DeFunis v. Odegaard Brief Amicus Curiae of the National Conference of Black Lawyers

    IN THE

£>uprm? (Hmtrt nf %  Initeii States
OCTOBER TERM, 1973

No. 73-235

MARCO DeFUNIS, et al.,

_ v._ Petitioners.

CHARLES ODEGAARD, President of the 
University of Washington, et al.,

Respondents.

On Writ of Certiorari to the Supreme Court of Washington

BRIEF OF THE NATIONAL CONFERENCE OF 
BLACK LAWYERS AMICUS CURIAE,

__________IN SUPPORT OF RESPONDENTS____________

DERRICK A. BELL, JR. 
Harvard Law School 
Cambridge, Mass. 02138 

Attorney for Amicus Curiae

Of Counsel:
LENNOX S. HINDS 
National Director,

National Conference 
of Black Lawyers 

126 West 119th Street 
New York, N.Y. 10027

HAYWOOD BURNS
University of New York at Buffalo 

School of Law 
Buffalo, N.Y. 14202



INDEX

PAGE
Interest of the Amicus

Consent to Filing 2

Opinions Below . 

Question Presented

3

3

Statement of the Case 3

Summary of Argument ......................... ...  6

Argument ...........................................................................  7

The respondent law school’s minority-admis­
sions policy is a constitutionally appropriate 
effort to remedy the effects of long-standing 
racial discrimination in the legal profession.

I. Some consideration of race is necessary to
remedy disadvantages imposed because of race • 8

II. A judicial finding of racial discrimination is not 
a condition precedent to adoption of a valid 
minority admissions program .................................... 10

III. Respondents’ minority admissions plan is not
rendered invalid because it alters expectations 
rooted in societal patterns that perpetuate racial 
inequality ............................................................. 11

IV. The historic exclusion of racial minorities from
the legal profession justified respondents’ af­
firmative efforts to attract qualified minority 
applicants.................................................................... 17



Table of Authorities

Alabamav. United States, 371 U.S. 37 ( 1 9 6 2 ) ..................  15
Allen v. Asheville City Board o f Education,

434 F.2d 902 (4th Cir. 1970) ........................................ 13
Anderson v. San Francisco Unified School District,

357 F. Supp. 248 (N.D. Cal. 1 9 7 2 ) ................................  13
Associated General Contractors o f Massachusetts,

Inc. v. Altshuler,_F.2d__, 42 U.S.L.W. 2320
(Dec. 25, 1 9 7 3 ) ................................................................. 17

Baker v. Columbus Municipal Separate School District,
462 F. 2d 1112 (5th Cir. 1972) ....................................  15

Briggs v. Elliott, 132 F. Supp. 776
(E.D. S.C. 1955)   8

Brown v. Board o f Education,
347 U.S. 483 (1954)   3,8,17,18

Carter v. Gallagher, 452 F.2d 315 (8th Cir. 1971) . . . .  9
Chance v. Board o f Examiners, 458 F.2d 1167

(2d Cir. 1972)   15
Citizens to Preserve Overton Park v. Volpe,

401 U.S. 402 (1971)   16
Contractors Association o f Eastern Pennsylvania v.

Secretary o f Labor, 442 F.2d 159
(3d Cir. 1971) ............................................................. • 9

Dandridge v. Williams, 397 U.S. 471 ( 1 9 7 0 ) ...................... 16
Deal v. Cincinnati Board o f Education,

369 F.2d 55, 61 (6th Cir. 1966) ....................................  10
DeFunis v. Odegaard, 82 Wn. 2d 11, 32-33, 507 P.2d

1169, 1182 (1973)    20,23
Dred Scott v. Sandford, 60 U.S. (19 Flow.)

393 ( 1 8 5 7 ) ........................................................................ 18

Cases: PAGE



Florida ex rel. Hawkins v. Board o f Control,
350 U.S. 413 (1956) ......................................................  21

Gaston County v. United States, 395 U.S. 285 (1969) . 9,15
Green v. County School Board o f New Kent County,

391 U.S. 430 (1968) ......................................................  8
Griggs v. Duke Power Co., 401 U.S. 424 (1971) . . . .  9,15
Guinn v. United States, 238 U.S. 347 (1915) ..................  15

Hobson v. Hansen, 269 F. Supp. 401,
476-88 (D. D.C. 1 9 6 7 ) ......................................................  15

Hunt v. Arnold, 172 F. Supp. 847 (N.D. Ga. 1959) . . . .  15

Keyes v. School District No. 1, Denver, Colo.,
413 U.S. 189,217 (1973) ...............................................12

Lee v. Nyquist, 318 F. Supp. 710 (W.D. N.Y. 1970),
a ff’d, 402 U.S. 935 (1 9 7 1 ) ...............................................  10

Local 53, Intern. Assoc, o f Heat and Frost Insulators 
and Asbestos Workers v. Vogler,
407 F.2d 1047 (5th Cir. 1969) ....................................  16

Local 189, United Papermakers and Paperworkers,
AFL-CIO v. United States, 416 F.2d 980
(5th Cir. 1969) ................................................................. 12

Louisiana v. United States, 380 U.S. 145 ( 1 9 6 5 ) .............. 15

Mancari v. Morton, 359 F. Supp. 585 (D. N.Mex. 1973) . 11
McLaughlin v. Florida, 379 U.S. 184, 192 (1964) . . . .  7
Meredith v. Fair. 305 F.2d 343, 351-354 (5th Cir. 1962) . 15
Missouri ex rel. Gaines v. Canada,

305 U.S. 337 (1938) ......................................................  21
North Carolina State Board o f Education v. Swann,

402 U.S. 43 (1971) .........................................................  10
Northcross v. Board o f Education o f Memphis,

466 F.2d 890, 898 (6th Cir. 1972)....................................  12

ii

PAGE



PAGE

Norwalk CORE v. Norwalk Board o f Education,
423 F.2d 121 (2d Cir. 1 9 7 0 ) ........................................... 13

Norwalk CORE v. Norwalk Redevelopment Agency,
395 F.2d 920, 931-32 (2d Cir. 1 9 6 8 ) ............................. 9

Offerman v. Nitkowski, 378 F.2d 22 (2d. Cir. 1967) . . .  10 
Otero v. New York City Housing Authority,

