DeFunis v. Odegaard Brief Amicus Curiae of the Anti-Defamation League

    IN THE

Supreme Court of tfje Mmteb H>tate£
October Term , 1973.

No. 7 3 -2 3 5

MARCO DE FUNIS, et ah, 

vs.
Petitioners,

CHARLES ODEGAARD, et al,
Respondents.

BRIEF OF THE ANTI-DEFAMATION LEAGUE OF 
B N AI B’RITH AMICUS CURIAE.

Alexander M. Bickel,
261 St. Ronan Street,
New Haven, Connecticut 06511,

Philip B. Kurland,
Two First National Plaza, 
Chicago, Illinois 60670,

Attorneys for Amicus Curiae.

Larry M. Lavinsky,
300 Park Avenue,
New York, New York 10022,

Arnold Forster,
315 Lexington Avenue,
New York, New York 10016, 

Of Counsel.

G unthorp-W arren P rin ting  Com pany, C hicago •  346-1717



INDEX.

PAGE

Opinions B elow ....................................................................  1
Jurisdiction ...........................................................................  1
Consent of the P arties .......................................................... 1
Questions Presented..............................................................  2
Constitutional Provision....................................    2
Interest of the Amicus C uriae...............................................  2
Statement ...............................................................................  3
Summary of Argument.......................................................... 16
Argument .............................................................................  17

The Racial Quota Utilized by the Law School of the 
University of the State of Washington Is a Violation 
of the Equal Protection Clause of the Fourteenth 
Amendment ..............................................................  17
I. Any Racial Classification by a State Is Presump­

tively Invalid Under the Equal Protection Clause 
of the Fourteenth Amendment.............................. 19

II. A Racial Classification by a State Is Invalid Under
the Equal Protection Clause Except as a Specific 
Remedy for Specific Unconstitutional or Illegal 
Racial Discrimination ......................................... 21

III. The “Benign” Intent of the Framers of the Racial
Quota Here Cannot Save It. The Validity of 
State Racial Discrimination Is Measured by Effect 
Not M otive............................................................ 23

IV. There Are No “Compelling State Interests” to
Justify the Racial Quotas Used by the Respond­
ents to Determine Admission to the State’s Law 
School ..................................................................  25

Conclusion .............................................................................  31
Appendix ...................................................      A1



Table of Cases and Other Authorities. 

Cases.

Bolling v. Sharpe, 347 U. S. 497 (1954)..........................
Brown v. Board of Education, 347 U. S. 483 (1 9 5 4 ) ... .2, 
Burton v. Wilmington Parking Authority, 365 U. S. 715

(1961) .............................................................................
Carrington v. Rash, 380 U. S. 89 (1965).......................
Carter v. Gallagher, 452 F. 2d 315 (8th Cir. 1971),

cert, denied, 416 U. S. 950 (1972)..............................14,
Colorado Anti-Discrimination Commission v. Continental

Airlines, Inc., 372 U. S. 714 (1963)..............................
Contractors Association of Eastern Pennsylvania v. Sec­

retary of Labor, 442 F. 2d 159 (3d Cir. 1971), cert.
denied, 404 U. S. 584 (1 9 7 1 ) ........................................

Dunn v. Blumstein, 405 U. S. 330 (1972)..................... 28,
Graham v. Richardson, 403 U. S. 365 (1971).................
Griggs v. Duke Power Co., 401 U. S. 424 (1971) . . .  11, 21, 
Harper v. State Board of Elections, 383 U. S. 663 (1966) 
Hirabayashi v. United States, 320 U. S. 81 (1943) . .21, 26,
Hunter v. Erickson, 393 U. S. 385 (1969).......................
James v. Valtierra, 402 U. S. 137 (1971).......................
Jones v. Alfred H. Mayer Co., 392 U. S. 409 ( 1968) . . . .
Korematsu v. United States, 323 U. S'. 214 (1944)...........

.............................................................................21, 25, 26,

Kraemer v. Union Free School District, 395 U. S. 621
(1969) .............................................................................

Loving v. Virginia, 388 U. S. 1 (1967)...............19-20, 23,
McLaughlin v. Florida, 379 U. S. 184 (1964).................
Oyama v. California, 332 U. S. 633 (1948).....................

28
18

23
28

22

2

14
29
28
23
28
28
28
26

2

28

28
,28
28
28



Ill

Porcelli v. Titus, 431 F. 2d 1254 (3d Cir. 1970), cert, 
denied, 402 U. S. 944 (3 971) ....................................  14,22

Reitman v. Mulkey, 387 U. S. 369 (1967).......................  26
San Antonio Independent School District v. Rodriguez,

441 U. S. 1 (1973) .......................................................  4
Shelley v. Kramer, 334 U. S. 1 (1948)..............................2, 20
Slaughterhouse Cases, 16 Wall. 36 (3 870)........................ 28
Strauder v. West Virginia, 100 U. S. 303 (1880)...............  28
Sullivan v. Little Hunting Park, Inc., 396 U. S. 229 (1969) 2-3 
Swann v. C'harlotte-Mecklenburg Bd. of Education, 402

U. S. 1 (1971) .........................................................14,21,22
Sweatt v. Painter, 339 U. S. 629 (1950)............................2, 19
Ex Parte Virginia, 100 U. S. 339 (1880).......................... 28
Williams v. Rhodes, 393 U. S. 23 (1968).......................  28
Winston-Salem/Forsyth County Board of Education v.

Scott, 404 U. S. 1221 (1971).......................................  22
Wright v. Council of City of Emporia, 407 U. S. 451, 462 

0 9 7 2 ) ...............................................................................  23

Constitutional and Statutory Provisions. 

Fourteenth Amendment to the Constitution of the United
States .................................................................................  2

28 U. S. C. § 1257(3).......................................................... 1



IV

Other Authorities.

S. Baron, The Russian Jew Under Tsars and Soviets 57
(1964) ...............................................................................  3

Graglia, Special Admission of the “Culturally Deprived” 
to Law School, 119 U. Pa. L. Rev. 351, 353-59 (1970) 24

Higher Education for American Democracy, a Report of 
the President’s Commission on Higher Education 35
(1947)   3

S. Kennedy, Jim Crow Guide to the U. S. A. 92 (1959;
1973)   3

G. Kisch, The Jews in Medieval Germany: A Study of
Their Legal and Social Status (2d ed. 1970).................  3

L. Kochan, ed., The Jews in Soviet Russia Since 1971
1-2, 17, 90, 91, 92, 94, 146 (2d ed. 1972).................  3

Kramer, What Lowell Said, The American Hebrew 394
(1923)   3

McPherson, The Black Law Student: A Problem of Fideli­
ties, Atlantic 88 (April 1970) ....................................  24

G. Myers, Bigotry (2d ed. 1960)......................................... 23
S. Segal, The New Poland and the Jews 197 (1938)........  3
Sowell, Black Education, Myths and Tragedies 292

(1 9 7 2 ) ...............................................................................  25
Steinberg, How Jewish Quotas Began, 52 Commentary 72 

(1971)   3
United States Bureau of the Census, Census of Population: 

1970, General Population Characteristics, Washington, 
Final Report PC(1)-B49, Table 18; Idaho Final Re­
port PC(1)-B14, Table 18; Montana, Final Report 
PC(1)-B29, Table 18 ..................................................... 11



IN THE

Supreme Court of tf)e Umteb States?
October T erm , 1973.

No. 73-235.

MARCO DE FUNIS, et al,

vs.
Petitioners,

CHARLES ODEGAARD, et al.,
Respondents.

BRIEF OF THE ANTI-DEFAMATION LEAGUE OF 
B’NAI B’RITH AMICUS CURIAE.

OPINIONS BELOW.
The opinions of the Supreme Court of Washington are re­

ported at 82 Wn. 2d 11, 507 P. 2d 1169, and are reprinted as 
Appendix A to the petitioner’s Jurisdictional Statement or in the 
Alternative Petition for Certiorari.

JURISDICTION.
The jurisdiction of this Court is invoked under 28 U. S. C. 
1257(3). Certiorari was granted on 19 November 1973.

CONSENT OF THE PARTIES.
Both petitioners and respondents have graciously consented to 

the delayed filing of this brief, and their letters of consent are 
on file with the Clerk of this Court.



QUESTIONS PRESENTED.

