DeFunis v. Odegaard Brief of a Group of Law School Deans as Amici Curiae

    IN' THE

§>upxm? QJmtrt rtf i\\t Inttrft
October Term, 1973

No. 73-235

M arco D eF unis, et al., Petitioners,

V.

Charles Odegaard, et al., Respondents.

On Writ of Certiorari to the Supreme Court of the 
State of Washington

BRIEF OF A  GROUP OF LAW  SCHOOL DEANS 
AS AMICI CURIAE

H oward A. Glickstein 
M ichael B. W ise

Center for Civil Rights 
University of Notre Dame 
Notre Dame, Indiana 46556

D avid H . H unter 
Washington, D.C.

Attorneys for Amici

Press or B yron S. Adams P hinung, Inc., W ashington. D. C.



GROUP OF LAW  SCHOOL DEANS AS AMICUS CURIAE

T hom as  W eldon C h b isto ph er , Dean, University of Ala­
bama School of Law

G ordon A. C h risten so n , Dean, American University Law 
School

E dgar S. Cailn , Co-Dean, Antioch School of Law
J ean  C am per  C a h n , Co-Dean, Antioch School of Law
W illard  H . P edrick , Dean, Arizona State University 

College of Law
R ichard  G. H uber , Dean, Boston College of Law
P au l  M. S isk in d , Dean, Boston University School o f  Law
E dward C. H albac ii, Jr., Dean, University of California 

School of Law, Berkeley
D an ie l  J. D y k stra , Dean, University of California School 

of Law, Davis
M arvin  J. A nderson , Dean, University of California, 

Hastings College of Law, San Francisco
M urray  L. S ch w a r tz , Dean, University of California, Los 

Angeles, School of Law
L indsey  C o w en , Dean, Case Western Reserve University, 

Franklin T. Bacus Law School
E . Clin to n  B amberger, J r ., Dean, Catholic University of 

America School of Law
A r t h u r  H. T ravers, Jr., Acting Dean, University of Colo­

rado School of Law
F rancis C. C ady, Acting Dean, University of Connecticut 

School of Law
R oger C. Cram ton , Dean, Cornell Law School
R obert B. Y egge, Dean, University of Denver College of 

Law
L y m a n  R ay P atterson , Dean, Emory University School of 

Law



J oshua  M. M orse, III, Dean, Florida State University Col­
lege of Law

A drian  S anford  F ish e r , Dean, Georgetown University Law 
Center

R obert K ram er , Dean, George Washington University 
National Law Center

J. L a n i B ader, Dean, Golden Gate College School of Law
T h e  R everend F rancis J. C o n k l in , S.J., Dean, Gonzaga 

University School of Law
M onroe H. F reedm an , Dean, Hofstra University School 

of Law
A lbert R. M enard , J r ., Dean, University of Idaho College 

of Law
W ayne  R. L aF ave, Acting Dean, University of Illinois Col­

lege of Law
D ouglass G. B osh kofe , Dean, Indiana University School 

of Law
J am es R . M erritt , Dean, University of Louisville School 

of Law
F rederick  J. L ow er, Jr., Dean, Loyola University School 

of Law, Los Angeles
M arcel Garsaud, J r ., Dean, Loyola University School of 

Law, New Orleans
G ordon D. S chaber , Dean, McGeorge School of Law, Uni­

versity of the Pacific
T heodore J. St. A n to in e , Dean, University of Michigan 

Law School
Carl A. A uerbach , Dean, University of Minnesota Law 

School
F rederick M. H art , Dean, University of New Mexico 

School of Law
R ichard  D. S ch w artz , Dean, State University of New York 

at Buffalo School of Law



L eM arquis D eJ arm o n , Dean, North Carolina Central Uni­
versity School of Law

D ickson  P h il l ip s , Dean, University of North Carolina 
School of Law

J am es A . R a h l , Dean, Northwestern University School of 
Law

T hom as L. S h affer , Dean, University of Notre Dame Law 
School

J am es C. K irby , J r ., Dean, Ohio State University College 
of Law

E ugene F. S coles, Dean, University of Oregon School of 
Law

B ernard W o lfm an , Dean, University of Pennsylvania Law 
School

W illard  H eckel , Acting Dean, Rutgers, The State Uni­
versity of New Jersey School of Law, Newark

R ichard  J efferson  C hildress, Dean, St. Louis University 
School of Law

D onald T. W eck stein , Dean, University of San Diego 
School of Law

C. D elos P u t z , J r ., Dean, University o f  San Francisco 
School of Law

George J. A lexander , Dean, University of Santa Clara 
School of Law

R obert W. F oster, Dean, University of South Carolina 
School of Law

D orothy  W. N elson , Dean, University of Southern Cali­
fornia Law Center

P eter  J ames L iacouras, Dean, Temple University School 
of Law

O tis H. K in g , Dean, Texas Southern University School of 
Law

R obert B. McK ay, Dean, New York University School of
Law



S am u el  D. T h u r m a n , Dean, University of Utah College of 
Law

A lfred W. M eter , Dean, Valparaiso University School of 
Law

R obert L. K nauss , Dean, Vanderbilt University School of 
Law

W illard  D. L orensen , Dean, West Virginia University 
College of Law

L arry K. H arvey, Dean, Willamette University College of 
Law

George B u n n , Dean, University of Wisconsin Law School
E. George R u d olph , Dean, University of Wyoming College 

of Law

(The institutional association of the signers of this brief
is provided for identification purposes. The signers do not
necessarily represent the view of their institutions.)

R ichard B. A mandes, Dean, Texas Tech University School
of Law



TABLE OF CONTENTS
Page 
. 1Interest of the Amici . ,

Consent of the Parties

Question Presented . .

Summary of Argument

Argument ............. .

The admissions policy of the University of Washington 
School of Law represented the exercise of sound 
administrative judgment..................................... .
I. Determining whom to admit to a law school class 

involves weighing a myriad of factors, both sub­
jective and objective ..........................................

II. The racial and ethnic background of applicants 
is an appropriate factor to consider in determin­
ing admissions to law school . ............................
A. Purely mechanical criteria are an inadequate

basis for determining the composition of a 
law school class ...............................................

B. The desirability of a heterogeneous student
body is an appropriate element of a law 
school’s admission policy ..............................

C. The nature of legal services required by the 
public is an appropriate consideration for a 
law school in constituting its student body . .

D. It is appropriate for a law school’s admis­
sions policy to be sensitive to the pivotal role 
played by the legal profession in our national 
life ..................................................................