__F .2d _ ,42  U.S.L.W. 2185 (Oct. 9, 1 9 7 3 ) .................. 14

Porcelli v. Titus, 431 F.2d 1254 (3d Cir. 1970) ...............10

San Antonio Independent School District v. Rodriguez,
93 S. Ct. 1278, 1301-02 (1973) ....................................  16

Schnell v. Davis, 336 U.S. 933 ( 1 9 4 9 ) ................................ 15
Simmons v. Eagle Seelatsee,

244 F. Supp. 808 (E.D. Wash. 1965),
a ff’d per curiam, 384 U.S. 209 (1966).............................10

Sipeul v. Bd. o f Regents o f Univ. o f Oklahoma,
332 U.S. 631 (1948) . . . . .  ....................................  21

Springfield School Comm. v. Barksdale,
348 F.2d 261,266 (1st Cir. 1965) ................................  10

State ex rel. Citizens Against Mandatory Bussing
v. Brooks, 80 Wash. 2d 121,492 P.2d 536 (1972) . . .  13 

Swann v. Chariotte-Mecklenburg Board o f Education,
402 U.S. 1 (1 9 7 1 ) ......................................................... 8,10

Sweatt v. Painter, 339 U.S. 629 (1950) ............................. 21

Tometz v. Board o f Education, Waukegan City,
39 111. 2d 593, 237 N.E.2d 498 (1968) ......................... 10

T. V. 9, Inc. v. F.C.C.,
_ F .2 d _ , 42U.S.F.W. 2245 (Nov. 13, 1 9 7 3 ) ..............  11

United States v. Jefferson County Board o f  
Education, 372 F.2d 836, 876-77 (5th Cir. 1966) . . .  9

United States v. Montgomery County Board o f Education,
395 U.S. 225 (1969) ...................................................... 8

iii



IV

University o f  Maryland v. Murray, 169 Md. 478,
182 A. 590 (1936)   21

Other Authorities:
Anderson, The Admissions Process in Litigation,

15 Ariz. L. Rev. 81 (1 9 7 3 ) ............................................... 16
Association of American Law Schools, 1973 Survey o f 

Minority Group Students in Legal Education
(Dec. 1 9 7 3 ) .........................................................   21

Bell, Black Students in White Law Schools: The Ordeal
and the Opportunity, 1970 Toledo L. Rev. 539 . . . 17,21

P. Bergman, The Chronological History of the Negro in
America, 221 (1969) . .......................................................18

B. Bittker, The Case for Black Reparations 120 (1973) . . 8
Brown, The Genesis o f  the Negro Lawyer in New England,

22 The Negro Hist. Bull. 147, 148 ( 1 9 5 8 ) .....................  18
Carl and Callahan, Negroes and the Law,

17 J. Legal Ed. 250 (1 9 6 5 ) ............................................... 21
M. Davie, Negroes in American Society 115-16 (1949) . 19,20
Edwards, The New Role for the Black Law Graduate: A 

Reality or an Illusion? 69 Mich. L. Rev. 1407,
1432 (1971)     22

Gellhorn, The Law Schools and the Negro,
1968 Duke L.J. 1070. n. 1 3 .................................................. 20

J. Greenberg, Race Relations and American Law
260-69 (1959)   21

W. Grier and P. Cobbs, Black Rage ( 1 9 6 8 ) .........................  17
A. Haley, The Autobiography of Malcolm X,

36-37 ( 1 9 6 4 ) ....................................................................  20
Hughes, Reparations for Blacks? 43 N.Y.L.J.

1063,1072(1968)  12
Kagan, The IQ Puzzle: What Are We Measuring? No. 14

Inequality in Education, 5 (Jul. 1973)   15

PAGE



V

A. Kardiner and L. Ovesey, The Mark of Oppression (1962) 16
J. Kovel, White Racism: A Psychohistory (1 9 7 0 ) ..............  16
Leonard, The Development o f the Black Bar,

407 The Annals 134, 136 (May, 1973) ..................18,19
McGee, Black Lawyers and the Struggle for Racial 

Justice in the American Social Order,
20 Buffalo L. Rev. 423 (1971)...........................................  20

Morris, Equal Protection, Affirmative Action and
Racial Preferences in Law Admissions: DeFunis v.
Odegaard, 49 Wash. L. Rev. 1,4-5,
notes 1 4 -1 5 ......................................................................22,23

Note, Negro Members o f the Alabama Bar,
21 Ala. L. Rev. 309 (1969) ...........................................  21

Note, Race Quotas, 8 Harv. Civ. Rights-Civ. Lib.
L. Rev. 128 (1973)   9

Parker and Stebman, Legal Education for Blacks,
407 The Annals 144 (May 1 9 7 3 ) ....................................  22

Ramsey, Law School Admissions: Science, Art or Hunch?
12 J. Legal Ed. 503, 517 (1960) ....................................  15

R. Rosenthal, L. Jacobson, Pygmalion in the
Classroom ( 1 9 6 8 ) .............................................................  15

Schrader, Pitcher, Predicting Law School Grades for 
Black American Law Students, Law School Admission
Council (Mar. 1 9 7 3 ) .........................................................  15

Shuman, A Black Lawyer Study, 16 Howard
L.J. 3 0 4 (1 9 7 1 ) ................................................................. 20

Stevens, Two Cheers for 1870: The American Law School 
in Law in American History, 405, 428, n. 16
(D. Fleming and B. Bailyn eds. 1 9 7 1 ) .................................19

United States v. Georgia, No. 30, 388 (5th Cir. 1971),
Amicus Curiae brief for the National Educational
Association at 920-21  14

Wechsler, Toward Neutral Principles o f Law,
73 Harv. L. Rev. 1, 15, 3 1 -3 4 (1 9 5 9 ) ............................. 12

PAGE



IN THE

^hiuthu' tourt nf %  lltttteii States
OCTOBER TERM, 1973 

No. 73-235

MARCO DeFUNIS, et al.,
Petitioners,

— v . ~

CHARLES ODEGAARD, President of the 
University of Washington, et al,

Respondents.

On Writ of Certiorari to the Supreme Court of Washington

BRIEF OF THE NATIONAL CONFERENCE OF 
BLACK LAWYERS AMICUS CURIAE,

IN SUPPORT OF RESPONDENTS

Interest of the Amicus

The National Conference of Black Lawyers (NCBL) is an 
incorporated association of approximately 500 black lawyers 
in the United States and Canada, and 2,500 law students 
affiliated with NCBL through their membership in the Black 
American Law Student Association (BALSA).