The questions presented in this case are two:
1. May a State establish racial quotas for the admission of 

students to its law school?
2. May a State, which cannot constitutionally discriminate 

on racial grounds against black applicants to its law school, con­
stitutionally discriminate on racial grounds against white ap­
plicants to its law school?

CONSTITUTIONAL PROVISION.
The Fourteenth Amendment to the Constitution of the United 

States provides:
. . nor shall any State deprive any person of life, liberty, 

or property, without due process of law; nor deny to any 
person within its jurisdiction the equal protection of the 
laws.”

INTEREST OF THE AMICUS CURIAE.
B’nai B’rith, founded in 1843, is the oldest civic service 

organization of American Jews. The Anti-Defamation League 
was organized in 1913 as a section of B’nai B’rith to advance 
good will and mutual understanding among Americans of all 
creeds and races, and to combat racial and religious prejudice 
in the United States.

Among its many other activities directed to these ends, the 
Anti-Defamation League has in the past filed amicus briefs in 
this Court urging the unconstitutionality or illegality of racially 
discriminatory laws and practices in such cases as, e.g., Shelley 
v. Kraemer, 334 U. S. 1 (1948); Sweatt v. Painter, 339 U. S. 
629 (1950); Brown v. Board of Education, 347 U. S. 483 
(1954); Colorado Anti-Discrimination Commission v. Con­
tinental Airlines, Inc., 372 U. S. 714 (1963); Jones v. Alfred 
H. Mayer Co., 392 U. S. 409 (1968); Sullivan v. Little Hunt­



3

ing Park, Inc., 396 U. S. 229 (1969); San Antonio Inde­
pendent School District v. Rodriguez, 441 U. S. 1 (1973).

The “numerus clausus,” the racial quota that is involved in 
this case, is of particular concern to the Jewish minority in this 
country because of the long history of discrimination against 
Jews by the use of quotas, both in Europe and in the United 
States. See, e.g., Higher Education for American D e­
mocracy, A R eport of the President’s Commission on 
Higher Education 35 (1947); S. Kennedy, Jim Crow Guide 
to the U. S. A. 92 (1959; 1973); Steinberg, How Jewish 
Quotas Began, 52 Commentary 72 (1971). See also G. 
Kisch, The Jews in Medieval Germany: A Study of Their 
Legal and Social Status (2d ed. 1970); J. Marcus, The 
R ise ane Destiny of the German Jew 11 (1934); S. Segal, 
The New Poland and the Jews 197 (1938); L. Kochan, 
ed., The Jews in Soviet Russia since 1971 1-2, 17, 90, 91, 92, 
94, 146 (2d ed. 1972); S. Baron, The Russian J ew under 
Tsars and Soviets 57 (1964). Because of the importance to 
all groups within the American society of the questions presented 
by this case, an argument on behalf of any one group would be 
inappropriate. It may, nevertheless, be noted that after only 30 
or 40 years of open admissions, the universities which, for cen­
turies, set the style in excluding or restricting Jewish students, 
may, again be able to do so, again in the name of enlightenment, 
if the Washington decision is not reversed. See, e.g., Steinberg, 
How Jewish Quotas Began, 52 Commentary 72 (1971); 
Kramer, What Lowell Said, The American Hebrew 394 
(1923).

STATEMENT.
Petitioner Marco DeFunis, applied for and was denied ad­

mission to the 1974 class commencing September, 1971 of the 
University of Washington Law School, the only law school



4

operated by the State of Washington. (Rev. Code of Washington, 
Ch. 28B.20) Thereupon DeFunis, his wife, and his parents 
brought suit in the Superior Court of the State of Washington, 
seeking an order that DeFunis be admitted on the ground that 
the procedures by which he was excluded were racially dis­
criminatory. Following trial, the Superior Court ordered the 
admission of DeFunis. Pursuant to the court’s order, he was 
enrolled as of September 22, 1971. The University appealed. 
On March 8, 1973, the Supreme Court of Washington reversed 
the order to admit DeFunis. On June 5, 1973, Mr. Justice 
Douglas stayed execution and enforcement of the judgment of 
the Washington Supreme Court pending disposition of an appeal 
or petition for a writ of certiorari in this Court.

Enrollment in the University of Washington Law School is 
limited overall to 445 students. The size of the entering class 
is dependent on the residual number after second and third- 
year students who continue in good standing are counted. In 
1971, the number of places open in the first-year class was a 
maximum of 150. There were 1,601 applications. (St. 3-3-35.)*

The task of filling the places available in the first-year class 
was assigned to an admissions committee consisting of five facul­
ty members and two students. (St. 330.) A “Guide for Appli­
cants” issued by the law school described the admissions process 
that had been applied the previous year and announced that the 
law school anticipated it would “be applied in determining 
membership in the [entering] class of 1971.” The Guide stated:

In assessing applications, we began by trying to identify 
applicants who had the potential for outstanding perform­
ance in law school. We attempted to select applicants 
for admission from that group on the basis of their ability to 
to make significant contributions to law school classes and 
to the community at large.

We gauged the potential for outstanding performance in 
law school not only from the existence of high test scores

* “St.” refers to the Statement of Facts, which in this record 
contains the transcript of testimony.



5

and grade point averages, but also from careful analysis 
of recommendations, the quality of work in difficult analyti­
cal seminars, courses, and writing programs, the academic 
standards of the school attended by the applicant, the ap­
plicant’s graduate work (if any), and the nature of the 
applicant’s employment (if any), since graduation.

An applicant’s ability to make significant contributions 
to law school classes and the community at large was as­
sessed from such factors as his extracurricular and com­
munity activities, employment, and general background.

We gave no preference to, but did not discriminate 
against, either Washington residents or women in making 
our determinations. An applicant’s racial or ethnic back­
ground was considered as one factor in our general attempt 
to convert formal credentials into realistic predictions. 
(Defendants’ Exh. 45.)

While two general, non-racial factors in the admissions 
process were thus announced: (1) “potential for outstanding 
performance,” and (2) “ability to make significant contribu­
tions to law school classes and to the community at large,” 
testimony by the chairman of the admissions committee made 
it clear that the second factor was definitely subordinate, if 
indeed it had any substantial weight at all. The committee, its 
chairman explained, “proceeded in a fashion of trying to identify 
those individuals that it thought had the highest probability 
of success in law school with a possible secondary qualifica­
tion of selecting from among those individuals on the basis 
of people who might make outstanding contributions to the 
law school classes under the law school community.” (St. 360.)

In practice, the admissions process worked as follows. The 
committee had before it transcripts from all schools and col­
leges previously attended by the applicant, his score on the 
law school admissions test, which is nationally administered, 
letters of recommendation, and a statement by the applicant 
himself. (St. 338; 22.) By means of a formula combining the 
applicant’s score in the law school admissions test and his 
junior and senior year college grade averages, a law school



6

predicted first-year average was established. (St. 360; 56; 181; 
357.) All applicants whose predicted first-year average was 78 
or above (the highest was 81), and a very high percentage 
(93 out of 105) of applicants with a predicted first year average 
between 77 and 78 were admitted. (Defendants’ Answers to 
Interrogatories, Tr. 44.*)

Applications showing a score above 77 were thus treated 
almost automatically, on the basis simply of the numerical 
score. The same automatic treatment was afforded applica­
tions showing a score of 74.5 or below, but only if they were not 
applications of black Americans, Chicano Americans, native 
American Indians, or Philippine Americans. If not coming from 
these four groups, applications with a score of 74.5 or below 
were examined by the chairman of the admissions committee 
alone. Except in the case of applications of returning military 
veterans who had been admitted in earlier years, and with the 
exception also, as he testified, of “maybe one or two cases 
outside of the military area,” the chairman of the admissions 
committee rejected all these low-score applications out of hand. 
Thus, as of August 1971, when the admissions process was 
virtually complete and some 275 acceptances had been sent out 
(allowing for non-acceptance among those invited), only nine 
applicants who were not Chicano, Indian, or Philippine and 
who had scores of 74.5 or below had been admitted, and these 
were overwhelmingly cases of returning veterans. (St. 340-41; 
Defendants’ Answers to Interrogatories, Schedule A, Tr. 48-52.)

