that order presents three eh issues. . '

ISSUES

ISSUE ONE. Did the trial court err in granting the University’s

motion for summary judgment on the breach of contract claims?

ISSUE TWO, Did the trial court err in granting the University’s

motion for summary judgment on the equal protection claim?

ISSUE THREE, Did the trial court err in granting the Univer-

2 motion for summary judgment on the anti- discrimination

claim?

DECISION

ISSUE ONE.

CONCLUSION, The trial court did not err in granting summary

judgment on the contract claims because the uncontroverted facts

establish that the University of Washington School of Law did not

breach its education contract with Marquez,

When uez applied and was admitted to law school, the pre

law handbook of the Association of American Law Schools provided,

in part, the following description of the Law School:

Special programs - - including recuitment, admission, and finan-

| 38

cial and academic aid - are available for students of minority

ethnic groups.

Marquez contends that the above language became of the con-

tract between himself and the Law School upon his matriculation

and that the Law School breached the “academic aid” term by not

providing him with a formal structurized tutorial assistance program.

It is now generally accepted that the relationship between a

student and a university is primarily contractual in nature. Maas v.

ron = age of Gonzaga Univ., 27 Wn. App. 397, 400, 618 P.2d 106

(1980). “ ‘Since a formal contract is rarely prepared, the general

nature and terms of the agreement are y implied, with specific

terms to be found in the university bulletin and other publications;

„ Peretti v. Montana, 464 F. Supp. 784, 786 (D. Mont. 1979),

rev'd on other grounds, 661 F.2d 756, 757 (9th Cir. 1981) quoting,

Note, Expulsion of College and Professional Students - - Rights and

Remedies, 38 Notre Dame L. J. 174, 183 (1962). For the p 5

of this case, we will assume that the singular reference to — ssn

aid contained in the prelaw handbook was definite enough to form a

part of Marquez’ contract with the Law School.

However, while

„lit is apparent that some elements of the law of contracts

are used and should be used in the analysis of the relationshi

between plaintiff and the university to provide some framewor

into which to put the problem... This does not mean that

‘contract law’ must be rigidly applied in all its aspects, nor is it

so applied even when the contract analogy is extensively adop-

ted. . . . The student university relationship is unique, and it

should not be and can not be stuffed into one doctrinal cate-

gory. ee 450

Lyons v. Salve A N College, 565 F. 2d 200, 202 (1st Cir. 1977),

cert. denied, 435 U.S. 971, 30 L. Ed. 2d 62, 98 S. Ct. 1611 (1978),

uoting with approval from Slaughter v. Brigham Young Univ., 514

2d 622, 626, (10th Cir.), cert. denied, 423 U.S. 898, 46 L. Ed. 2d

131, 96 S. Ct, 202 (1975). Thus, in light of the wide latitude and

discretion afforded by the courts to educational institutions in aca-

demic matters, Maas u. Corporation of Gonzaga Univ., supra at 402,

the University is entitled to some leeway in modifying its programs

from time to time so as to properly exercise its educational responsi-

bility, Mahavongsanon v. 529 F.2d 448, 450 (Sth Cir. 1976).

The concept of a binding, absolute, une able contract is particu-

larly anomalous in the context of post graduate level work. Mahav-

ongsanan v. Hall, supra,

In addition, the construction of a contract and the effect

of its terms present questions of law for the trial court which may be

39

properly resolved by sum judgment. Murray v. Western Pac.

Ins. Co., 2 Wn. App. 985, 992-93, 472 P.2d 611 (1970). Accord,

Giles v. Howard Univ., 428 F. Supp. 603, 605-06 (D. B. C. 1977).

Further, where, as here, the agreement is not an integrated one, the

standard is that of reasonable expectations - What meaning the par-

ty making the manifestation, the Law School, should reasonably ex-

pect the other party to give it. Lyons v. Salve Regina College, supra

at 202, quoting Giles v. Howard Univ., supra at 605. See J. Calamari

& J. Perillo, Contracts § 3-10, at 118-19 (ad ed. 1970).