Since its inception in December of 1968, NCBL, through 
its national office, local chapters, co-operating attorneys and 
the BALSA organization, has (1) carried on a program of 
litigation, including defense of the politically unpopular and 
affirmative suits on community issues; (2) monitored govern­
mental activity that affects the black community, including



2

judicial appointments, and the work of the legislative, execu­
tive, judicial and administrative branches of government; and 
(3) served the black bar through lawyer referral, job place­
ment, continuing legal education programs, defense of advo­
cates facing judicial and bar sanctions, and watchdog activity 
on law school admissions and curriculum.

The latter activity is of crucial importance. Despite the 
progress made as a result of law school programs such as that 
under attack here, the number of black and other minority- 
group lawyers remains seriously short of the need. The legal 
representation available to most black people remains either 
non-existent or inadequate.

For example, NCBL attorneys have been involved in the 
cases of black activist individuals and groups who, despite 
their racially-connected difficulties, were deemed ineligible for 
legal assistance by the nationally-recognized civil rights organi­
zations. Offering them an alternative to “radical” lawyers, 
NCBL has provided technically sound, sympathetic repre­
sentation to, inter alia, Angela Davis, Martin Sostre, H. Rap 
Brown, the Cornell Students, the Republic of New Africa, 
and the Attica Inmates.

Minority-group lawyers have a unique role to play not 
merely in representing activists, but in implementing the civil 
rights statutes and decisions gained during the past genera­
tion. The nation’s law schools, after much thought and 
experimentation, have evolved sound programs designed to 
identify and train minority lawyers qualified to perform these 
tasks. NCBL joins the many groups who urge this Court that 
these programs are vitally necessary, educationally appro­
priate, and constitutionally sound.

Consent to Filing

This Amicus Curiae brief is filed with the written consent 
of counsel for the parties in this proceeding.



3

Opinions Below

The opinion of the trial court, Superior Court of the State 
of Washington, County of King, is not reported. The opinion 
of the Supreme Court of Washington is reported in 82 Wn. 
2d 11, 507 P. 2d 1169.

Question Presented

Whether a state law school’s admissions policy that takes 
cognizance of race to insure fair consideration of minority 
group applicants and remedy their past exclusion from the 
legal profession violates the Constitution where such policy is 
voluntarily adopted rather than judicially ordered to correct 
proven discriminatory practices.

Statement of the Case

Petitioner DeFunis is white. He sought and failed to gain 
admission to the respondent law school in both 1970 and 
1971 (St. 13, 22). In the wake of his second rejection, he 
filed suit in state court alleging that the school’s admissions 
policies discriminated against him by granting admission to 
veterans, nonresidents and members of disadvantaged minor­
ity groups, many of whom he alleged presented credentials 
and qualifications inferior to his own (App. 12-15).

The trial court, despite voluminous and uncontroverted 
testimony that the admissions procedure utilized by the 
respondent law school contained both quantifiable and non- 
quantifiable factors, concluded that entitlement to admission 
was equatable with mechanical credentials, i.e. , a numerical 
predictor of first-year performance obtained by a formula 
utilizing a portion of an applicant’s undergraduate grades and 
the score obtained on a nationally-standardized Law School 
Admissions Test (LSAT). Interpreting Brown v. Board o f  
Education, 347 U.S. 483 (1954), as a bar to any considera­
tion of race, the lower court held that the admission of



4

minority students with lower prediction averages violated 
petitioner DeFunis’s rights under the equal protection clause 
of the Fourteenth Amendment. The admission of veterans 
and non-residents, most of whom were white, and many of 
whom held prediction averages lower than petitioner’s was, 
the lower court found, not based on race, and thus was 
“quite proper” (App. 57).

The respondent law school selected its 1971 first-year class, 
limited to 150 students, from a record-high total of 1,601 
applicants (St. 334-35), at least half of whom could probably 
do “good work at the University of Washington.” (St. 155). 
Balancing grades and test scores with evidence of “ability to 
make significant contributions to law school classes and to 
the community at large” (Ex. 45), the Admissions Committee 
sought to select a diverse range of talented male and female 
students from a variety of geographical, academic, social-class 
and racial backgrounds (St. 31, 218, 360-61).

The committee admitted most (St. 340) but not all 
applicants with a combined LSAT and grade-point prediction 
average above 77 (St. 343, 406), and rejected most but not 
all applicants with scores below 74.5 (St. 341-42). Applicants 
with averages between these two figures, including petitioner, 
were assumed capable of performing law school work, and 
were classified according to an evaluation of their transcripts 
and a review of non-numerical evidence of potential in letters 
of recommendation, the applicant’s statement and record of 
achievement (St. 338-39). All minority applicants were simi­
larly reviewed (St. 341-42, 399). Forty-four minority appli­
cants were admitted, 18 of whom subsequently enrolled 
(App. 50). Six of those admitted had higher prediction 
averages than DeFunis (App. 52). Thirty-six had lower 
averages than did petitioner (App. 50), but so did 38 white 
admittees, including 22 returning from the military, and 16



5

deemed worthy of invitations based on other information in 
their files (Ex. 44). Of the 311 students admitted, 224 had 
higher prediction averages than petitioner (St. 366-67).

University of Washington President Odegaard testified that 
the special attention given minority-group applicants by the 
Admissions Committee accorded with a University-wide 
policy (St. 108-09, 416) adopted in 1963 when school 
officials realized that an “open door” at the point of entry to 
the University was not enough, in view of the cultural 
conditions and the separation of minority students from 
conventional backgrounds, to alter the virtually all-white 
composition of the University’s student body (Tr. 223-24).

The President (St. 241-43), as well as law school officials 
(St. 163-64), consistently denied that giving increased weight 
to evidence obtained from the background of minority appli­
cants with lower grade and test score credentials to ascertain 
motivation and the capacity to overcome previous dis­
advantages (St. 242) constituted a lowering of standards or 
qualifications. They pointed out that greater reliance could be 
placed on other criteria in evaluating minority applicants. For 
example, successful completion of the pre-law program spon­
sored by the Council on Legal Education Opportunity 
(CLEO) serves as a reliable predictor of law school perfor­
mance (St. 90, 121-25).