There was thus left a residual category of applications, 
which was divided into two groups. The first was the group of 
applications showing predicted first-year averages below 77 
(with a few 77’s included during the latter part of the process) 
(St. 340), but above 74.5, where the applicant was not black 
American, Chicano American, native American Indian, or 
Philippine American. This was the group that included DuFunis, 
whose score was 76.23. The second group consisted of ap­

* “Tr.” refers to the Transcript of Record on Appeal to the 
Supreme Court of Washington.



7

plications of black Americans, Chicano Americans, native 
American Indians, or Philippine Americans regardless of the 
predicted first-year average so long as it was below 77, which 
included all but possibly one such application.* If it qualified 
on the basis of race, it did not matter that an application 
showed a score of 74.5 or below. It was put in this second 
group, rather than being consigned to the chairman of the 
admissions committee for summary disposition. Actually, 30 
minority-group applications showing a score of 74.5 or below 
were eventually accepted. (St. 340-42, 351; Defendants’ Exh. 
44, p. 2; Defendants’ Answers to Interrogatories, Schedule A, 
Tr. 48-52.)

Files in the first of these two residual groups—applicants 
who were not black, Chicano, Indian, or Philippine but whose 
averages fell between 77 and 74.5—were assigned to committee 
members at random for examination and report to the full com­
mittee, where they were acted upon. The second group, con­
sisting of all but possibly one of the black American, Chicano 
American, native American Indian, and Philippine American 
applicants, were treated distinctly and separately. Having ex­
plained that two groups were left over after the virtually auto­
matic admission of the high-score applicants and the virtually 
automatic exclusion of non-minority applicants with a score 
of 74.5 and below, and that these two groups formed a residual 
category, the chairman of the admissions committee testified: 
“The residual category, and let me segregate—segregate is the 
wrong word, but minorities were put aside for separate con­

* Defendants’ Exh. 44, p. 2, shows that one black applicant (and 
no Chicano, Indian, or Philippine applicant) had a score higher 
than DeFunis’s 76.23. But we are not told whether this black 
applicant’s score was as high as 77 or above. Comparing Schedule 
A to Defendants’ Answer to Interrogatories (Tr. 48-53), with 
Exhibit 44 makes plain that the listing of minority group members 
in Schedule A includes Asians other than Philippine Americans. 
Such other Asians received no preferential treatment and did not 
form part of the second group discussed in the text. The score of 
the black applicant in question cannot be determined from Sched­
ule A.



8

sideration.” (St. 344.) Files of black applicants were sent to 
a sub-committee consisting of a black law student and a faculty 
member who had worked during the previous summer with a 
special federally-funded program for training disadvantaged 
college graduates interested in a career in law. (St. 359.) Files of 
Chicano Americans, native American Indians, and Philippine 
Americans were sent to an associate dean for review. The sub- 
committe for black applicants and the associate dean who re­
viewed other minority files reported back to the full admissions 
committee with recommendations for acceptance and rejection. 
(St. 352, 121-26.)

Files in this separately treated group of black Americans, 
Chicano Americans, native American Indians, and Philippine 
Americans were compared only with each other and not with 
the other applications passed upon by the committee or by its 
chairman individually. “Our notion in separating that category,” 
the chairman of the admissions committee testified, “was an 
attempt to try to compare, to the extent we could, applications 
that were essentially comparable, that is, we wish to treat and 
consider the minority applications in the context of examining 
minority applications rather than sprinkled throughout a group 
of simply the entire group of applications to the law school.” 
(St. 351; St. 399.) The effort was to find “within the minority 
category, those persons who we thought had the highest prob­
ability of succeeding on law school.” (St. 353.) The reason for 
including a black student in the sub-committee to which files 
of black applicants were assigned was the admissions commit­
tee’s “assumption . . . that a black person can better interpret 
the experiences and background and educational opportunities 
that a black has been exposed to than a white person can.” (St. 
402.)

By the method described, 37 black American, Chicano 
American, native American Indian and Philippine American 
applicants were offered admission to the law school.* Of the

* The trial court found that 44 Afro-American, Asian-American, 
Chicano-American, and American Indian applicants were admitted



9

37, one had a predicted first-year average higher than peti­
tioner De Funis’s 76.23. Thirty-six had predicted first-year 
averages below De Funis’s. Thirty of them, as already noted, 
had averages below 74.5, and but for their racial classification 
would have been summarily rejected. There were other ap­
plicants also who were admitted with first-year predicted aver­
ages below that of petitioner De Funis, 23 of them as return­
ing veterans who had previously been admitted, and 25 for 
other reasons that commended themselves to the discretion of 
the admissions committee. The lowest score for a non-minority 
group applicant who was admitted was 72.72. Twenty-four 
minority applicants were admitted with scores below that. (De­
fendants’ Exh. 44; Defendants’ Answers to Interrogatories, 
Schedule A, Tr. 48-52.)

The predicted first-year average was not the sole admissions 
criterion employed by the law school, but the record is clear 
that taking all criteria into account, in the law school’s own 
judgment, its minority-preference program resulted in the ad­
mission, in the aggregate, of students acknowledged to be less 
qualified than others who were not members of the designated 
minority groups and who were, therefore, rejected. The dean 
of the law school testified that “we do not want to go to the 
point where we are taking people who are unqualified in an 
absolute sense, and that is that they have no reasonable proba­
ble likelihood of having a chance of succeeding in the study of 
law with such academic supportive assistance that we can give 
them.” (St. 420.) But he testified candidly that “I would be 
misleading you, I think, if I suggested” that minority students 
with low credentials who are admitted are “necessarily as likely 
to succeed in the law school curriculum as certain of the ma­
as “minority” students, and we referred to this finding at p. 6 of 
our Brief as Amicus Curiae in Support of Jurisdictional Statement or 
in the Alternative Petition for Certiorari. The figure used by the 
trial court includes Asian Americans other than Philippine Ameri­
cans who were in fact subjected to no special or separate admis­
sions process but were treated in ordinary fashion in common with 
non-minority applicants. (St. 352; Defendants’ Exhibit 44.)



10

jority students who are not admitted.” (St. 418.) And defining 
the term “qualified” as indicating “the likelihood or proba­
bility [that] the student has the potential for successful study 
of law according to our curriculum,” the dean added: “On that 
basis, we do take, in my opinion, some minority students who 
at least, viewed as a group, have a less such likelihood than 
the majority student group taken as a whole.” (St. 423.) There 
followed this colloquy:

Q. Of these who have made application to go to the 
law school, I am saying you are not taking the best 
qualified?

A. In total?
Q. In total.
A. In using this definition, yes. (St. 423-24.)

The chairman of the admissions committee testified that 
there was no fixed quota determining the number of minority 
students to be admitted by the special, separate process adopted 
by the law school. (St. 353.) But there was, if not a precise 
number, then a zone or an order of magnitude. As indicated 
above, the policy was not to take applicants who were unquali­
fied in the absolute sense that they had no reasonable chance 
of succeeding, even with supportive assistance. It was in that 
sense, in the sense of resisting the temptation to “say we are 
going to take X number of black students no matter what, 
that the dean testified: “We do not have a quota. . . . But 
at this point also he added: “We want a reasonable representa­
tion. We will go down to reach it if we can,” without “taking 
people who are unqualified in an absolute sense. . . . (St. 
420.)

The stated rationale for the minority-preference policy was 
that the minority racial and ethnic groups whom the law school 
now sought to provide with a “reasonable representation were 
those which had been “historically suppressed and excluded 
from participation in what might be thought of I suppose, the 
main stream of our society, and certainly in participation in 
the legal arena.” (St. 416.) But there is no evidence in this



11

record, or in any materials outside the record we have been 
able to find that might be suitable for judicial notice, of dis­
crimination against the four groups in question by the Univer­
sity of Washington. The President of the University, pledging 
in a speech to students that the University would make “special 
provision for disadvantaged black Americans,” gave as the 
reasons for the policy the existence of slavery in the United 
States until the Civil War and “the history after slavery of a 
hundred years of separate and unequal treatment,” which he 
said would have to be “matched by at least some years of sepa­
rate and unequal treatment the other way if the situation is 
to be remedied.” (Defendants’ Exh. 13.) There is thus no indi­
cation of consciousness on the part of officials of the University 
of separate and unequal or otherwise discriminatory treatment 
of the groups in question at the University of Washington or 
in the State of Washington. The record shows only that for 
the year 1969-70, the University of Washington Law School 
reported an enrollment of eight black students out of a total 
of 356. (Defendants’ Exh. 7.) That comes to approximately 
2.2%, and compares favorably with a percentage of blacks 
in the population of the state of Washington, which is 2.1, 
and in the populations of the neighboring states of Oregon, 
Idaho, and Montana. See United States Bureau of the Census, 
Census of Population: 1970, General Population Characteristics, 
Washington, Final Report PC (1)-B49, Table 18; Idaho Final 
Report PC (1)-B14, Table 18; Montana, Final Report PC 
(1)-B29, Table 18.