2

2

2

3

3

3

8

10

11

13

15



11 Table of Contents Continued

Page
E. It is appropriate for the admissions policy of 

a public law school to be sensitive to the need 
to overcome the effects of past and present 
illegal discrimination suffered by minority
group members .....................................    16
1. The paucity of minority lawyers is the re­

sult of discrimination................................  16
2. Voluntary remedial action is not depend­

ent upon a finding of discrimination.........  19
3. Remedial action may impinge on the ex­

pectations of others.................................... 21

Conclusion .............................   24

INDEX OF CITATIONS
Ca se s :

Addabbo v. Donovan, 16 N.Y.2d 619, 209 N.E.2d 112,
261 N.Y.S.2d 68 (1965), cert, denied, 382 U.S. 905
(1965) .......................................................................  19

Associated General Contractors of Massachusetts, Inc.
v. Altshuler, 6 EPD U 8993 (C.A. 1, 1973) ........... 9, 22

Balaban v. Rubin, 14 N.Y.2d 193, 199 N.E.2d 375, 250 
N.Y.S.2d 281, cert, denied, 379 U.S. 881 (1964) .. 19

Balsbaugh v. Rowland, 447 Pa. 423, 290 A.2d 85 (1972) 19
Booker v. Board of Education, 45 N.J. 161, 212 A.2d 1

(1965) .......................................................................  19
Brooks v. Beto, 366 F.2d 1 (C.A. 5, 1966) ................... 10
Brown v. Board of Education, 347 U.S. 483 (1954) . . 17
Carter v. Gallagher, 452 F.2d 315, modified en banc,

452 F.2d 327 (C.A. 8, 1972), cert, denied, 406 U.S.
950 (1972) .................................    22

Chance v. Board of Examiners, 458 F.2d 1167 (C.A. 2,
1972) .............    20

Contractors Association of Eastern Pennsylvania v. 
Secretary of Labor, 442 F.2cl 159 (C.A. 3, 1971),
cert, denied, 404 U.S. 854 (1971) ......................... 20,22

Deal v. Cincinnati Board of Education, 369 F.2d 55
(C.A. 6, 1966), cert, denied, 389 U.S. 847 (1967). .7,19



Index of Citations Continued m

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

(1973) .....................................   4,13
Fuller v. Volk, 230 F. Supp. 25 (D.N.J. 1964), vacated 

on other grounds, 351 F.2d 323 (C.A. 3, 1965), 
adhered to on the merits, 250 F. Supp. 81 (D.N.J.
1966) ............................ .'.........................................  19

Gaston County v. United States, 395 U.S. 285 (1969). . 21
Guida v. Board of Education, 26 Conn. Supp. 121, 213

A.2d 843 (Super. Ct. 1965) ............................ . 19
Guinn v. United States, 238 U.S. 347 (1915) ...............  6
Johnson v. Pike Corporation of America, 332 F. Supp.

490 (C.D. Cal. 1971)  .................................... 21
Keyes v. School District No. 1, Denver, Colorado, 413

' U.S. 189 (1973) ....... ...............................................  17
Local 189, United Papermakers and Paperworkers, 

AFL-CIO v. United States, 416 F.2d 980 (C.A. 5,
1969), cert, denied, 397 U.S. 919 (1970) ............... 20

McDaniel v. Barresi, 402 U.S. 39 (1971) ................... 18
Meredith v. Fair, 298 F.2d 696 (C.A. 5, 1962) ........... 6
Morean v. Board of Education, 42 N.J. 237, 200 A.2d 97

(1964) .......................................................................  19
North Carolina State Board of Education v. Swann,

402 U.S. 43 (1971) ..................................................  19
Norwalk CORE v. Norwalk Redevelopment Agency,

395 F.2d 920 (C.A. 2, 1968) ........................ . .18, 20, 21
(Merman v. Nitowski, 378 F.2d 22 (C.A. 2, 1967) . . . .  19
Oregon v. Mitchell, 400 U.S. 112 (1970) ..................... 21
Porcelli v. Titus, 431 F.2d 1254 (C.A. 3, 1970), cert.

denied, 402 U.S. 944 (1971) ............................. ..20,22
School Committee of Boston v. Board of Education,

352 Mass. 693, 227 N.E.2d 729 (1967), appeal dis­
missed, 389 U.S. 572 (1968) .................................. 19

Sobol v. Perez, 289 F.Supp. 392 (E.D. La. 1968).........  14
Springfield School Committee v. Barksdale, 348 F.2d

261 (C.A. 1, 1965) .............................................. . . 8 , 2 0
Swann v. Charlotte-Mecklenburg Board of Education,

402 U.S. 1 (1971) ..........................................8,12,19, 23
Sweat! v. Painter, 339 U.S. 629 (1950) . . . ._............. 12,17
Tometz v. Board of Education, Waukegan City, 39 111.

2d 593, 237 N.E.2d 498 (1968) ..............................  19
United States v. Bethlehem Steel Corporation, 446 F.2d 

652 (C.A. 2, 1971) .................. ............................... 22



IV Index of Citations Continued

Page
United States v. Jefferson County Board of Education,

372 F.2d 836 (C.A. 5, 1966), cert, denied sub nom. 
Board of Education of Bessemer v. United States,
389 U.S. 840 (1967) ...............................................  9

United States v. Louisiana, 252 F.Supp. 353 (E.D. La.
1963), aff’d, 380 U.S. 145 (1965) ............................  9

United States v. Wood, Wire and Metal Lathers In­
ternational Union, Local Union 46, 341 F.Supp,
694, (S.D.N.Y. 1972), aff’d, 471 F.2d. 408 (C.A. 2,
1973), cert, denied, 412 U.S. 939 (1973) ...............  22

Wanner v. County School Board of Arlington County, 
Virginia, 357 F.2d 452 (C.A. 4, 1966) .................  8,19

S t a t u t e s :

5 U.S.C. §§ 3309, 3312 ................................................... 5
38 U.S.C. §§ 1681, 1801-27 ......................................... . 5
42 U.S.C. § 1477 ..............................................................  5
42 U.S.C. §§ 2000e et seq..................................................  22
43 U.S.C. § 186 ................................................................  5
50 U.S.C. App. §§ 459, 1884 ...........................................  5

C o n stitu tion al  P kovision :

Fourteenth Amendment .........................................  2

M iscellaneous :

Bell, Black Students in White Schools: The Ordeal
and the Opportunity, 1970 Toledo L. Rev. 539. . . .  15

Consalus, The Law School Admission Test and the
Minority Student, 1970 Toledo L. Rev. 5 0 1 .........  6, 7

Gellhorn, The Law School and the Negro, 1968 Duke
L.J. 1068...............    ...13,17