University of Texas Law School Professor Millard Ruud, a 
consultant on legal education to the American Bar Associa­
tion (St. 119-20), explained that the LSAT was “exceedingly 
important” as a predictor of law school performance, but he 
warned that it is not a “precise measure” like “an apothecary 
scale,” and “no substitute for human judgment and evalua­
tion.” (St. 128). With minority students, he testified “that 
there is a greater need for exercise of judgment of looking at,



6

examining the transcript, examining all other data . . . (St. 
129). An LSAT official supported Professor Ruud’s state­
ments, characterizing tire LSAT as an interpretive rather than 
a precise predictive tool (St. 184), that alone will not provide 
an accurate indication of law school potential (St. 197-98).

Respondents uniformly maintained that they sought, not a 
racial quota (St. 353, 420), but a “reasonable representation” 
of minority-group students in the 1971 class (St. 416, 
426-27). They asserted their aim was not to discriminate 
against petitioner DeFunis, but to further the University’s 
goal of assisting historically suppressed and excluded minor­
ities into the mainstream of society (St. 416), and improve 
the educational environment of the law school (St. 418). The 
special procedures given minority applications, adopted after 
the University’s “open door” policy failed to produce results, 
were justified by President Odegaard because color-blind 
admissions function “to deprive segments of American society 
from opportunities that other segments of society have and 
that something more than a sanitized mechanical system is 
required to solve this problem in finding the true potential of 
individuals.” (St. 243).

A majority of the Supreme Court of Washington concluded 
that the respondents’ consideration of race in admitting 
students was necessary to the accomplishment of a compel­
ling state interest.

Summary of Argument

Legislative and judicial declarations of racial equality do 
not automatically eradicate conditions and remedy depriva­
tions that led to their promulgation. Meaningful implementa­
tion requires adoption, usually under a specific legal mandate, 
of color-conscious corrective policies designed to provide 
those excluded by race with the opportunity to compete on 
an equal basis for the places from which they were excluded.



7

But a state law school, cognizant of the historic exclusion 
of minority groups from he legal profession, may voluntarily 
adopt a modest affirmative action admissions program rea­
sonably intended to ameliorate past exclusionary patterns 
without violating the rights of non-minority applicants whose 
chances for admission may be lessened by such programs.

ARGUMENT

The respondent law school’s minority-admissions policy is a 
constitutionally appropriate effort to remedy the effects of 
long-standing racial discrimination in the legal profession.

The National Conference of Black Lawyers, along with 
black people generally, fervently hope that a time will come 
when all affirmative action admissions policies can, by the 
application of equal protection standards carefully developed 
by this Court, be held unconstitutional.

The central purpose of the Fourteenth Amendment was to 
eliminate official racial discrimination, and to realize that 
purpose, this Court has scrutinized with great care state- 
imposed racial classifications, deeming them “constitutionally 
suspect,” . . .  and subject to the “most rigid scrutiny” . . . 
McLaughlin v. Florida, 379 U.S. 184, 192 (1964). it is not 
clear that the Court intended to apply this standard to efforts 
clearly intended to redress racially discriminatory conditions 
as well as to those laws that subordinated blacks and other 
minorities on the basis of race. In any event, amicus curiae 
hope a time will come when black law school applicants will 
not have experienced racial discrimination in the form of, 
inter alia, inferior public schools and racially limited employ­
ment and housing opportunities. They will have overcome 
societal handicaps sufficiently to present grades and test 
scores in ranges indistinguishable from those offered by 
whites. The percentage of black law students in the schools 
and lawyers in the profession will then approximate the 
percentage of their white counterparts. At that time, blacks



will no longer need an affirmative action program, and its 
adoption by a law school might well be found unconstitu­
tional.

Unfortunately, the minority applicants who applied for 
admission to respondents’ law school in 1971 were not born 
in a racism-free society. A century after enactment of the 
Fourteenth Amendment, and a generation after Brown v. 
Board o f Education, 347 U.S. 483 (1954), the transition 
from the status of slaves to the equality of opportunity 
enjoyed by white citizens is still underway. To assume, as the 
trial court did, that this Court’s decisions enunciating the 
rights of blacks to racial equality requires no compensatory 
remediaton confuses signposts to a goal with the goal itself.

I. Some consideration of race is necessary to remedy disad­
vantages imposed because of race.

Resistance to desegregation plans, including charges that 
such plans discriminate against whites, have marked virtually 
every step taken to secure equality of opportunity to racial 
minorities. Courts have heard and generally rejected such 
charges, recognizing with one legal scholar “that we can have 
a color-blind society in the long run only if we refuse to be 
color-blind in the short run.” B. BITTKER, THE CASE FOR 
BLACK REPARATIONS 120 (1973).

The facile doctrine that “The Constitution . . . does not 
require integration. It merely forbids discrimination.” Briggs 
v. Elliott, 132 F. Supp. 776 (E.D.S.C. 1955), has been 
rejected in school desegregation cases. Green v. County 
School Board o f New Kent County, 391 U.S. 430 (1968); 
United States v. Montgomery County Board o f Education, 
395 U.S. 225 (1969); Swann v. Chariotte-Mecklenburg Board 
o f Education, 402 U.S. 1 (1971). The use of culturally biased 
standardized tests and unvalidated employment qualifications,



9

despite their superficial appearance of fairness, have been 
characterized as “built-in headwinds” for minority groups in 
Griggs v. Duke Power Co., 401 U.S. 424 (1971). Voting 
requirements have been struck down when their effect was to 
burden minorities handicapped by the effects of prior state- 
supported discrimination. Gaston County v. United States, 
395 U.S. 285 (1969).

In each of these major decisions, the standard of effecting 
remedy is keyed to recognition of race, and lower courts, 
relying on these standards, have approved or ordered racial 
classifications to avoid or eliminate racial inequality. “Where 
it is drawn for the purpose of achieving equality it will be 
allowed, and to the extent it is necessary to avoid unequal 
treatment by race, it will be required.” Norwalk CORE v. 
Norwalk Redevelopment Agency, 395 F. 2d 920, 931-32 (2d 
Cir. 1968). See also, United States v. Jefferson County Board 
o f Education, 372 F. 2d 836, 876-77 (5th Cir. 1966). Racial 
classifications, including racial percentages and quotas have 
been approved to correct racial discrimination in literally 
hundreds of civil rights cases. Note, Race Quotas, 8 HARV. 
CIV. RIGHTS-CIV. LIB. L. REV. 128 (1973).