Nor is there any showing in this record that the criteria 
used for admission, and particularly the first-year average, 
are not probative of qualification and therefore operate to 
discriminate against certain groups on the basis of race or 
ethnic origin. Cf. Griggs V. Duke Power Co., 401 U. S. 424 
(1971). On the contrary, as noted earlier, it was conceded that 
the result of diluting these criteria was the admission of rela­
tively less qualified applicants. There is testimony in the record 
—opinion evidence—that groups that have been handicapped



12

over a long period of time “by virtue of economic and other 
circumstances” and that have not had “the educational con­
dition and economic advantages for education [of] members 
of other groups” are in a different position from those other 
groups because: (1) they “may not [have been] exposed to the 
same kind of emphasis on certain skill developments and so 
on,” and (2) “our usual methods for evaluating applicants are 
not particularly accurate” as to them. Some of the indicators 
used, said the dean of the law school, “have a margin of error 
even as to students from the major culture, and we know that as 
to students from these minority cultures, they may be even 
less reliable.” (St. 416-17; see also St. 73-74.)

This assumption, it is clear, underlay the minority-preference 
policy. But it is equally clear on this record that this assumption 
amounted to absolutely nothing more than the judgment, 
acknowledged by the dean of the law school as noted above, 
that applicants admitted under the special minority-preference 
program were in the aggregate less qualified than other ap­
plicants admitted in the regular course, and than some ap­
plicants who were rejected. The law school neither abandoned 
the criteria by which it judged qualifications, however imper­
fect, nor so far as this record shows evolved and applied any 
special criteria, specially suitable to the groups in question 
and capable of assessing their qualifications as rigorously as 
those of other applicants were assessed. The assumption that 
the criteria normally used were less than usually accurate with 
respect to the groups in questions turns out on this record 
to be nothing more than an assumption that owing to various 
conditions of deprivation applicants admitted under the minority- 
preference policy were less qualified than other applicants.

Moreover, there is no pretense in this record that the as­
sumption of cultural and economic disadvantage as applied to 
any particular individual applicant rested on anything but his 
race, or that the contrary assumption, namely, that an applicant 
had had the normal cultural and economic advantages, in turn



13

rested on anything but the applicant’s race. Nothing in this 
record indicates that membership in one of the four racial 
groups that received preferential treatment correlates with cul­
tural and economic deprivation, or that any effort was made 
to find such a correlation. And the evidence is clear that no 
effort was made to examine the mass of applications for in­
dications of cultural or economic deprivation, whatever the race 
of the applicant.

The dean of the law school referred to the term, “cultural 
disadvantage,” as a sort of “cloak of language” (St. 417.), and 
when asked to define the difference between a minority group 
and a culturally disadvantaged person or group, he replied that 
“the semantics of this whole thing are something of a problem.” 
(St. 424-25.) There is in this record a fully candid recognition 
that the law school admissions policy singled out for separate 
treatment applications of certain persons solely on the basis of 
race, and judged them more indulgently than other applica­
tions. On this record, therefore, the assumption of economic 
and cultural disadvantage, as a rationale for the minority- 
preference policy merges into the rationale of historic conditions 
of oppression and discrimination.

An alternate and broader possible rationale is explicitly dis­
avowed in this record. The law school, the chairman of the 
admissions committee testified, did not pursue a general policy 
of trying to achieve a balanced class. “About the only thing, 
I suppose,” he said, “that can be said in this direction is, of 
course, the policy with respect to the representation within the 
law school community of minority students, if that, in some 
sense, can be considered an issue of class balance; negatively, I 
suppose, in negating the general overtones of class balance, the 
committee did not proceed to, with respect to any stated policy, 
certainly with the view of trying to procure certain numbers of 
individuals from various parts of the United States, from various 
employment skills, from various undergraduate majors, or any 
of the other numerous possible means that one could have for 
saying a class has balance.” (St. 360.)



14

On this record, the trial court ordered DeFunis’s admission 
on the ground that he had been excluded only by reason of his 
race.

The Supreme Court of Washington reversed the judgment of 
the trial court. The Supreme Court held that plaintiff had stand­
ing to raise the issues presented, and that the case was not 
moot. 507 P. 2d at 1177, n. 6. Coming to the merits, the 
court held that the law school’s admissions policy did 
not constitute invidious and stigmatizing discrimination 
any more than did the color-conscious policies mandated, 
and in a dictum permitted, by this Court in Swann v. Charlotte- 
Mecklenburg Bd. of Education, 402 U. S. 1, 16 (1971), or 
by certain decisions of lower federal courts such as Carter v. 
Gallagher, 452 F. 2d 315 (8th Cir. 1971), cert, denied, 416 
U. S. 950 (1972); Porcelli v. Titus, 431 F. 2d 1254 (3d Cir. 
1970), cert, denied, 402 U. S. 944 (1971); Contractors Asso­
ciation of Eastern Pennsylvania v. Secretary of Labor, 442 F. 
2d 159 (3d Cir. 1971)), cert, denied, 404 U. S. 584 (1971). 
Nevertheless, the Washington Supreme Court held, a compelling 
state interest must be shown in order to justify classifications 
based on race. It found such compelling state interests in: (1) 
The elimination of “racial imbalance within public legal educa­
tion,” 507 P. 2d at 1182, having regard to the fact that racial 
minorities are as fully taxed as anyone else for the support of 
public education, including public legal education; (2) The 
production of “a racially balanced student body at the law 
school,” 507 P. 2d at 1184, which may be considered necessary 
by educational authorities in order to train lawyers fully com­
petent to practice in the American multi-racial society; 
(3) The alleviation of a nation-wide “shortage of minority 
attorneys.” 507 P. 2d at 1184.

It had been suggested, the court said, that these compelling 
state purposes could be served by improving elementary and 
secondary education of minority students so that they could



15

secure equal representation by having their applications to 
law school considered competitively, with no need for prefer­
ential consideration. Such a program, the court went on, would 
not work effectively in the foreseeable future. Consequently 
there were no less restrictive means available that would serve 
the state’s compelling interest as effectively as a preferential 
minority admissions policy.

The court noted that underlying the law school’s admissions 
policy was the assumption that certain racial groups had been 
historically suppressed and disadvantaged. But the court did 
not appear to view this assumption, which it shared, as in itself 
constituting a compelling state interest. The court also set 
aside as not relevant for purposes of decision of the case 
questions whether de jure or de facto discrimination had existed 
at the University of Washington.

The court held further that there was no denial of equal 
protection in that feature of the law school’s policy which 
singled out only certain racial groups, since in light of the 
purpose of the policy the racial classification did not need to 
include all racial minority groups. Finally the court held that 
the law school’s admissions procedures and their application 
did not constitute arbitrary and capricious administrative action. 
Predetermined standards and procedures were used, but a 
numerical criterion was not the only one that was employed. 
The numerical criterion was departed from for reasons having 
to do with race, but in other cases for other reasons as well, 
including the likelihood that an applicant would make a con­
tribution to the law school and to the community at large 
following graduation.

Justice Wright, while joining the majority opinion, filed a 
brief concurrence emphasizing the point that a “law school 
admissions program should not and need not be based upon 
purely mathematical factors.” 507 P. 2d at 1188. Justice Finley 
and Stafford, who had also joined in the opinion of the court, 
joined in Justice Wright’s concurrence as well.



16

Chief Justice Hale, with whom Justice Hunter joined, filed 
a dissent. The law school’s admissions program violated the 
14th Amendment, Chief Justice Hale maintained, and could 
not be sanctioned by the holdings of any of the cases relied 
upon by the majority. “The circle of inequality cannot be 
broken,” said the Chief Justice, “by shifting the inequities from 
one man to his neighbor.” 507 P. 2d at 1189. The Chief 
Justice also regarded the administration of the law school’s 
admissions policy as being capricious and arbitrary even aside 
from its preferential feature based on race. Justice Hunter also 
added a brief dissenting opinion making the same point. 507 
P. 2d at 1200.