Applying the foregoing to the case before us, it is evident that

the prelaw handbook did no more than announce that certain pro-

grams” including ‘academic aid” to certain prospective students are

available”. It did not tie the Law School to a specific program or

type of academic aid”. Nothing therein created a right in the appli-

cant to obtain a law degree absent his meeting and maintaining reas-

onable standards established by the Law School. The possibility of

academic failure is implicit in the nature of the educational contract

between a student and a university.“ Maas v. Corporation of Gon-

zaga Univ., supra at 401.

The uncontroverted affidavits and depositions in this case es-

tablish that while the Law School, at the time of Marquez’ matricu-

lation, did not have a structured or mandatory tutorial assistance

program, it did provide other types of academic aid opportunities un-

usual to law schools at that time. 1/ These included the availability

of faculty assistance outside the classroom to specially admitted

students upon request, small class sections for first year students, a

rigidly structured legal writing and research program os full

time faculty members and the possibility of taking lighter course

loads, Marquez did not take full. advantage of these opportunities

and, in fact, declined offers of out of class assistance from his legal

writing instructor,

Furthermore, Marquez was permitted to remain in school after

his first year, even ream he failed to meet the Law School’s grade

point requirements, and he was also allowed to expunge his first

year’s failing grades by repeating courses which he had failed.

1/ Prior to Marquez’ first year, the Law School did have a for-

mal tutoring program for specially admitted students only, Due to

student concern about stigmatization and a general dissatisfaction

with the student tutors, however, the program was eliminated and in-

formal voluntary assistance opportunities were substituted. This

change was a reasonable modification of the Law School's academic

assistance program made in a good faith exercise of its educational

responsibility. See Mahavongsanan v. Hall, 529 F.2d 448, 450,

(Sch Cir, 1976).

40

There being no issue of material fact with respect to the fore-

going, the trial court did not err when it granted a summary judg-

ment dismissing Marquez’ case since, on the face of it, the University

lived up to its contract with Marquez by providing him with academ-

ic assistance and the opportunity to obtain additional academic assis-

tance had he desired to take advantage of the opportunities extended.

Marquez also argues that the University breached its contract

with him by not rounding off his bee. point average upward and by

not including his summer school grades in his cumulative average

owed to his final termination. Our review of the entire record in a

ight most favorable to Marquez demonstrates, however, an absence

of any issue of material fact respecting the purported promises be-

tween Marquez and the Law School, The Law School did no more

than follow its established procedures and there is no evidence of a

separate agreement,

The summary judgment entered on the contract issues was

proper. See CR 56 (e); Morris v. McNicol, 83 Wn. 2d 491, 494-95,

519 P.2d 7 (1974).

ISSUE TWO.

CONCLUSION. Because the record does not establish or raise

an inference of arbi or capricious action on the part of the Uni-

versity, the trial court did not err in granting summary judgment on

the equal protection claim.

In his complaint, Marquez alleges that various actions of the law

school regarding his termination and the school’s medical leave of

absence policy violated his right to equal protection as guaranteed by

our state and federal constitutions.

Absent a suspect classification or infringement of a fundamental

interest, however, a classification which is rationally related to a le-

gitimate state interest is not violative of a person's right to equal pro-

tection. Reed v. Reed, 404 U.S. 71, 75-76, 30 L. Ed. 2d 225, 92 8

Ct. 251 (1971); DeFunis v. Odegaard, 82 Wn.2d 11, 31, 507 P.2d

1169 (1973), vacated as moot and remanded, 416 U.S. 312, 40 L.

Ed. 2d 164, 94 S. Ct. 1704, no action on remand, 84 Wn. 2d 617,

529 P.2d 438 (1974). Because uez’ equal protection claims

are not related to discrimination on the basis of a suspect classifi-

cation and the right to a university education is not a fundamental

interest, Rosenstock v. Board of Governors, 423 F. Supp. 1321,

1326 (M.D. N.C. 1976), the “rational basis test applies.