Graglia, Special Admission of the ‘ ‘ Culturally De­
prived”  to Law School, 119 U. Pa. L. Rev. 354
(1970)........................................................................... 14

Lasswell & McDougal, Legal Education and Public 
Policy: Professional Training in the Public In­
terest, 52 Yale L.J. 203 (1943)......................   15



Index of Citations Continued y

Page
Morris, Equal Protection, Affirmative Action and 

Racial Preferences in Law School Admissions, 49
Wash. L. Rev. 1 (1973)...........................................  14

O’Neil, Preferential Admissions: Equalizing the Ac­
cess of Minority Groups to Higher Education, 80
Yale L.J. 699 (1971)...................... ; ......................6, 3.4

O’Neil, Preferential Admissions: Equalizing Access to
Legal Education, 1970 Toledo L. Rev. 281............  12

Oppenheim, The Abdication of the Southern Bar in L.
Friedman, ed., Southern Justice 127 (1965). . . . . .  14

Pinderhughes, Increasing Minority Group Students in 
Law Schools: The Rationale and the Critical Is­
sues, 20 Buf. L. Rev. 447 (1971)........................... 10,16

Reynoso et al., La Raza, the Law, and the Law
Schools, 1970 Toledo L. Rev 809..........................14,17

Strickland, Redeeming Centuries of Dishonor: Legal 
Education and the American Indian, 1970 Toledo
L. Rev. 847....................................... ................... .14,17

Twentieth Century Fund, Administration of Justice
in the South 3 (1967) ......................................... .. 14

TT.S. Bureau of the Census BLS Report No. 394, Series
P-23, No. 38, Table 67 . . . . . . .  ........................ 17

IT.S. Bureau of the Census, Current Population Re­
ports, Series P-23, No. 46, Table 7 (1972) ...........  18

U.S. Bureau of the Census, 1970 Census of Popula­
tion, PC(2)lc, PC (2)lf, PC (2)lg ......... ............ . 17

1972 Proceedings of the Association of American Law 
Schools ............. ........................................ .............. 12



IN' THE

Aupran? (tort ni tl?r lnttr&
October Term, 1973

No. 73-235

Marco DeE itnis, et al., Petitioners, 
v.

Charles Odegaard, et al., Respondents.

On Writ of Certiorari to the Supreme Court of the 
State of Washington.

BRIEF OF A GROUP OF LAW SCHOOL DEANS 
AS AMICI CURIAE

INTEREST OF THE AMICI
The amici are deans of law schools located through­

out the United States who are concerned with the effect 
a decision reversing the Supreme Court of Washington 
would have on the admission policies and student com­
position of law schools throughout the nation. The 
deans believe that law schools must retain the adminis­
trative flexibility and discretion to employ a wide 
range of criteria, both subjective and objective, in 
selecting those students who can best contribute to their 
law school and to the legal profession. The deans 
believe that it is equally imperative that law schools 
continue to be permitted to consider the minority status 
of an applicant as one criterion in the admissions 
process so that they can effectively fulfill their obli­
gation to take affirmative steps to overcome the con­
tinuing effects of past discrimination in law schools 
and in the legal profession.



2

CONSENT OF THE PARTIES

Marco DeFunis, et al., and Charles Odegaard, el al., 
by their attorneys, have consented to the filing of this 
brief. Their letters of consent are on file with the 
Clerk of this Court.

QUESTION PRESENTED

Does a state supported school of law violate the 
Equal Protection clause of the Fourteenth Amendment 
when, in endeavoring to overcome the effects of past 
discrimination, it considers an applicant’s racial or 
ethnic background among the many factors it weighs 
in determining whom to admit?

SUMMARY OF ARGUMENT

The University of Washington Law School, like 
most law schools, employs a wide range of criteria in 
selecting students for admission who can best con­
tribute to the law school and to the legal profession. 
These law schools have found that many of the goals 
they hope to accomplish through their admission poli­
cies would go unrealized were they mechanically and 
uncritically to accept candidates solely on the basis 
of college grade averages and LSAT scores. Several 
of the most important of these admission policies re­
quire the law schools to consider the race and ethnic 
background of the applicant as one of the many factors 
that are examined in reaching a decision. These poli­
cies include the desire to insure a representative 
student body, the desire to help overcome the critical 
shortage of minority group lawyers so that all groups 
are represented in the profession so influential in both 
public and private policy decisions in the United States, 
and, most important of all, the desire to remedy the 
continuing effects of racial and ethnic discrimination



3

which has for so long denied minority groups their 
rightful place of equality in American society. Such 
voluntary efforts to overcome our nation’s legacy of 
slavery and discrimination are constitutionally permis­
sible and should be encouraged.

ARGUMENT

The Admissions Policy of the University of Washington 
School of Law Represented the Exercise of Sound 
Administrative Judgment.

I. DETERMINING WHOM TO ADMIT TO A LAW  SCHOOL 
CLASS INVOLVES WEIGHING A MYRIAD OF FAC­
TORS, BOTH SUBJECTIVE AND OBJECTIVE.

Choices among different people are generally dif­
ficult. Choosing among applicants for a law school 
class is no exception. Indeed, in the case of the Uni­
versity of Washington Law School in its selection of 
the class entering in the fall of 1971 the difficulties 
were staggering. There were 1601 applications for 
no more than 150 positions in the class. (Finding X , 
A. 48) 1 Since most of the applicants were considered 
capable of doing the work which is required in law 
school, the school faced two difficult questions: What 
criteria were to be used to choose among capable ap­
plicants? How can those criteria be applied within 
the limits of the manpower available to review the 
applications and the time available for this process?

The school found appropriate and workable answers 
to both questions. In selecting applicants for ad­
mission the admissions committee followed this 
standard:

“ In assessing applications, we began by trying to 
identify applicants who had the potential for out­

1 References to material in the Single Appendix are denoted 
herein as “ A .”



4

standing performance in law school. We at­
tempted to select applicants for admission from 
that group on the basis of their ability to make 
significant contributions to law school classes and 
to the community at large.”  (A. 34-5)

The committee’s interpretation of this standard was 
guided in part by the University policy to eliminate 
“ the continued effects of past segregation and dis­
crimination”  against minority group members. 
DeFunis v. Odegaard, 82 Wn. 2d 11,19, 507 P. 2d 1169, 
1175 (1973).