SUMMARY OF ARGUMENT.
Marco DeFunis was not permitted to compete for all of the 

places in the entering class of the University of Washington 
Law School. He was excluded solely because of his race from 
a significant number of places which were set aside and reserved 
for other races. Had DeFunis been black, Indian, Chicano or 
Philippine, such exclusion would have been unconstitutional. (In­
deed if DeFunis were any of these, most of those appearing 
against him here would be his champions instead of his ad­
versaries.) If the Constitution prohibits exclusion of blacks and 
other minorities on racial grounds, it cannot permit the exclusion 
of whites on racial grounds. For it must be the exclusion on 
racial grounds which offends the Constitution, and not the 
particular skin color of the person excluded.

For at least a generation the lesson of the great decisions of 
this Court and the lesson of contemporary history have been 
the same: discrimination on the basis of race is illegal, immoral, 
unconstitutional, inherently wrong and destructive of demo­
cratic society. Now this is to be unlearned and we are told that 
this is not a matter of fundamental principle but only a matter of 
whose ox is gored. Those for whom racial equality was de­
manded are now to be more equal than others. Having found



17

support in the Constitution for equality, they now claim support 
for inequality under the same Constitution. This is the classic 
hard case making very bad law.

A state-imposed racial quota is a per se violation of the 
Equal Protection Clause because it utilizes a factor for measure­
ment that is necessarily irrelevant to any constitutionally ac­
ceptable legislative purpose. A racial quota is a device for 
establishing a status, a caste, determining superiority or in­
feriority for a class measured by race without regard to in­
dividual merit.

There was a finding by both courts below that the State of 
Washington used racial criteria to exclude DeFunis from ad­
mission to the State’s law school. Exclusion from a state law 
school on the basis of race has long since been declared by this 
Court to be unconstitutional.

The only justification for use by a state of a racial classifica­
tion is its use to cure or alleviate specific, illegal racial discrim­
ination. There is no basis in this record even to suggest earlier 
illegal racial discrimination to be remedied by the racial quota 
adopted by the law school here.

Even if a racial quota were not, per se, a violation of the 
Equal Protection Clause, like any racial classification it was not 
available for use by a state in the absence of a “compelling 
state interest.” There is no “compelling state interest” shown 
on this record.

ARGUMENT.

The Racial Quota Utilized by the Law School of the University 
of the State of Washington Is a Violation of the Equal 
Protection Clause of the Fourteenth Amendment.

The facts have been set out in detail in the above Statement 
in order to reveal the true nature of the racial quota system 
for admissions adopted by the University of Washington Law 
School. The size of the class was fixed within approximately



18

five places. There was no suggestion that class size was ex­
pandable. (St. 115, 333-34.) Minority and majority applicants, 
as those terms were defined by the law school, went through 
separate, segregated admission procedures. (St. 351; 359; 399; 
402.) As the chairman of the admissions committee stated: 
“The residual category, and let me segregate—segregate is the 
wrong word, but minorities were put aside for separate con­
sideration.” (St. 344.) The most desirable students were chosen 
within each of the two groups. (St. 353; 420.) But the candi­
dates in one group were never considered in competition for the 
places allotted to the other group. (St. 353; 399.) The number 
of places allotted to minority applicants was changed from year 
to year by as inconspicuous a decision as possible. But a quota 
is no less a quota because it is not labelled as such or because 
it is subject to annual adjustment. (St. 416; 420.)

The use of the quota system—the segregation of two groups 
of applicants by race with admission for each group limited to its 
assigned numbers—makes it clear that this is not simply a case 
where race was used as one among many factors to determine 
admission. Instead, the law school used race as the criterion for 
imposing entirely separate admissions procedures. The class that 
entered the University of Washington Law School in 1971 was in 
fact two classes, distinguished in terms of racial attributes, one of 
“minority” students and the other of “majority” students, recog­
nized and chosen as such by the University. To the extent that 
a place was assigned to one group, it was inaccessible to a 
student from the other group. What was demonstrated by the 
law school here was not a form of integration of races but 
rather a form of segregation of the races.

Never, since this Court struck down what Mr. Roy Wilkins 
has called a “zero quota” (N. Y. Post, 3 March 1973) in 
Brown v. Board of Education, 347 U. S. 483 (1954), has a 
racial quota been approved by this Court. Both proponents and 
opponents of integration have recognized such quotas as per se



19

violations of the Equal Protection Clause that cannot be justi­
fied. That is why respondents try to assert that what is in­
volved here is not a “quota.” For a quota is not merely a 
racial classification. It is an attribution of status—of c a s te -  
fixed by race. A quota necessarily legislates not equality, but 
a governmental rule of racial differences without regard to an 
individual’s attributes or merits.

This is made clear by the fact that the “minority” applicants 
were not judged by different criteria for admission than were 
applied to the “majority” candidates. The predictive factors 
for measuring potential success in law school were the same for 
both groups. What was different was the law school’s ruling 
that “minority” candidates, because of their race, could not be 
expected to meet the higher standards established for “majority” 
students, without any regard to be given to individual capaci­
ties. Here lies the inherent evil of quotas that reverse the 
objective of Anglo-American democracies to move toward free­
dom by the rejection of status, measured by immutable factors 
like race, for assigning an individual his place in our society.

I. Any Racial Classification by a State Is Presumptively Invalid 
Under the Equal Protection Clause of the Fourteenth Amend­
ment.

A generation ago, this Court held that the exclusion of a 
black applicant from a state university law school solely be­
cause of his race was a violation of the Equal Protection Clause. 
Sweatt v. Painter, 339 U. S. 629 (1950). The Court is, never­
theless, asked here to hold that the exclusion of a non-black 
applicant from the law school of the State of Washington, solely 
because of his race, is a valid racial classification. We respect­
fully submit that the rule of equality mandated by this Court 
in Sweatt v. Painter compels the reversal of the judgment of 
the Supreme Court of Washington in this case.

It has long been established that a racial classification im­
posed by “official state sources,” Loving v. Virginia, 388 U. S.



20

1, 10 (1967), is presumed to be invalid under the Equal 
Protection Clause.

[W]e deal here with a classification based upon the race 
of the participants, which must be viewed in light of the 
historical fact that the central purpose of the Fourteenth 
Amendment was to eliminate racial discrimination ema­
nating from official sources in the States. This strong 
policy renders racial classification “constitutionally sus­
pect,” Bolling v. Sharpe, 347 U. S. 497, 499; and subject 
to the “most rigid scrutiny,” Korematsu v. United States, 
323 U. S. 214, 216; and “in most circumstances irrele­
vant” to any constitutionally acceptable legislative purpose. 
Hirabayashi V. United States, 320 U. S. 81, 100.
(McLaughlin v. Florida, 379 U. S. 184, 191, 192 
(1964).)

Racial discrimination is not justified because the burden of 
the state action falls on both races or all races so classified. 
“Equal protection of the laws is not achieved through indis­
criminate imposition of inequalities.” Shelley v. Kraemer, 334 
U. S. 1, 22 (1948).

There is no question here but that DeFuniss exclusion from 
the state law school was a result of a racial classification. The 
trial court ordered DeFunis’s admission for that reason. Nor 
did the Supreme Court of Washington disagree with the lower 
court that the law school had used a racial classification to 
exclude DeFunis. Rather, it announced that, in ostensible 
conformity with the commands of this Court, “the burden is 
upon the law school to show that its consideration of race in 
admitting students is necessary to the accomplishment of a 
compelling state interest.” (507 P. 2d at 1182.)

In short, the controversy in this Court is not over the ques­
tion whether a racial classification was used as the basis for 
the exclusion of DeFunis, but whether that otherwise un­
constitutional racial classification was validated by “a com­
pelling state interest.”



It is our position that a racial classification that takes the 
form of a racial quota, as in this case, is unconstitutional vel 
non, because racial quotas are anathema to the concept of 
individual freedom. But we submit that even if a racial quota 
does not fall into a special invalid category of its own giving 
rise to an irrebuttable presumption of violation of the Four­
teenth Amendment, the racial classification here cannot be 
validly imposed within the limits of the Equal Protection Clause.

II. A Racial Classification by a State Is Invalid Under the Equal 
Protection Clause Except as a Specific Remedy for Specific 
Unconstitutional or Illegal Racial Discrimination.