In the area of employment discrimination, Carter v. Gal­
lagher, 452 F. 2d 315 (8th Cir. 1971), is one of a series of 
cases requiring police and fire departments to hire one 
qualified minority person for every three whites until a 
certain percentage of minority persons has been hired, even if 
more qualified non-minority candidates must be bypassed. 
And in the “hometown plan” cases, Contractors Association 
o f Eastern Pennsyvlania v. Secretary o f Labor, 442 F. 2d 159 
(3d Cir. 1971), courts have required builders and construction 
unions to meet pre-set levels on minority hiring and training.



10

In school desegregation cases courts have followed the 
directions in Swann, supra, regarding racial percentages as 
tools to facilitate elimination of prior policies that discrim­
inated on the basis of race. Indeed, state statutes attempting 
to bar assignment of students on a racial basis have been 
declared unconstitutional. North Carolina State Board o f 
Education v. Swann, 402 U.S. 43 (1971); Zee v. Nyquist, 318 
F. Supp. 710 (W.D. N.Y. 1970), a ff’d, 402 U.S. 935 (1971).

II. A judicial finding of racial discrimination is not a condi­
tion precedent to adoption of a valid minority admissions 
program.

In most school cases, proof that discrimination has occur­
red iis presented, but the authority to order affirmative relief 
is not conditioned on judicial findings of responsibility for 
the racial deprivation, but on the presence of the deprivation 
itself. It is on this basis that courts have upheld voluntary 
actions by school boards intended to correct racial imbalance 
against challenges by white parents and teachers. Offermann 
v. Nitkowski, 378 F. 2d 22 (2d Cir. 1967); Porcelli v. Titus, 
431 F. 2d 1254 (3d Cir. 1970), and see several additional 
cases discussed in Tometz v. Board o f Education, Waukegan 
City, 39 111. 2d 593, 237 N.E. 2d 498 (1968). Even courts 
that refused to order school desegregation without proof that 
the school board was responsible for the racially-isolated 
schools, suggested that the Constitution permitted voluntary 
desegregation plans. Deal v. Cincinnati Board o f Education, 
369 F. 2d 55, 61 (6th Cir. 1966); Springfield School Comm, 
v. Barksdale, 348 F. 2d 261, 266 (1st Cir. 1965).

Often, the deprivation intended to be eased by a racial 
classification is societal in scope, not specific or attributable 
to a single law or policy. The several laws and decisions 
concerning American Indians are an example. See e.g., Sim-



11

mom v. Eagle Seelatsee, 244 F. Supp. 808 (E.D. Wash. 
1965), a ff’d per curiam, 384 U.S. 209 (1966), upholding a 
federal statute’s racial classification which limited the rights 
of inheritance to the Yakima Indian allotments to descen- 
dents of “one-fourth or more blood” of the Yakima tribe. Cf. 
Mancari v. Morton, 359 F. Supp. 585 (D. N.Mex. 1973), 
where the court rules that a federal employment statute 
granting a perference to Indians must give way to the Equal 
Employment Opportunity Act of 1972, on a record reflecting 
the adverse effect on non-Indians, and no evidence to show 
any national-public purpose to be served by the preference 
statute.

Consider also TV. 9, Inc. v. F.C.C., _ F. 2d __, 42
U.S.L.W. 2245 (Nov. 13, 1973), in which the Ninth Circuit 
held that

“Color blindness in the protection of the rights of 
individuals under the laws does not foreclose considera­
tion of stock ownership by members of a black minority 
where the commission is comparing the qualification of 
applicants for broadcasting rights . . . .  Inconsistency with 
the Constitution is not to be found in a view of our 
developing national life which accords merit to black 
participation among principals of applicants for tele­
vision rights. However elusive the public interest may be 
it has reality. 42 U.S.L.W. at 2246.

III. Respondents’ minority admissions plan is not rendered 
invalid because it alters expectations rooted in societal pat­
terns that perpetuate racial inequality.

In addition to urging the Court not to approve affirmative 
action plans unless they remedy past, specific racially dis­
criminatory actions, amici briefs supporting petitioner



12

DeFunis argue that such plans may impose no new depriva­
tion on other innocent parties such as petitioner. The posi­
tion seeks to resurrect the proposition that it should be 
possible to remedy racial injustices against blacks without 
diluting the privileges and expectations which whites had 
hitherto enjoyed. Wechsler, Toward Neutral Principles o f 
Law, 73 HARV. L. REV. 1, 15, 31-34 (1959). But whether 
intended or not, others did benefit from policies that ex­
cluded minorities. Thus, when corrective action is taken, the 
impact will be felt by those who enjoyed — however inno­
cently — privileges and expectations which belonged to others. 
Local 189, United Papermakers and Paperworkers, AFL-CIO 
v. United States, 416 F. 2d 980 (5th Cir. 1969); Hughes, 
Reparations for Blacks? 43 N.Y.L.J. 1063, 1072 (1968).

To suggest as does petitioner that public school desegrega­
tion plans are distinguishable because, unlike the case at bar, 
no white student is actually excluded from school, demeans 
the sincere, if misguided, concern that motivates white 
parents to oppose these plans in court, and ignores the 
serious consideration courts have given to the resolution of 
the competing interests posed by such litigation. There is 
sacrifice involved in these cases as even the most committed 
integrationist must concede after studying Mr. Justice 
Powell’s concurring and dissenting opinion in Keyes v. School 
District No. 1, Denver, Colo., 413 U.S. 189, 217 (1973). Or 
read Judge Weick’s strong dissent against the busing plan 
approved in Northcross v. Board o f Education o f Memphis, 
466 F. 2d 890, 898 (6th Cir. 1972).

It is not claimed that these unfortunate children, who 
are the victims of induced busing, have committed any 
offense. And we are living in a free society in which one 
of the privileges is the right of association.



13

The average American couple who are raising their 
children, scrape and save money to buy a home in a nice 
residential neighborhood, near a public school. One can 
imagine their frustration when they find their plans have 
been destroyed by the judgment of a federal court.