Members of the admissions committee spent about 
1300 hours in the process of deciding whom to admit. 
Much more time would have been necessary if certain 
steps had not been taken to facilitate the decision­
making process. For each applicant a predicted 
first year average (P F Y A ) was calculated based on 
college grades, the LSAT aptitude score, and the 
LSAT writing score, and this figure was used to 
separate the applications into three groups, which re­
ceived different levels of attention. Secondly, appli­
cations from minority group members wTere considered 
separately. These steps were taken in order to es­
tablish general criteria applicable to all candidates 
and to insure that special factors relevant to minority 
candidates were taken into consideration. No appli­
cant was either accepted or rejected solely on the basis 
of his or her PFYA. No applicant was either ac­
cepted or rejected solely on the basis of his or her race 
or ethnic background. DeFunis v. Odegaard, 82 
Wn. 2d at 17, 19, 20, 39-40, 507 P. 2d at 1173, 1174, 
1175, 1185-86.

The PFYA , based upon the LSAT score and college 
grades, was only one part of the decision-making 
process. It stands out because it is the only factor 
which is quantifiable, but this should not lead to an



overrated estimate of its importance. Its weight 
might vary from applicant to applicant. For ex­
ample, experience with particular colleges might in­
dicate that their grades predicted very well the law 
school grades of students coming from it. Such 
grades would be relied on more than grades from, a 
school which had sent few students to the law school 
before or from a school whose grades did not predict 
law school performance. Two students were admitted, 
moreover, who had no grades at all from the last two 
years of college. (A. 40-41)

Grades and test scores are not all that schools con­
sider in determining whom to admit. Law schools 
(and other institutions of higher education) use a 
variety of criteria in reviewing applications. For ex­
ample, the University of Washington Law School gave 
preference to a certain class of veterans, men who had 
been admitted in the past but had been unable to at­
tend the law school because of the draft. These ap­
plicants were admitted automatically. (A. 31) In 
some cases these veterans could not meet current 
standards. Though one could argue that admitting 
such a veteran deprives a better qualified applicant of 
a place in the lawT school, considerations of fairness 
and of national policy make this preference unobjec­
tionable. 2

Some state universities and law schools give pref­
erence to residents of the state, though no claim is 
made that residents of the particular state are better 
students. In fact, petitioner argued unsuccessfully 
below that the University of Washington was required

S3

2 Preference for veterans is a common feature of many of our 
laws. See, e.g., 5 TJ.S.C. §§ 3309, 3312; 38 U.S.C. §§ 1681, 1801-27; 
42 U.S.C. § 1477; 43 U.S.C. § 186; 50 U.S.C. App. §§459, 1884.



6

to give such a preference under state law. Other 
schools give preference to nonresidents.

Preference is sometimes given to children of alumni, 
even though at most schools this would work to the 
disadvantage of minorities, as does a preference for 
those applicants who have famous or wealthy parents. 
Cf. Guinn v. United States, 238 U.S. 347 (1915) ; 
Meredith v. Fair, 298 P. 2d 696 (C.A. 5, 1962). See 
O’Neil, Preferential Admissions: Equalizing the Ac­
cess of Minority Groups to Higher Education, 80 Y ale 
L. J. 699, 703-05 (1971).

The LSAT score is more closely related to academic 
competence, hut it is both an attractive and a dangerous 
criterion. It is attractive because it is the sole com­
mon denominator among all the applicants and its 
three-digit character gives it the appearance of objec­
tivity and precision. It is dangerous because at its 
best the information which it gives us is limited, and 
its appearance may be misleading.

The LSAT is designed to predict success in first year 
law school courses; its usefulness in doing this is ac­
cepted by almost all law schools. But it has the limita­
tions that any test of this type has in that it is subject 
to errors of measurement3 and it predicts first year 
grades imperfectly. It predicts grades well enough 
to be very useful in considering large numbers of stu­
dents, but it leaves much uncertainty when individual

8 A  score, for example, of 550 indicates that there are two 
chances out of three that the score reflecting the true ability of 
the individual is between 520 and 580. Thus to prefer the appli­
cant with a score of 550 to one with a score of 520 or 530 has 
questionable justification. If, therefore, there are one or two 
hundred applicants all of whom have scores within 60 points of 
each other, the LSAT score is a very dubious basis for comparison. 
See Consalus, The Law School Admission Test and the Minority 
Student, 1970 U. Toledo L. Rev. 501, 512-13.



7

students are considered. For example, if one is com­
paring a student with a 600 to one with a 500 one must 
realize that there are many factors which might lead 
the 500 student to perform as well as the 600 student. 
Motivation, financial problems, family problems, self- 
confidence, ability to get along with other students 
and with members of the faculty, interest in the 
courses, the possibility of illness—these are not meas­
ured on the LSAT. See Consalus, supra at 513.

In short, the selection of students for admission to 
law school involves the exercise of informed judgment. 
A  mechanistic ranking of candidates is not necessarily 
in the interest of the law school, the legal profession 
or society. Here the University of Washington 
weighed a multiplicity of factors, and no one factor 
was the sole basis for granting or denying admission 
to the law school. Accordingly, courts should be very 
reluctant to interfere with the difficult exercise of dis­
cretion which is required by the law school admissions 
process. A law school can be compared to a school 
board trying to devise an educationally sound remedy 
for racial imbalance and the problems resulting from 
unequal education:

“ The School Board, in the operation of the public 
schools, acts in much the same manner as an ad­
ministrative agency exercising its accumulated 
technical expertise in formulating policy after 
balancing all legitimate conflicting interests. I f  
that policy is one conceived without bias and ad­
ministered uniformly to all who fall within its 
jurisdiction, the courts should be extremely wary 
of imposing their own judgment on those who 
have the technical knowledge and operating re­
sponsibility for the educational system.”  Deal v. 
Cincinnati Board of Education, 369 F.2d 55, 61 
(C. A. 6, 1966), cert, denied, 389 U.S. 847 (1967).



8

Accord, Swann v. Charlobte-Mecklenburg Board of 
Education, 402 U.S. 1 (1971); Wanner v. County 
School Board of Arlington County, Virginia, 357 F.2d 
452 (C.A. 4, 1966).

II. THE RACIAL AND ETHNIC BACKGROUND OF APPLI­
CANTS IS AN APPROPRIATE FACTOR TO CONSIDER 
IN DETERMINING ADMISSIONS TO LAW  SCHOOL.