Not since Hirabayashi v. United States, 320 U. S. 81 (1943), 
and Korematsu V. United States, 323 U. S. 214 (1944), has 
this Court permitted the use of race as a factor for classifica­
tion, except to cure an earlier illegally imposed racial dis­
crimination. And even in those cases in which this Court has 
sanctioned such limited cognizance of a racial factor, the use 
of the racial factor has been condoned only to assure the 
elimination of the illegal discrimination and never as a tool 
for “reverse discrimination” of the kind sought to be justified 
by the Washington Supreme Court here. Cf. Griggs v. Duke 
Power Co., 401 U. S. 424, 430-31 (1971).

The Washington Supreme Court rested heavily on a dictum 
of this Court in Swann v. Charlotte-Mecklenburg Board of 
Education, 402 U. S. 1, 16 (1971), which affords no support 
for the conclusion reached by the state court. At most, Swann, 
in its context of remedial litigation, suggested that a school 
system might provide for the distribution of students already 
in the system in the relative proportions of the races in the 
school system as a whole.

Indeed, the Washington Supreme Court recognized that the 
use of “race” in Swann was justified only “to prevent the per­
petuation of discrimination and to undo the effects of past 
segregation.” (507 P. 2d at 1180.) But it failed to recognize



22

that there was no showing on the record in this case of any 
past discrimination by respondents that purported to be remedied 
by the law school’s use of a racial quota. Nor did it seem to 
understand that Swann did not endorse a “fixed racial balance 
or quota” even in the presence of a clear demonstration of 
prior discrimination. Winston-Salem/Forsyth County Board oj 
Education V. Scott, 404 U. S. 1221, 1227 (1971).

It is equally important to see that in Swann, and other cases 
dealing with segregation in public schools, the contemplated 
remedy—a remedy for specific racial discrimination—is a reas­
signment of students within the system. The “racial balances” 
involved in those cases denied no white or black, Indian or 
Asiatic, education at a state school. Here, however, the law 
school’s admission process flatly denied access of white students, 
including DeFunis, to state educational facilities in order to 
make them available to others of different race, because of their 
race.

Each of the cases cited by the Washington Supreme Court to 
justify the racial discrimination indulged by the law school here, 
e.g., Swann, supra; Porcelli V. Titus, 431 F. 2d 1254 (3d Cir., 
1970); Carter V. Gallagher, 452 F. 2d 315 (8th Cir., 1971), 
tolerates the use of a racial standard by the state, but only to 
cure racial discrimination imposed by the party against whom 
the remedy is ordererd. In this case, however, there is nothing 
in the record on which to base a finding of unequal treatment by 
race in the University of Washington, or, indeed, in the State 
of Washington.

Generalized historical assertion about conditions somewhere 
in the United States some time in the past is not the premise of 
the remedial discrimination cases decided by this Court, nor 
should it be. If such a predicate were allowed to replace care­
ful, specific findings of discrimination as the necessary condition 
for sustaining reverse discrimination, such state racial preferences 
would be constitutionally sanctioned in a wide range of cir­
cumstances that would denigrate if not destroy the concept of



23

racial equality specified in the Equal Protection Clause. Nor, in 
the light of our history, see, e.g., G. Myers, A History of 
Bigotry in the United States (rev. ed. 1960), would such 
“benevolence” be limited to those few “minorities” singled out 
by the State of Washington here. “The clear and central pur­
pose of the Fourteenth Amendment was to eliminate all official 
state sources of invidious racial discrimination in the States.” 
Loving v. Virginia, 388 U. S. 1, 10 (1967).

We submit that the use of race as a standard for the elimina­
tion of specific prior racial discrimination permits only the 
elimination of specific prior racial discrimination and not a sub­
stitution of racial discrimination against others.

III. The “Benign” Intent of the Framers of the Racial Quota 
Here Cannot Save If. The Validity of State Racial Discrimi­
nation Is Measured by Effect Not Motive.

It is argued that the racial quotas adopted by the law school 
here are not “invidious” because their purpose was “benign.” 
But respondents’ purpose in effecting its racial quota system is 
irrelevant. It is not the purpose but the effect of a racial classifi­
cation that commands its invalidation. Cf. Griggs v. Duke Power 
Co., 401 U. S. 424, 432 (1971). This is a lesson that this 
Court has continuously declared. For example, in Wright v. 
Council of City of Emporia, 407 U. S. 451, 462 (1972), the 
Court answered “Thus, we have focused upon the effect—not the 
purpose or motivation—of a school board’s action in determining 
whether it is a permissible method of dismantling a dual system. 
The existence of a permissible purpose cannot sustain an action 
that has an impermissible effect.” And in Burton v. Wilmington 
Parking Authority, 365 U. S. 715, 725 (1961), the Court 
said: “[N]o State may effectively abdicate its responsibilities 
by either ignoring them or by merely failing to discharge them 
whatever the motive may be. It is of no consolation to an in­
dividual denied the equal protection of the laws that it was 
done in good faith.”



24

The Supreme Court of Washington conceded that “the 
minority admissions policy is certainly not benign with respect to 
nonminority students who are displaced by it.” (507 P. 2d 
at 1182.) Since it is the “nonminority student” who is the 
victim of this invalid racial classification, that should suffice 
to dispose of the argument of the benign nature of the racial 
classification. But there is even reason to doubt the State 
court’s notion that the evil of a racial quota does not stigmatize 
the “minority student” who gains admissions under such cir­
cumstances. For there is certainly the great possibility of that 
consequence, especially where, as under the law school’s ad­
missions program, the lower admission standards for “minority 
students” were such a well-publicized element. (St. 418; Exh. 
45.) A recent black graduate of a law school put the problem 
cogently:

Traditionally, first-year law students are supposed to be 
afraid, or at least awed; but our fear was compounded by 
the uncommunicated realization that perhaps we were not 
authentic law students and the uneasy suspicion that our 
classmates knew that we were not, and like certain members 
of the faculty, had developed paternalistic attitudes toward 
us. (McPherson, The Black Law Student: A Problem of 
Fidelities, Atlantic 88 (April 1970).)

The quota system is admittedly not “benign” so far as the 
excluded majority applicants are concerned. There is little or 
no basis for suggesting that it is not “invidious” and “stigmatiz­
ing” for the category of applicant labelled by race as incapable 
of meeting the standards applied to others. See Graglia, Spe­
cial Admission of the “Culturally Deprived’ to Law School, 
119 U. Pa. L. Rev. 351, 353-59 (1970).

Indeed, a racial quota is always stigmatizing and invidious, 
particularly when it is applied to areas concerned with intel­
lectual competency and capacity.* This is so essentially for the

» It is suggested that such a statement lacks sincerity if 
made by a non-black. And so we have attached as an Ap­
pendix to this brief a copy of a nationally syndicated interview 
with Dr. Kenneth Clark, no stranger to this Court’s decisions, 
which confirms the position advanced by us here.



25

reasons stated by Professor Thomas Sowell in his book BLACK 
EDUCATION, MYTHS AND TRAGEDIES 292 (1972):

[T]he actual harm done by quotas is far greater than 
having a few incompetent people here and there— and 
the harm that will actually be done will be harm primarily 
to the black population. What all the arguments and cam­
paigns for quotas are really saying, loud and clear, is that 
black people just don’t have it, and that they will have 
to be given something in order to have something. The 
devastating impact of this message on black people— 
particularly black young people—will outweigh any few 
extra jobs that may result from this strategy. Those black 
people who are already competent, and who could be 
instrumental in producing more competence among this 
rising generation, will be completely undermined, as black 
becomes synonymous—in the minds of black and white 
alike—with incompetence, and black achievement be­
comes synonymous with charity or payoffs.

A racial quota is derogatory to those it is intended to benefit 
and depriving of those from whom is taken what is “given” to 
the minority. A beneficent quota is invidious as it is patron­
izing.

IV. There Are No “Compelling State Interests” to Justify the 
Racial Quotas Used by the Respondents to Determine Ad­
mission to the State’s Law School.

The Washington Supreme Court announced that the law 
school’s racial policies were on their face presumptively invalid 
but might be justified on a showing of a “compelling state in­
terest.” It then examined the evidence and proceeded to vali­
date the racial quotas on what, at most, could be called a 
“rational means” test.