The elimination of neighborhood schools necessarily 
interferes with the interest in and participation by 
parents in the operation of the schools through parent- 
teachers’ associations, interferes with activities of chil­
dren out of school, and interferes with their privilege of 
association, and it deprives them of walk in schools. It 
can even lower the quality of education. 466 F. 2d at 
898. See also, Anderson v. San Francisco Unified School 
District, 357 F. Supp. 248 (N.D. Cal. 1972).

The Washington Supreme Court is not unaware of the 
dislocations desegregation may cause. In approving a Seattle 
voluntary school desegregation plan, the court found the 
board could use race as a criterion whether the nature of the 
segregation was de jure or de facto, and that busing was 
within the authority of school officials despite awkwardness, 
inconvenience and other burdens. State ex rel. Citizens 
Against Mandatory Bussing v. Brooks, 80 Wash. 2d 121, 492 
P. 2d 536 (1972).

Sacrifice incurred during the process of remedying racist 
conditions is not limited to whites. The loss suffered by black 
children during the long years required to give real meaning 
to Brown I, under the “all deliberate speed” standard of 
Brown II, is incalculable. Nor have the burdens of implemen­
tation been uniracial. Black students have lost community 
schools, Allen v. Asheville City Board o f Education, 434 F. 
2d 902 (4th Cir. 1970)■, Norwalk CORE v. Norwalk Board o f 
Education, 423 F. 2d 121 (2d Cir. 1970), and black teachers



14

have lost their jobs, see amicus curiae brief for the National 
Educational Association, United States v. Georgia, No. 30, 
388 (5th Cir. 1971) at 920-21. Some courts have gone to 
shocking lengths to further integration even at the expense of 
prior commitments to minority groups. Thus, in Otero v.
New York City Housing Authority, __ F. 2d __ , 42
U.S.L.W. 2185 (Oct. 9, 1973), the Second Circuit held that 
the Authority could refuse to rent new housing to displaced 
minority-group residents where such rentals would create a 
“pocket ghetto” and violate its affirmative duty to integrate 
public housing.

The dislocations of desegregation programs suffered by 
blacks and whites are an unfortunate concommittant of social 
change. They are not equatable with nor do they herald a 
return to the restrictive quotas imposed on Jewish students 
by some colleges 50 years ago. Contrary arguments in the 
amicus brief supporting petitioner’s Jurisdictional Statement 
Filed by the Anti-Defamation League of B’nai B’rith at 24, 
reflect far less faith in this society’s ability to equitably solve 
its racial problems than has been exhibited by those blacks 
and other minorities who, despite all, are still seeking oppor­
tunities for success and achievement now enjoyed by previ­
ously victimized religious and ethnic groups in this country. 
The fears that moderate plans of racial remediation will 
somehow escalate to levels that threaten legitimate interests 
because they expressly use race and not some disingenuous 
synonym like “cultural disadvantage,” are unwarranted, given 
the moderate character of respondents’ plan, which at 1971 
enrollment levels will require many decades before the dis­
parities in the number of minority lawyers in Washington 
state are substantially reduced.

Moreover, the voluntarily-adopted policy of respondents 
under review here is no less reasonable, appropriate and 
immune to charges of “reverse discrimination” or “racial



15

quota” than were the school plans set forth above. Despite 
the efforts by petitioner’s counsel at trial, the Record shows 
that law school personnel followed the dictates of their 
experience and the instructions from LSAT officials, and 
considered the mechanical credentials, grades and LSAT 
scores, as important measures in determining qualifications, 
and not as the sole criteria for selection.1 There were simply

1 A law school would be, at least, remiss were it to rely heavily on 
standardized tests in gauging minority applicants’ qualifications in view 
of the past use of tests in civil rights cases. Guinn v. United States, 238 
U.S. 347 (1915); Schnell v. Davis, 336 U.S. 933 (1949); Alabama v. 
United States, 371 U.S. 37 (1962); Louisiana v. United States, 380 U.S. 
145 (1965); Gaston County v. United States, 395 U.S. 285 (1969); 
Griggs v. Duke Power Co., 401 U.S. 424 (1971); Baker v. Columbus 
Municipal Separate School District, 462 F. 2d 1112 (5th Cir. 1972); 
Chance v. Board of Examiners, 458 F. 2d 1167 (2d Cir. 1972).

Validation studies thus far undertaken to measure the accuracy of 
the LSAT for minority students indicate that it has value as a predictor, 
Schrader, Pitcher, Predicting Law School Grades for Black American 
Law Students, Law School Admission Council (Mar. 1973), but critics 
point out that such tests cannot measure attitude, motivation, ability to 
empathize, and other qualities needed in practice. Ramsey, Law School 
Admissions: Science, Art or Hunch? 12 J. LEGAL ED. 503, 517 
(1960).

At best, they predict first year grades, not law school performance 
or professional competence. There is even basis to fear that the 
accuracy of first year predictions may be attributable in part to a 
self-fulfilling prophecy effect on the student and his teachers. R. 
ROSENTHAL, L. JACOBSON, PYGMALION IN THE CLASSROOM 
(1968); Kagan, The IQ Puzzle: What Are We Measuring? No. 14 
INEQUALITY IN EDUCATION, 5 (Jul. 1973).

To the extent that standardized test scores are “culturally biased” in 
favor of white, middle class examinees, Hobson v. Hansen, 269 F. Supp. 
401, 476-88 (D. D.C. 1967), over-reliance on LSAT scores would 
present barriers to minority applicants quite similar to the “alumni 
character recommendations” struck down in the college desegregation 
cases. Meredith v. Fair, 305 F. 2d 343, 351-354 (5th Cir. 1962); Hunt



16

too many white applicants admitted with lower mechanical 
scores than petitioner and too many whites who were denied 
despite higher scores to support his position that his rights 
were violated because of the admission of minority students 
with “lower qualifications.”

The selection process is not a scientifically precise one, 
relying of necessity in some degree on intuition rather than 
engineering, but it is sufficiently within the standards for 
administrative agency action set in cases like Citizens to 
Presence Overton Park v. Volpe, 401 U.S. 402 (1971), to earn 
judicial respect for its judgment and the reasonableness of its 
action, especially in an educational policy question. San 
Antonio Independent School District v. Rodriquez, 93 S. Ct. 
1278, 1301-02 (1973); Dandridge r. Williams, 397 U.S. 471 
(1970). See, Anderson, The Admissions Process in Litigation, 
15 ARIZ. L. REV. 81 (1973).