W e contend that race and ethnic background is an 
appropriate factor to consider in determining who is 
or is not admitted to a law school. The consideration 
given to race and ethnic background is included as jiart 
of the admission formula not because it per se is a 
test of the qualifications of an applicant to law school, 
but because race and ethnic background represents a 
congery of factors—discussed below—that a law 
school is justified in taking into account.4 Since these 
interrelated factors, unlike race and ethnicity, are not 
immutable, wre can expect them to disappear eventu­
ally. At such time, the consideration of race and 
ethnicity qua race and ethnicity no longer will be ap­
propriate.5 But “  [t]he promise of even handed jus-

4 Cf. Springfield School Committee v. Barksdale, 348 F.2d 261, 
266 (C.A. 1, 1965) : “ The defendants’ proposed action [eliminat­
ing racial concentrations in schools] does not concern race except 
insofar as race correlates with proven deprivation of educational 
opportunity . . . .  It would seem no more unconstitutional to 
take into account plaintiffs’ special characteristics and circum­
stances that have been found to he occasioned by their color than 
it would be to give special attention to physiological, psychological 
or sociological variances from the norm occasioned by other fac­
tors. That these differences happened to be associated with a 
particular race is no reason for ignoring them.”

5 For example, although Asian-Americans, Jewish-Americans, 
and Italian-Americans all have been subject to discrimination, 
this discrimination and its effects appear not to present a barrier 
to their admission to the University of Washington Law School.



9

tice in the future does not bind our hands in undoing 
past injustices.”  United States v. Louisiana, 252 F. 
Supp. 353, 396 (E. D. La. 1963), aff’d, 380 U.S. 145 
(1965).

It is unrealistic to suggest that at this time color 
blindness is possible in the evaluation of applications 
for law school admission. The history of discrimi­
nation in the United States based on color, culture, 
and language is too long, and the continuing effect of 
that discrimination is too clear in the low educational 
and economic status of victimized minority groups to 
allow color blindness. “ After centuries of viewing 
through colored lenses, eyes do not adjust when the 
lenses are removed.”  Associated General Contractors 
of Massachusetts, Inc. v. Altshuler, 6 EPI) U8993 
(C.A. 1, 1973). See also, United States v. Jefferson 
County Board of Education, 372 F. 2d 836, 876 (C. A. 
5, 1966), cert, denied sub nom. Board of Education of 
Bessemer v. United States, 389 U.S. 840 (1967).

An admissions committee would face an intractable 
task in evaluating the potential of a minority appli­
cant if  it could not consider the obstacles which the 
applicant has had to overcome in his or her academic 
and personal development. How can an admissions 
committee evaluate in a color blind way the handicap 
of a segregated elementary or secondary education, 
how can it evaluate the effect on an applicant of being 
placed in a class for the mentally retarded in elemen­
tary school merely because the student’s primary 
language was not English, or how can it evaluate the 
effect of attending boarding school hundreds of miles 
from home where the student’s language and culture 
were systematically denied1? These judgments can 
not be made without considering the status of the ap­



10

plicant as a member of a victimized minority. As the 
Court of Appeals for the Fifth Circuit noted:

“ How then is this constitutional imperative to be 
achieved in a society that still bears the ugly 
scars of decades of racial segregation with all of 
its discriminations ? For it is in this social struc­
ture that the problem arises. And it is in this 
social structure—not that of the hoped for idyllic 
state when the last vestige of this invidious dis­
tinction has gone away—that the constitutional 
ideal must be made to work.”  Brooks v. Beto, 
366 F.2d 1, 22-23 (C.A. 5, 1966).6

A. Purely mechanical criteria are an inadequate basis for 
determining the composition of a law school class.

While there are problems present in the interpreta­
tion of the grades and the LSAT scores of any appli­
cant, with minority applicants these problems are mul­
tiplied. With white applicants law schools have had 
years of experience in evaluating the significance of 
LSAT scores. With minority applicants there is little 
experience either at the University of Washington or 
at other law schools. The problems peculiarly related 
to race with which minorities must cope at all levels 
of education can affect college grade averages and re­
sults on standardized tests.

The law school had reason to believe that a low score 
by a minority applicant on the LSAT might not be 
a bar to acceptable performance in law school. Stu­
dents who must cope with racially related disadvan­
tages throughout their educational careers cannot be 
expected to perform as well on the LSAT as other 
students but still might have the underlying ability

8 See Pinderhughes, Increasing Minority Group Students in Law 
Schools: The Rationale and the Critical Issues, 20 Bur. L. Rev. 
447, 454 (1971).



11

to succeed in law school. Even with lower scores or 
grades, the minority students accepted at the Wash­
ington Law School were found to be qualified. Es­
pecially if the student attends a summer session prior 
to law school to improve his basic skills and to famil­
iarize himself with the study of law and if the faculty 
is willing to give extra attention to the needs of minor­
ity students, there is a good likelihood that such stu­
dents will succeed in law school despite relatively low 
PFYAs. Thus to require the school to consider white 
and minority applicants together on the basis of their 
PFYAs is to require it to do something which would 
prevent its taking account of other highly legitimate 
considerations discussed herein.

The LSAT is designed to predict first year averages. 
More important ultimately, however, is the capability 
of the law student at the end of his law school career. 
For whites, first year grades generally are a good in­
dicator of how well the student will do in the second 
and third years. For minorities they may be a less 
accurate predictor. Adjusting socially and academic­
ally to the demands of law school can be the primary 
activity of the first year. Overcoming educational de­
ficiencies and gaining needed self-confidence takes 
time.

B. The desirabilily of a heterogeneous student body is an 
appropriate element of a law school's admission policy.

The University of Washington had sound educa­
tional reasons for wanting a multi-racial student 
body.7 Many of the most serious legal and public pol­

7 Until the last few years the number of minority law students 
in the entire country as well as at the University of Washington 
was extremely low. In the 1964-65 school year there were ap­
proximately 700 black law students, including 267 in predom-



12

icy issues that the lawyer will face in his career are 
related to the issues of race and poverty. All students 
will gain from having students of different racial and 
ethnic backgrounds participate in in-class and out-of­
class discussions of these issues and from learning to 
live in a multi-racial community.8

Success in law school cannot be viewed as an end 
in itself. A  law school is a professional school, train­
ing men and women to go out into the world and act 
as lawyers. The wisdom of Sweatt v. Painter, 339 
U jS. 629, 634 (1950), is as relevant today as it was 
a generation ago:

“  [A]lthough the law is a highly learned pro­
fession, we are well aware that it is an intensely 
practical one. The law school, the proving ground 
for legal learning and practice, cannot be effective

inantly black schools in the South. This represents only 1.3 
percent of the total law school enrollment, barely enough for 
blacks to maintain their proportion of the legal profession. O’Neil, 
Preferential Admissions: Equalizing Access to Legal Education, 
1970 T oledo L. Rev. 281, 300. In the 1967-68 school year, after 
many law schools had begun to recruit minority students, there 
were only 180 Mexican Americans and 32 American Indians en­
rolled in law school. Id. at 301 n. 58. Enrollment figures for 
subsequent years are as follows: 1969-70: black, 2128; Mexican 
American, 412; American Indian, 72. 1971-72: black, 3732;
Mexican American, 881; American Indian, 140. 1971 Survey of
Minority Group Students in Legal Education, quoted in 1 1972 
P roceedings of the A ssociation of A merican Law  Schools 74.