As we have already argued, there can be no “compelling state 
interest” for racial classification by the state except for its use 
to eliminate adverse racial classification theretofore imposed, 
or perhaps where the nation’s security in time of war may be 
thought to justify such classification. See Korematsu v. United



26

States, 323 U. S. 214 (1944); Hirabayashi v. United States, 
320 U. S. 81 (1943). Assuming, however, that racial quotas 
can be justified by some other “compelling state interest,” there 
is no such interest justified in this record.

The record in this case is devoid of support for the conclu­
sion of “compelling state interest.” Indeed, there was no con­
scious effort by respondents at trial to demonstrate any com­
pelling state interest. Respondents’ case rested primarily on 
“the cultural disadvantage” which the admissions committee 
wished to take into account in awarding places in the class. 
It was assumed, but not shown, that cultural disadvantage 
could be correlated with the four minority groups whose mem­
bers were to be given preferential treatment. (St. 416; 73-74; 
90; 108; 353; 400-01; 418-19; 424-25.) As one witness on 
compensatory pre-law training put it: “In formal terms, we 
articulate our concern for the economically and culturally dis­
advantaged. I suppose in practical terms our efforts have been 
largely with the minority group student . . .” (St. 125.) The 
equation between the “minority group students” and the cul­
turally deprived can no more be made to justify racial classifica­
tion than can the equation between minority groups and the 
economically deprived in the political sphere. Compare Reit- 
man v. Mulkey, 387 U. S. 369 (1967), with James v. Valtierra, 
402 U. S. 137 (1971).

When asked to explain the law school’s race-based preferen­
tial treatment, respondents repeatedly claimed to be favoring 
applicants from deprived cultural and educational backgrounds. 
Those who offered this justification included the chairman of 
the school’s admissions committee (St. 352; 402), the dean of 
the law school (St. 416-18; 424-25), the president of the Uni­
versity (St. 225; 243-44), and the former chairman of the 
board of trustees of the university (St. 108, 111). The evi­
dence is, however, dear that defendants did not give pref­
erential treatment to “deprived students” who were not blacks,



27

Chicanes, Indians, or Philippines. (See, e.g., St. 344; 352; 
399.)

There is nothing in this record that shows that membership 
in one of the four minority races correlates with such depriva­
tion. Indeed, a member of one of the favored minorities was 
to be treated as “culturally deprived” so far as the law school 
was concerned, even if he came from a highly intellectual and 
cultured family. Moreover, if a correlation could be made that 
showed every member of the four racial minorities to fall into 
the category of culturally and educationally deprived, the 
classification would still be invalid for underinclusiveness be­
cause it would fail to include culturally and economically de­
prived persons who are not members of these four racial 
minorities.

What the Constitution prohibits is that admissions be deter­
mined by race. Equal protection might not be offended by con­
sideration of cultural deprivation; it is offended by considera­
tions of race. If elimination of cultural deprivation were the 
compelling principle, however, it was not the guide used for 
special treatment for admissions to the law school here. The 
rule established for the University of Washington School of 
Law was simply that it was easier for a black, a Chicano, an 
American Indian, or a Philippino to enter than for a white or 
an Asian, without regard to the cultural deprivation from which 
the applicant may or may not have suffered. (St. 108-09; 225; 
243-44; 261; 418; 423-24; 431.)

To support the so-called state interest in discrimination on the 
basis of race the Supreme Court of Washington relied only on 
three bits of evidence: (1) a self-serving declaration by the 
dean of the law school (St. 416); (2) the text of an impromptu 
speech given by the president of the University to a group of 
striking black students in 1968 during the time of the “univer­
sity troubles” (Exh. 13); and (3) a “Survey of Black Law 
Student Enrollment” giving statistics for 125 law schools in­
cluding the University of Washington School of Law for the



28

year 1970-71 (Exh, 7). These three items are patently in­
adequate to carry the “heavy burden” of showing a compelling 
state interest of the State of Washington in discriminating in 
favor of four racial groups in filling its law school classes.

In this case the State, thus, made only a token effort to 
shoulder the heavy burden of proving a compelling state interest 
in racial discrimination. Even if the minimal proof accepted by 
the Supreme Court of Washington could qualify under a ra­
tional means test, it cannot meet the compelling state interest 
test. The substitution of the lower quantum of proof is explicitly 
forbidden by a consistent line of cases in this Court dealing 
with racial classifications. Slaughterhouse Cases, 16 Wall. 36, 
71 (1870: Strauder v. West Virginia, 100 U. S. 303, 307-08 
(1880); Ex parte Virginia, 100 U. S. 339, 344-45 (1880); 
Hirabayashi v. United States, 320 U. S. 81, 100 (1943); 
Korematsu v. United States, 323 U. S. 214, 216 (1944); Oyama 
v. California, 332 U. S. 633, 644-46 (1948); Bolling v. Sharpe, 
347 U. S. 497, 499, (1954); McLaughlin v. Florida, 379 U. S. 
184, 191-92 (1964); Loving v. Virginia, 388 U. S. 1, 10-11 
(1967); Hunter v. Erickson, 393 U. S. 385, 392 (1969); 
Graham V. Richardson, 403 U. S. 365, 372 (1971).

That the compelling state interest necessary to justify a racial 
quota has not been established here may be quickly seen from 
a glance at the decisions of this Court in recent years that have 
applied that standard. Although none of them involved so patent 
a violation of the Equal Protection Clause as a racial quota, in 
each case this Court has ruled that the interest of the state was 
not sufficient to override the prima facie violation of the Equal 
Protection Clause. McLaughlin v. Florida, 379 U. S. 184 
(1964); Carrington v. Rash, 380 U. S. 89 (1965); Harper v. 
State Board of Elections, 383 U. S. 663 (1966); Williams v. 
Rhodes, 393 U. S. 23 (1968); Kraemer v. Union Free School 
District, 395 U. S. 621 (1969); Dunn v. Blumstein, 405 U. S. 
330 (1972). Indeed, as the Chief Justice pointed out in his dis­
sent in Dunn v. Blumstein, “[No] state law has ever satisfied this



29

seemingly insurmountable standard.” (405 U. S. 330, 363-64 
(1972).)

The “compelling interest” standard has another attribute that 
was substantially ignored by the Washington Supreme Court 
and that dictates the reversal of that court’s judgment. This 
Court stated in Dunn v. Blumstein, supra, 405 U. S. at 343: 
“[I]f there are other, reasonable ways to achieve those goals 
with a lesser burden on constitutionally protected activity, a 
State may not choose the way of greater interference. If it 
acts at all, it must choose ‘less drastic means.’ ” There was in 
this case no substantial undertaking to discover the feasibility 
of means other than the utilization of a presumptively invalid 
racial quota for admission to the law school to accomplish the 
alleged state interests asserted here.

Obviously, as the compelling state interest cases already cited 
reveal, this Court is not the place to examine the alternatives 
that might permit the State to bring more of the culturally 
deprived members of racial minorities into the law school on 
an equal footing with other students. Affirmative action pro­
grams, not quotas are the requirements of national policy. 
(See our brief in support of the petition for certiorari in this 
case at pp. 19 et seq.) An “open admission” policy without 
racial standards might afford the answer. It might also be 
possible to open more places in law schools at the University 
of Washington or in other State university facilities where 
admission would not depend on the racial characteristics of the 
applicants. Special schooling might be afforded for preparation 
for admission to law schools for those who cannot meet the 
existent standards without such additional training, but again 
only so long as that schooling is not afforded on a racial basis. 
This case, however, involves no legitimate affirmative action, 
but a racial quota. As our brief in support of the petition for 
certiorari pointed out, so-called affirmative action programs that 
are not circumscribed in terms consistent with the Equal Pro­
tection Clause collapse into the very evil they seek to cure.



30

The social problem that the Washington Supreme Court pur­
ported to address cannot properly be considered one of quantity 
rather than quality. Even if it were legitimate to postulate, 
as that court did, that a lawyer or doctor should be trained to 
serve only persons of the same skin color or parental origins 
—a proposition that itself is inconsistent with the doctrine of 
equality underlying the Fourteenth Amendment—-those doctors 
and lawyers should have the same appropriate skills and capac­
ities as those practising their professions on behalf of others. 
The answer to the problem cannot be, as the Washington court 
would have it, a simple play on numbers. This we think should 
be evident from the fact that the alleged compelling state in­
terest asserted by the Washington court here—providing train­
ing for black lawyers to serve black clients—would most easily 
and readily be met by creation of additional separate law schools 
for “minority” applicants who do not meet the standards for 
admission to existent law schools. No one doubts that the 
patent invalidity of such racial classification could not be over­
come by the “compelling state interest” asserted here. Neither 
can the racial device actually used by the law school be justified 
by the “compelling state interest” found by the Washington 
Supreme Court.