Here, the respondents’ affirmative action policy is correct 
as well as reasonable. While several of the minority applicants 
presented comparatively low mechanical credentials, they had 
completed the CLEO program or had other experiences or 
characteristics justifying a decision that they could perform 
law school work and contribute to their classes while in 
school, and to their communities after graduation. In mea­
suring professional school potential of minority applicants, it 
is most appropriate to consider the disadvantages and handi­
caps that in varying degrees each of them, regardless of their 
socio-economic status, has had to overcome. These societal 
obstacles have been identified by social scientists, see, e.g. J. 
KOVEL, WHITE RACISM: A PSYCHOHISTORY (1970); A. 
KARDINER AND L. OVESEY, THE MARK OF OPPRES-
v. Arnold, 172 F. Supp. 847 (N.D. Ga. 1959). Cf. Local 53, Intern. 
Assoc, of Heat and Frost Insulators, and Asbestos Workers v. Vogler, 
407 F. 2d 1047 (5th Cir. 1969).



17

SION (1962); W. GRIER AND P. COBBS, BLACK RAGE 
(1968), and recognized by this Court. Brown v. Board o f 
Education, supra.

The reasonableness of respondents’ minority admissions 
program is not weakened by suggestions that it is patronizing 
to minorities. Indeed, such a characterization might more 
readily fit the respondents’ refusal to adopt such a program 
since such refusal would imply that the absence of minority 
law students was due to shortcomings generic to the group 
rather than the deprivations of opportunity unfairly placed 
on them by society.

Minority students are not stigmatized by respondents’ 
admission policies, although the adjustment difficulties may 
exceed those of their white classmates. Bell, Black Students 
in White Law Schools: The Ordeal and the Opportunity, 
1970 TOLEDO L. REV. 539. But the Constitution does not 
guarantee, nor do minority students seek, a “free ride” 
through law school. An opportunity for admission based on a 
fair range of prediction criteria is all they seek, and con­
sidering their past exclusion from the legal profession, the 
respondents’ moderate program is, at least, constitutionally 
appropriate.

The Washington Supreme Court found the factors justi­
fying respondents’ minority admissions program constituted a 
compelling state interest. This characterization should not be 
disturbed even if the Court finds that the program is not 
required by federal law. Associated General Contractors o f
Massachusetts, Inc. v. Altshuler, __ F. 2d __ ,4 2  U.S.L.W.
2320 (Dec. 25, 1973).

IV. The historic exclusion of racial minorities from the legal 
profession justified respondents’ affirmative efforts to attract 
qualified minority applicants.



18

The Constitutional appropriateness of the respondent law 
school’s minority admission policies need not be assumed. 
The dearth of black lawyers which respondent officials hope 
their admissions policies will help to alleviate, did not occur 
by chance. It is directly related to a pattern of systematic 
exclusion of blacks from the legal profession that dates back 
to Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857). 
The finding in that decision that no blacks were citizens, 
whether slave or not, served as a barrier to blacks being 
admitted to practice, since virtually all the states required 
citizenship as a qualifying condition for admission to their 
bars.2 By the Civil War in 1860, there were 4,441,830 blacks 
in the country, only 488,070 (11 percent) of whom were 
free,3 but probably no more than eight black lawyers.4

The end of the Reconstruction period also marked the 
decline of the few black lawyers who had made some

2 Brown, The Genesis o f  the Negro Lawyer in New England, 22 THE 
NEGRO HIST. BULL. 147, 148 (1958). Brown advises that Macon B. 
Allen, the nation’s first black attorney, was denied admission on motion 
under Maine law which rendered any citizen eligible for admission who 
produced a certificate of good moral character. Allen was rejected on 
the ground that he was not a citizen. He was subsequently admitted in 
1844 after satisfactory examination by a committee of the Bar.

3 P. BERGMAN, THE CHRONOLOGICAL HISTORY OF THE 
NEGRO IN AMERICA, 221 (1969).

4 See Leonard, The Development o f the Black Bar, 407 THE 
ANNALS, .134, 136 (May, 1973), and Brown, supra, note 2, Part I, 
147-51, and Part II, at 171-77. Five black lawyers, Macon Allen, Robert 
Morris, Aaron Bradley, Edwin Walker, and John S. Rock, practiced in 
Massachusetts before the Civil War. John Mercer Langston became a 
member of the Ohio Bar in the 1850s, Garrison Draper joined the 
Maryland Bar in 1857, and Jonathan J. Wright was admitted to the 
Pennsylvania bar about this time.



19

advances in practice and politics.5 As late as 1940, when the 
black population had grown to 12,866,000,6 there were only 
about 1,063 black judges and lawyers, one professional for 
every 12,103 blacks.7 Those blacks admitted to practice were 
excluded from the American Bar Association until 1943, 
when Judge James S. Watson of New York was elected.8 
Racial prejudice, combined with a continuing lack of educa­
tional and economic resources, served to curtail seriously the 
number of blacks who aspired to join the legal profession and 
limited the range of success and accomplishment for those

5 See Leonard, supra, note 4, at 137.
6 BERGMAN, supra, note 3, at 486.
7 M. DAVIE, NEGROES IN AMERICAN SOCIETY, 116 (1949). 

The great majority of these lawyers were trained in black law schools. 
Howard University opened a law department in 1868. Eleven additional 
schools began in the decades that followed, but only one survived until 
1921. Stevens, Two Cheers For 1870: The American Law School, in 
LAW IN AMERICAN HISTORY, 405, 428, n. 16 (D. Fleming and B. 
Bailyn eds. 1971).

Following this Court’s decisions requiring desegregation of state law 
schools, infra, note 11, several black law schools were initiated. Today, 
in addition to Howard, the predominantly black schools are North 
Carolina Central Law School, in Durham, North Carolina, Southern 
Unviersity Law School in Baton Rouge, Louisiana, and Texas Southern 
University Law School in Houston, Texas.

8 DAVIE, supra, at 118. Three blacks, whose racial identity was not 
known, were admitted into the ABA in 1912. The long exclusion of 
blacks by the ABA led black lawyers to form the National Bar 
Association in 1925. See also, Leonard, supra, note at 140-43.