8 See Swann v. Charlotte-Mecklenburg Board of Education, 402 
U.S. at 16: “ School authorities are traditionally charged with 
broad powder to formulate and implement educational policy and 
might well conclude, for example, that in order to prepare 
students to live in a pluralistic society each school should have a 
prescribed ratio of Negro to white students reflecting the propor­
tion for the district as a whole. To do this as an educational 
policy is within the broad discretionary powers of school authori­
ties . . . . ”



13

in isolation from the individuals and institutions 
with which the law interacts. Pew students and 
no one who has practiced law would choose to 
study in an academic vacuum, removed from the 
interplay of ideas and the exchange of view7s with 
which the law is concerned. ’ ’

The great increase in the number of qualified -appli­
cants to law school,9 coupled with a mechanical use 
of the PFYA , threatened to make the University of 
Washington Law School into just such an “ academic 
vacuum. ’ ’

C. The nature of legal services required by the public is an 
appropriate consideration for a law school in constituting 
its student body.

The greatest shortage of legal services is in minor­
ity communities—ghettos, barrios, reservations. Mem­
bers of these communities have been denied an ade­
quate number of qualified lawyers and judges who 
understand from firsthand experience the seriousness 
of the many problems facing these communities and 
the urgent need to find both short-range and long- 
range solutions. While some white lawyers will prac­
tice in these communities and be as effective as a mi­
nority lawyer, minority lawyers are more likely to 
serve minority communities and in some instances will 
be able to provide better service:10 They have greater

9 In the past three years the number of applications had gone 
from 704 to 1601. DeFunis v. Odegaard, 82 Wn. 2d at 15 507 
P.2d at 1172-73.

10 Few of the nation’s lawyers are minority group members. 
In 1966 only about one percent was black. Gellhorn, The Law 
School and the Negro, 1968 Duke L.J. 1068, 1073. Even if the 
size of the legal profession could be kept constant, an additional 
30,000 black attorneys would need to be trained before blacks 
would achieve parity in the legal profession. Gellhorn, id. at



14

familiarity with the community and its problems, they 
are able to communicate more effectively with the 
residents and gain their trust, and—in the case of the 
Spanish-speaking community—their ability to speak 
the same language is indispensable.11 In some in­
stances, the interests of a minority group and those of 
whites will be adverse. In such a case the minority 
group might be better served by a lawyer who shared 
the same interests.

This is not meant to imply that minority law stu­
dents should be only trained to and should be ex-
1073. Nationwide figures for Mexican Americans do not appear 
to be available. Data from specific areas are suggestive of the 
problem, however. In Denver, for example, about nine percent 
of the population is Mexican American, yet only 10 of the city ’s 
2,000 attorneys (one half of one percent) have Spanish surnames. 
O ’Neil, 80 Y ale L.J. at 727. In 1968, less than one percent of 
the attorneys in California had a Spanish surname, although 12 
percent of the state’s population is of Spanish surname. Reynoso 
et al, La Baza, the Law, and the Law Schools, 1970 Toledo L. Rev. 
809, 816. In 1968 there were almost no Indian lawyers in the 
country. See discussion in Strickland, Redeeming Centuries of 
Dishonor: Legal Education and the American Indian, 1970 Toledo 
L. Rev. 847, 861-66. With specific reference to the state of Wash­
ington, in 1970, of the 4,550 active lawyers, only 20 were blacks 
(three of whom were judges), five were part or full-blooded Amer­
ican Indians and none was Mexican American. Thus, there was 
one Anglo lawyer for approximately every 720 whites, one black 
lawyer for approximately every 4,195 blacks, one American Indian 
lawyer for approximately every 6,677 Indians and not one Mex­
ican American lawyer for the 70,734 Mexican Americans in the 
state. Morris, Equal Protection, Affirmative Action and Racial 
Preferences in Law Admissions, 49 W ash . L. Rev. 1, 38 (1973).

11 Cf. Graglia, Special Admission of the “ Culturally Deprived”  
to Law School, 119 U. P a . L. Rev. 351, 354 (1970), with Twen­
tieth Century F und, A dministration of Justice in the South 
3 (1967) and Oppenheim, The Abdication of the Southern Bar in 
L. F riedman, ed., Southern Justice 127 (1965). See Sobol v. 
Perez, 289 F. Supp. 392 (E.D. La. 1968).



15

peeted to serve minority communities. On the con­
trary, they should receive the same training as every 
other law student and should be free to practice what­
ever kind of law in whichever community they choose.12 
In fact, there has been an increasing realization by 
law firms, government agencies and corporations that 
minority lawyers have a vital role to play in fulfilling 
the responsibilities of the legal profession, and career 
opportunities for minority lawyers outside the mi­
nority community are bright.

D, It is appropriate for a law school's admissions policy to be 
sensitive to the pivotal role played by the legal profession 
in our national life.

Law firms have a leading role in our society, and 
lawyers are well represented in public office at all levels 
in the local, state, and federal governments, and in 
private corporations. W e are ‘ ‘ a nation that professes 
deep regard for the dignity of man and that in prac­
tice relies to an extraordinary degree upon the advice 
of professional lawyers in the formation and execu­
tion of policy.”  Lasswell & McDougal, Legal Educa­
tion and Public Policy: Professional Training in the 
Public Interest, 52 Y ale L.J. 203, 291 (1943). The 
insight and particular sensitivity which minority 
group lawyers and judges can bring to the law as an 
institution has been lacking. Thus, if  a racial or eth­
nic group is to share in the power, responsibility, and 
benefits of society it must be well represented among 
the legal profession.

The legal profession, moreover, has a special re­
sponsibility to set an example for the rest of the na­

12 See Bell, Black Students in White Law Schools: The Ordeal 
and the Opportunity, 1970 Toledo L. Rev. 539, 551-58.



16

tion for providing equal opportunity and overcoming 
the effects of past discrimination, for lawyers have 
a special duty to uphold the Constitution and the legal 
system.

Minority lawyers also have an important role as 
citizens in the minority community. Lawyers often 
have leadership roles, and they provide an example to 
young people, showing them that it is possible to have 
a professional career despite their racial or ethnic 
background.