The most charitable reading of the Washington Supreme 
Court’s decision is that it has said that the alternative means for 
reaching its goal are more difficult, more time-consuming, more 
expensive. So long as the alternatives have the virtue of con­
stitutionality, however, the Equal Protection Clause commands 
their use rather than the unconstitutional means that may be 
quicker, or less difficult, or less expensive. If the goals attributed 
to the state here are constitutionally valid, they cannot be ac­
complished by the unconstitutional means of that most invidious 
of discriminatory devices, the racial quota.



31

CONCLUSION.
The judgment below should be reversed because it condones 

the use of a patently unconstitutional means to an invalid end. 
A racial quota creates a status on the basis of factors that have 
to be irrelevant to any objectives of a democratic society, the 
factors of skin color or parental origin. A racial quota derogates 
the human dignity and individuality of all to whom it is applied. 
A racial quota is invidious in principle as well as in practice. 
Though it may be thought here to help “minority” students, it 
can as easily be turned against those same or other minorities. 
The history of the racial quota is a history of subjugation not 
beneficence.

The evil of the racial quota lies not in its name but in its 
effect. A quota by any other name is still a divider of society, 
a creator of castes, and it is all the worse for its racial base, 
especially in a society desperately striving for an equality that 
will make race irrelevant, politically, economically, and socially.

Respectfully submitted,

Alexander M. Bickel,
261 St. Ronan Street,
New Haven, Connecticut 06511, 

Philip B. Kurland,
Two First National Plaza, 
Chicago, Illinois 60670,

Attorneys for Amicus Curiae.

Larry M. L avinsky,
300 Park Avenue,
New York, New York 10022,

Arnold Forster,
315 Lexington Avenue,
New York, New York 10016, 

Of Counsel.



APPENDIX.

This article appeared first in The Chicago Tribune for 29 June 
1971 under the heading “Compassion, Minorities, and Subtle, 

"Racism.” This photocopy is made from a republiCation in
The Kansas City Star

«£ By Joan Beck 
° What are  the most urgent 
,  seeds of disadvantaged, mi*
• s tr i ty  group children?

To be free of the label of 
disadvantaged” — w h e t b  
tt‘* ■ used with sentiment 
compassion or as an excu 
for subtle racism—and to 
held to a singla standard 

: high performance in school 
effective teachers.

« So says Dr. Kenneth B.
. Clark, psychologist and educa- 

* t tor.. Dr. Ciark is president of 
i  the Metropolitan Applied Re­

search Center in New York.
' professor of psychology at 
r  O ty  College of New York and 

author of several books about
• the effect of racism on young­

ster*. ..
Celling lower-class, minori­

ty-group youngsters "disad-
• eantaged”  or "culturally de­

prived” and lowering academ­
i c ! 'expectations and school 
standard*—even out of kind­
ness and compassioo-cuickJy 
b e c o m e s  a self-fulfilling . 
prophecy of massive educa­
tional underachievement, Dr.

| G ark  emphasizes.
\ Tpjj compassion "i* based

You and Your Child

on characterizing or stereo-
t y p i n g  whole groups of 

> children as IntellectuaUy and 
academically inferior." notes 
D r. C lark. A**umina thoy can- 
so t achieve normally io school 
Until economic, environmen­
tal. racial and pouueal dis­
advantages have been re­
moved simply becomes "an 
excuse or an explanation for 

• the unwillingness or inability” 
to  provide them effective edu­
cation.

•On the surface these cul- ■ 
fural. environmental and edu- 

, cational theories about disad­
vantage are seen as rejections 

* of racism and as reflecting nn 
•understanding and comp3s- 
•ion for the limitations of the 

. culturally deprived child," ac­
knowledge* Dr. Clark.

•B u t under the cube of 
compassion and understand­
ing. educational disadvantage 
ia reinforced and under condi- 

. boo* encouraged,” bo says.

these children by anticipating 
the limitation* of their Intel­
lectual and academic capacity 
and modifying classroom and 
school policies and procedure* 
has precisely the tam e effect 

---------- '

, i Dr. Clark, "For black*^ 
j held to lower standards, 

different standard* or in aome 
» standards is a most 

contemptible form of rac ism .,,

’Tcd'Tiijl know1 oTaiing!®  •
situation in which minority- ■* 
group children in a school or : 
educational setting where 
compassionate acceptance j 
and understanding translated 
into terms of lowered expccta- 
tions. have led to any acccpta-. 
ble kind of performance on 
the part of these children,” 
Dr. Clark declares.

Historically American pub­
lic schools have shown that 
when “ normal children are 

: taught effectively without re­
gard for the disadvantages of 
their parents, they have been 
ibio to uso education as A 
means of overcoming econom­
ic disadvantage,”  Dr. Ciark 

■ observes.

Won

IfoisU Dr. C lir i ,  !> (*r 
fcr* to use " that most innor* 
tive of innovations in our taj 
ner<ity schoois—to teach, i .

He urges that teacher* iwf:
be certified until they havi 
completed three to h*« y««* 
in tne classroom, teaching uta; 
der close supervision. He 
g , lr ict pyatem of toseber *b- 
countability is essential for efi 
f e c 1 1 v e teaching, rsa  h i '  
wants teachers to be pawI <m|j;
* basis not of longevity but <r 
"demonstrated prefer 
effectivenes*.”

Dr. G ark  advocate* a  “ rig­
orous, tough-minded, hard- 
nosed educational program; 
with a single standard of aca-h 
domic expectation and pera 
formance.” Such standard**,* 
would r e s t o r e  to minority,.* 
youngsters the feelings of if 
competence and _ setf-esteemjif 

Only in the case of darker* | they cannot develop knowing\t 
, . , .. , i« rxr-ectcd of them thanivskinned minority groups have less 15 _ ------------- 1

educators argued that the 
schools were incapable of ac­
complishing this historic func- 
Jjoq .

The explanation for to 
many lowcr-ciass, minority 
group youngsters failing to 
meet the usual academic 
standards in schooi, according 
to Dr. Clark, is simply inef­
fective teaching. '

"These children are not be- -
ing taught adequately in the’ 
classroom.” he insists. "They

• are cot taken seriously as hu- 
: man beings, as indicated by 
i being held to normal stacd- 
j ards. They are not perceived

as human beings who arc ca*
• pabie of meeting standards. 

Tncy are being treated—ei-
1 Ihcr malignantly or benevo-. 

k-ntly—as if they were uoedu- 
<pb!e. They are being suDjcct- . 
ed to special programs de-' 
signed to reinforce and verify 
the these* of uncducability.

"One of the burdens of be- . 
ing a child of a minority 
group is that you have no way 
of protecting yourself from in­
novative program*,” he com­
ment*.

of others. And competitiveness^ 
would improve their morale |», 
and performance just * ** 
does in athletics—-----

Emphasizes Dr. G ark, “ Ijs.t
am opposed to multi?'** stand-H 
ards, to multiple entrance re-U  
quirements, to multiple *P*}r. 
proachcs to work for a  de- I 
gree.” Tney impiy, he note*. J 
cither that blacks are biolog-it 
icaiiy inferior or that the sen- ft 
limcntahsta* cultural depriva- i 

•tion tncories are right and wet! 
will never be able "to  deal 1 
with human being* without | 
the irrelevance of color or
race.” ...

m *  t p p m l  K C TpttK . a  W lat I h u .  T n i x i u n  otM ,

" I  want these special pro-j] 
grams and special consider*- |  
tions and special condition* |  
and special dormitorie* arid jj 
special remediation* to be J 
ever tomorrow," he stress**.

**lf the funds spent on these i 
p r o g r a m s  were used t o }
strengthen a tough-minded ed- l 
ucalional system with a  high j 
degree of accountability, vig- |  
orous standards of curriculum *̂ 
and professional expectation*, Ju 
within- a m atter of two cr 
three years, the result* would j 
be dramatically positive.**

CkKM* *■*-»«♦-» VW» M M