Further, absent arbitrary or capricious action on the part of the

Law School, a court will not interfere with the academic decisions of

a university. Maas v. Corporation of Gonzaga Univ., supra at 402-

403. See Connelly v. University of Vt., 244 F. Supp. 156, 159-60

41

(D. Vt. 1965).

in the case before us, all the decisions of the University regard-

ing Marquez were made pursuant to reasonable and established

school policies and any deviations therefrom were rationally related

to legitimate interests in the Law School. There was no sh of

an abuse of discretion or of any arbitrary or capricious action. Thus,

the trial court did not err in granting defendant’s motion for sum-

mary judgment as to the equal protection claim.

ISSUE THREE.

CONCLUSION. The trial court did not err by granting sum-

mary judgment on the discrimination claim because there is no evi-

dence whatsoever that the University discriminated against Marquez

or treated him unfairly.

Before a violation of this state’s law against discrimination can

be established, the en party must show “‘practices of discrim-

ination against any of its inhabitants. (Emphasis added.) RCW

49.60.010; see Ellingson v. Spokane Mortgage Co., 19 Wn. App. 48,

54-55, 573 P.2d 389 (1978). Here, there is no evidence that Mar-

quez was discriminated against by the University. The record estab-

lishes to the contrary 9 that Marquez was treated with great

solicitude by the University of Washington and its Law School and

was accorded every reasonable consideration in his quest for a *

education. Therefore, a summary judgment of dismissal on

claim, as on the others, was proper.

As the experienced Superior Court judge who ruled on the

motions terminating this case in the trial court for the final time

summarized it in his oral decision:

Based on the foregoing resume of special academic con-

siderations granted plaintiff” and others similarly situated, one

must reach the inescapable conclusion the plaintiff was exten-

ded every reasonable consideration, every reasonable assistance,

and every reasonable opportunity to succeed in law school.

No case has been cited, and the Court is unaware of any

rule of law that would impose a mandate on a public or private

educational institution, i. e., University of Washington Law

School, under the circumstances disclosed by this record to

assure or guarantee the making of a lawyer.”

The function of such institutions, and the implementation

of any affirmative action program, is to afford every reasonable

opportunity to such qualified student to succeed, But the *

contribution must, of necessity, be borne by the individual him-

self and not by the State.

Motivation; devotion to the law; perseverance; and ad-

42

diction to serious studies, are the basic ingredients of anyone

seeking such professional career. ö

Affirmed.

Anderson, C. J.

43

APPENDIX “E”

(Filed June 16, 1982, Court of Appeals of the State of Washington)

IN THE COURT OF APPEALS OF

THE STATE OF WASHINGTON

ALONZO MARQUEZ,

Appellant,

No, 9080-1-1

v.

ORDER DEN x-

UNIVERSITY OF WASHINGTON; JOHN ING MOTION

HOGNESS, President of the UNIVERSITY FOR RECON-

of Washington; RICHARD RODDIS, Dean SIDERATION

of the School of Law; and BOARD OF

REGENTS OF THE UNIVERSITY OF

WASHINGTON,

a ee — —— — — — et et et eet —

Respondents,

The Appellant, Alonzo Marquez, having filed his motion for

reconsideration herein and the court having determined that such

motion should be denied, Now, therefore, it i hereby

ORDERED that the motion for reconsideration filed herein

be, and the same hereby is, denied.

Dated this 16th day of June, 1982.

Chief Judge

44

APPENDIX “F”

THE SUPREME COURT

STATE OF WASHINGTON

Dated October 8, 1982

Mr. Alonzo Marquez

Route 1 Box 18

Outlook, Washington 98938

Mr. Stephen Todd

Attorney at Law .

1701 Bank of California Center

Seattle, Washington 98164

Mr. James Wilson

Ms. Elsa Cole

Asst. Attorney Generals

112 Administration Bldg.

Seattle, Washington 98195

Counsel:

Re; Supreme Court No. 48884-3- Alonzo Marquex v. University of

Washington - Court of Appeals No. 9080-14

Following consideration of the above entitled Petition for Re-

view on October 8, 1982, the eee notation order was entered

on page 241, Volume 2, of the Petition for Review Docket:

“DENIED”

/s/ William H. Williams

Acting Chief Justice

Very truly yours,

Reginald N. Shriver

Acting Clerk

45