“ The most striking factors underlying motivation 
to seek entry into law school may he related to 
close personal association with a lawyer as a rela­
tive, or a friend, and to encouragement from fam­
ily, friends, or counsellors. These factors are too 
often missing in law-deprived communities where 
there is a lack of exposure to opportunities in 
law, and inadequate information and counselling 
at all school levels.”  Pinderhughes, supra at 454,

E. li is appropriate for the admissions policy of a public law 
school to be sensitive to the need to overcome the effects 
of past and present illegal discrimination suffered by 
minority group members.

1. The paucity of minority lawyers is the result of discrimination.

The factors which have led to the small number of 
minority lawyers are many. They are all the result— 
direct or indirect—of discrimination and would con­
tinue unabated even with “ color blind”  treatment. 
Accordingly, a significant increase in the number of 
minority lawyers cannot he expected without color 
conscious efforts.

While not the universal pattern, until recently many 
law schools refused to admit blacks, and many blacks 
who were able to attend law school could only do so at



17

all Negro institutions. Cf. Sweatt v. Painter, supra. See 
Gull horn, supra at 1069-70. As late as 1960 the Duke 
University School of Law would not admit blacks, 
and in 1962 the University of Richmond refused to ad­
mit two blacks because of their race. Gfellhorn, id. at 
1070 n. 12. I f  a black did manage to graduate from law 
school he faced discrimination from bar associations, 
law firms, and government agencies. See Gellhorn, id. 
at 1070,1093. Thus blacks were discouraged from going 
to law school by their prospects after graduation, were 
denied admission to law school if  they nevertheless 
applied, and were less likely to be able to practice law 
if they graduated.13

Secondly, discrimination in elementary and sec­
ondary education throughout the country makes it 
less likely that minorities will attend college and obtain 
degrees than whites.14 Since to be admitted to almost 
all law schools one must have an undergraduate de­
gree, the pool of potential minority applicants to law 
school is severely restricted compared to that of 
whites.15

is For information concerning the participation of Mexican 
Americans and American Indians in the legal profession see 
Reynoso, ei al., supra, and Strickland, supra.

14 Nearly twenty year ago, in Brown v. Board of Education, 347 
U.S. 483 (1954), this Court noted that school segregation “ has 
long been a nationwide problem, not merely one of sectional con­
cern.”  Id. at 491 n. 6. It continues to be a nationwide problem. 
See, e.g., Keyes v. School District No. 1, Denver, Colorado, 413 
U.S. 189 (1973).

15 For persons in the 25 to 34 year old bracket in 1970, 16.6 
percent of whites had graduated from college, while only 6.1 percent 
of blacks, 5.3 percent of persons of Spanish heritage, 1.1 percent 
of Indians, and 3.6 percent of Philippine Americans. Bureau op 
the Census BLS Report No. 394, Series P-23 No. 38, Table 67; 
U. S. B ureau op the Census, 1970 Census op Population, PC 
(2 )lc , Table 6, PC (2 )If, Table 5, P C (2)lg , Table 35.



18

Thirdly, the combined effect of discrimination in 
education and employment has resulted in minorities 
having a lower median family income than whites.16 
They are thus less able to afford the expense of law 
school. Lower incomes also make it more burden­
some to postpone full time employment for three 
years.

The effects of discrimination in education and em­
ployment and other areas of life are continuing and 
cumulative. Color blindness will not help a law school 
remedy the effects of these barriers. Indeed, when a 
remedy for past discrimination is being fashioned the 
consideration of race becomes necessity:

‘ ‘What we have said may require classification by 
race. That is something which the Constitution 
usually forbids, not because it is inevitably an 
impermissible classification, but because it is one 
which usually, to our national shame, has been 
drawn for the purpose of maintaining racial in­
equality. Where it is drawn for the purpose of 
achieving equality it will be allowed, and to the ex­
tent it is necessary to avoid unequal treatment by 
race, it will be required.”  Norwalk GORE v. 
Norwalk Redvelopment Agency, 395 F.2d 920, 931 
(C.A. 2, 1968).

See also McDaniel v. Barresi, 402 U.S. 39, 41 (1971).

18 In 1972 the median income of Negro families was $6,864 as 
compared to $11,549 for whites. U. S. Bureau of Census, Cur­
rent P opulation R eports, Series P-23, No. 46, Table 7 (1972).



19

2. Voluntary remedial action is not dependent upon a finding of 
discrimination.

Since the effects of discrimination are pervasive 
throughout American society, it is appropriate for all 
institutions to take affirmative action to overcome 
racial inequalities. Courts have not found the ab­
sence of preexisting discrimination a. bar to school 
boards’ taking voluntary action to increase racial bal­
ance within them. Offerman v. Nitowski, 378 F.2d 
22, 24 (C.A. 2, 1987).17 Although Swarm v. Char- 
lotte-Mechlenburg, supra, arose in the context of 
the dismantling of a state required dual school 
system, it suggested that voluntary remedial action is 
permissible. 402 U.S. at 16; North Carolina State 
Board of Education v. Swann, 402 XJ.S. 43, 45 (1971). 
Accord, Wanner v. County School Board of Arlington 
County, Virginia, 357 F.2d at 454. Where courts have 
declined to order a remedy for de facto segregation 
they have indicated that voluntary remedies are 
allowed. Beal v. Cincinnati Board of Education, 369

17 Accord, Fuller v. Yolk, 230 F. Supp. 25 (D.N.J. 1964), vacated 
on other grounds, 351 F.2d 323 (C.A. 3, 1965), adhered to on the 
merits, 250 F. Supp. 81 (D.N.J. 1966) ; Guida v. Board of Educa­
tion, 26 Conn. Supp. 121, 213 A.2d 843 (Super. Ct. 1965) ; Morean 
v. Board of Education, 42 N.J. 237, 200 A.2d 97 (1964) ; Addabbo 
v. Donovan, 16 N.Y.2d 619, 209 N.E.2d 112, 261 N.Y.S.2d 68 (1965) 
cert, denied, 382 U.S. 905 (1965) ; Balaban v. Rubin, 14 N.Y.2d 
193, 199 N.E.2d 375, 250 N.Y.S.2d 281, cert, denied, 379 U.S. 881 
(1964). Similarly, courts have held that state legislative or ad­
ministrative action requiring school boards to take racially con­
scious actions to eliminate racial imbalance need not be based on 
any past or present discrimination. Tometz v. Board of Educa­
tion, Waukegan City, 39 I11.2d 593, 237 N.E.2d 498 (1968) ; School 
Committee of Boston v. Board of Education, 352 Mass. 693, 227 
N.E.2d 729 (1967), appeal dismissed, 389 U.S. 572 (1968) ; Booker 
v. Board of Education, 45 N.J. 161, 212 A.2d 1 (1965); Balsbaugh 
v. Rowland, 447 Pa. 423, 290 A.2d 85 (1972).



20

F.2d at 65; Springfield School Committee v. Barks­
dale, 348 F.2d at 265-66.

In the area of employment affirmative action to in­
crease the number of minority employees also has 
been allowed without a judicial finding that a par­
ticular employer or union engaged in discriminatory 
behavior. In Porcelli v. Titus, 431 F.2d 1254 (C.A. 
3, 1970), cert, denied, 402 U.S. 944 (1971), the Third 
Circuit allowed the Newark School Board to dis­
continue the use of a promotion list established in 
1953 and of oral and written tests used to determine 
who was qualified to become a principal or assistant 
principal. While the small number of black princi­
pals and assistant principals (3 out of 139) might 
have supported a finding of discrimination, the court 
did not rely on such a finding nor did it consider 
whether the tests employed were job related or 
whether any other evidence of discrimination was pres­
ent. The court instead relied on the relevance of 
color to the job. Cf. Chance v. Board of Examiners, 
458 F.2d 1167 (C.A. 2,1972); Local 189, United Paper- 
makers and, Paper workers, AFL-CIO  v. United 
States, 416 F.2d 980, 991 (C.A. 5, 1969), cert, denied, 
397 U.S. 919 (1970). See also Contractors Associa­
tion of Eastern Pennsylvania v. Secretary of Labor, 
442 F.2d 159 (C.A. 3, 1971), cert, denied, 404 U.S. 854 
(1971).

In Nortvalk CORE v. Norwalk Redevelopment 
Agency, supra, the Agency was required to take race 
into account in providing relocation housing because 
discrimination in the housing market made it more 
difficult for blacks than for whites to find legally 
adequate housing. There was no suggestion that the 
Agency was responsible for the discrimination, and



21

at that time discrimination in the private housing 
market was not considered illegal.

The situation of the law school is similar to that of 
the school boards, the employers or unions, and the 
redevelopment agency.

The law school can be viewed as the last step in 
an educational process that was permeated by illegal 
discrimination and segregation. It is justified in 
taking into account the “ broader patterns of exclusion 
and discrimination practiced by third parties and 
fostered by the whole environment in which most 
minorities must live.”  Johnson v. Pike Corporation 
of America, 332 F. Supp. 490, 496 (C.D. Cal. 1971). 
Accordingly, it is no less permissible for a school to 
take into account and seek to remedy discrimination 
by other parts of the nation’s educational system than 
it is to remedy its own. Cf. Oregon v. Mitchell, 400 
U.S. 112, 133, 146-47, 216-17, 282-84 (1970); Gaston 
County v. United States, 395 U.S. 285 (1969).

Although there has been no allegation that the Uni­
versity of Washington Law School or the state of 
Washington discriminated in any way against minori­
ties, the small number of minority students at the law 
school in prior years might reasonably have led the 
school to be concerned that its admissions policies had 
in fact had a discriminatory effect.

In short, if  courts have required governmental 
agencies to remedy discrimination which they did not 
cause, Norwalk CORE, supra, surely this Court should 
allow the law school to remedy such discrimination.

3. Remedial action may impinge on the expectations of others.

Both governmental and private action in our so­
ciety typically disadvantages some people—either di­



22

rectly or incidentally—as it benefits others. This is as 
true for actions taken to remedy racial inequalities as 
it is in other areas.

In employment cases where affirmative action plans 
are ordered or upheld there is generally some harm to 
potential white employees. As Judge Marvin 
Frankel said in discussing the remedies of Title V II  
of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e 
et seq.:

“  [I ]  t should be recognized . . . that the remedies 
Congress ordered are not required to be utterly 
painless. The court knows at least some of the 
things the whole world knows. We are aware 
that there is unemployment. W e are even more 
keenly aware that this case is launched by statu­
tory commands, rooted in dee]) constitutional 
purposes, to attack the scourge of racial discrimi­
nation in employment.”  United States v. Wood, 
W ire and Metal Lathers International Union, 
Local Union 46, 341 F. Supp. 694, 699 (S.IXN.Y. 
1972), aff’d., 471 F.2d 408 (C.A. 2, 1973), cert, 
denied, 412 U.S. 939 (1973).

In Porcelli v. Titus, supra, individual whites did not 
receive the promotions which they thought they had 
every reason to expect. While in most instances 
there will be no identifiable whites who are deprived 
of a job or a promotion, there will be a more or less 
readily identifiable class of whites potentially eligible 
for work or promotion. See Carter v. Gallagher, 452 
F. 2d 315, modified en hanc, 452 F.2d 327 (C.A. 8, 
1972), cert, denied, 406 U.S. 950 (1972); Contractors 
Association of Eastern Pennsylvania v. Secretary of 
Labor, supra; United States v. Bethlehem Steel Corpo­
ration, 446 F. 2d 652, 663 (C.A. 2, 1971) ; Associated 
General Contractors of Massachusetts, Inc. v. Alt­
shuler, supra.



23

Likewise the fact that whites (or blacks) might be 
inconvenienced by steps taken to dismantle a dual 
school system is not considered an argument with any 
weight.

“ The remedy for such segregation may be ad­
ministratively awkward, inconvenient, and even 
bizaare in some situations and may impose bur­
dens on some; but all awkwardness and inconven­
ience cannot be avoided in the interim period 
when remedial adjustments are being made to 
eliminate the dual school systems.”  Stvann v. 
Charlotte-Mecklenburg Board of Education, 402 
U.S. at 28.

In this case, as in cases remedying inequality in 
employment and education, the remedial action had 
an effect on who received the benefits of legal training 
by the University of Washington Law School. The 
remedy here was designed to eradicate the effects of 
past discrimination. To the extent that there were 
those whose expectations rested on the continuation of 
a system which perpetuated discrimination, they were 
likely to suffer some disappointment. But this dis­
appointment was mild in comparison to what courts 
have allowed.18

18 Petitioner is not necessarily among those damaged by the 
school’s action. Even if none of the 36 minority students had been 
admitted, his position on the waiting list would not have given 
him a position in the class. On the other hand, if the whole ad­
missions process were to be done over using new criteria or pro­
cedures, there is no guarantee that he would be admitted.



24

CONCLUSION

For all these reasons the University of Washington 
Law School exercised proper discretion in admitting 
students to the class entering in the fall of 1971, and 
the judgment of the Washington Supreme Court 
should therefore be affirmed.

Respectfully submitted,

H oward A. Glickstein
M ichael B. W ise

Center for Civil Rights 
University of Notre Dame 
Notre Dame, Indiana 46556

D avid H. H unter 
Washington, D.C.
Attorneys for Amici