20

who somehow overcame these multiple handicaps to law 
practice.9

Until recently, white law firms, government, business as 
well as bar associations were closed to black lawyers who, 
with some notable exceptions, operated on the fringe of the 
profession.10 Except for the few predominantly black

9 The court below cited a representative collection of published data 
and studies as evidence of the barriers facing blacks who aspired to a 
legal career. 507 P. 2d at 1182, n. 12. But it is simply not possible to 
gauge how many black youth have been exposed to experiences similar 
to the conversation with his high school teacher reported by Malcolm 
X. It was in the early 1940s in East Lansing, Michigan, and his English 
teacher, Mr. Ostrowski, who had given him good grades and taken an 
interest in him, asked him whether he was thinking about a career. 
Malcolm replied:

‘Well, yes sir, I’ve been thinking I’d like to be a lawyer.’ 
Lansing certainly had no Negro lawyers — or doctors either — in 
those days, to hold up an image I might have aspired to. All I 
really knew for certain was that a lawyer didn’t wash dishes, as I 
was doing.

Mr. Ostrowski looked surprised, I remember, he leaned back in 
his chair and clasped his hands behind his head. He kind of 
half-smiled and said, ‘Malcolm, one of life’s first needs is for you 
to be realistic. Don’t misunderstand me, now. We all here like 
you, you know that. But you’ve got to be realistic about being a 
nigger. A lawyer — that’s no realistic goal for a nigger. You need 
to think about something you can be. You’re good with your 
hands -  making things. Everybody admires your carpentry shop 
work. Why don’t you plan on carpentry? People like you as a 
person — you’d get all kinds of work.’ A. HALEY, THE AUTO­
BIOGRAPHY OF MALCOLM X, 36-37 (1964).

10 Gellhorn, The Law Schools and the Negro, 1968 DUKE L. J. 
1070, n. 13. See also, M. DAVIE, NEGROES IN AMERICAN 
SOCIETY, 115-116 (1949); Shuman, A Black Lawyer’s Study, 16 
HOWARD L. J. 304 (1971); McGee, Black Lawyers and the Struggle 
for Racial Justice in the American Social Order, 20 BUFFALO L. REV.



21

schools, Southern law schools were completely closed to 
blacks until required to admit them by a series of court 
orders handed down over a 20-year period from the 1930s 
through the 1950s.11 But even after the 1954 school desegre­
gation decision, many Southern schools continued to refuse 
black applicants until the late 1960s.12

In the North, law schools were not formally closed to 
blacks, but few were admitted until the initiation of minority 
recruitment and admissions programs in the late 1960s. Due 
m part to these programs, there were 7,601 minority students 
in ABA approved law schools during the 1973-74 school 
year.13 The 4,817 black students exceeds the estimated

423 (1971); Note, Negro Members o f  the Alabama Bar, 21 ALA. L. 
REV. 309 (1969); Carl and Callahan, Negroes and the Law, 17 J. 
LEGAL ED., 250 (1965).

The difficulties black lawyers have faced are pointed up by the 
observation of Judge Robert L. Carter, formerly NAACP General 
Counsel, who observed that the notable civil rights achievements of 
Charles Houston, Thurgood Marshall, William Hastie, Spottswood Rob­
inson and Constance Baker Motley, and other black lawyers tends to 
obscure the fact that few blacks have enjoyed noteworthy success in 
any field of law, including that of civil rights. Bell, Black Students in 
White Law Schools: The Ordeal and the Opportunity, 1970 TOLEDO 
L. REV. 539, 541.

11 Compare the evasive tactics employed in University of Maryland 
v. Murray, 169 Md. 478, 182 A. 590 (1936), with those used 20 years 
later in Florida ex rel. Hawkins v. Board of Control, 350 U.S. 413 
(1956). In the interval, this Court had spoken clearly on the subject of 
segregated law schools in Sweatt v. Painter, 339 U.S. 629 (1950), Sipeul 
v. Bd. of Regents of Univ. of Oklahoma, 332 U.S. 631 (1948), and 
Missouri ex rel. Gaines v. Canada, 305 U.S. 337 (1938). The higher 
education litigation is discussed generally in J. GREENBERG, RACE 
RELATIONS AND AMERICAN LAW, 260-69 (1959).

12 Gellhorn, supra, note 9, at 1070.
13 1973 Survey of Minority Group Students in Legal Education, 

Association of American Law Schools (Dec. 1973).



22

4.000 black practitioners by a sizeable number,14 and 
probably the 2,784 other minority students far exceeds the 
number of lawyers who belong to these groups.15

But expressions of satisfaction over this undoubted prog­
ress are muted by a review of comparable white statistics. 
The 7,601 minority-group students represent only seven per­
cent of the 106,102 students in law schools during the 
1973-74 school year. The estimated 4,000 black lawyers 
represent little more than one percent of the nation’s
300.000 lawyers.

There is a white attorney for every 631 whites in the 
country. While according to the U.S. Census, there were more 
than 22 million blacks in 1970, this averages out to only one 
black attorney for every 5,500 blacks. The figure would 
probably be far worse if other minorities were considered, 
and if the number of minority law graduates not working in 
law-related jobs were excluded.

Available data on minority attorneys in the State of 
Washington reflect the national pattern. In 1970, there were 
4,550 active lawyers in the State. There was a white lawyer 
for every 720 whites in the State, but only 20 black lawyers

14 See Edwards, The New Role for the Black Law Graduate: A 
Reality or an Illusion? 69 MICH. L. REV. 1407, 1432 (1971). Professor 
Edwards’ study of hiring patterns in large mid-western law firms 
revealed that racial restrictions remain quite visible.

Employment concerns are not the only special problems confronting 
minority students. See, Parker and Stebman, Legal Education for 
Blacks, 407 THE ANNALS, 144 (May 1973).

15 Morris, Equal Protection, Affirmative Action and Racial 
Preferences in Law Admissions: DeFunis v. Odegaard, 49 WASH. L, 
REV. 1, 4-5, notes 14-15 (1973).



23

in all (three of these were judges), five Indian lawyers, and 
not one Mexican-American lawyer, despite the 70,734 Mexi­
can-Americans in Washington.16

The minority groups considered in the respondent law 
school’s minority admissions program (blacks, Indians, Mexi- 
can-Americans, and Filipinos) total about 186,890 or 6.2 
percent of the population. Excluding the black judges, there 
are only 22 minority lawyers in the State, or one minority 
lawyer for every 8,495 minority persons.

The use of statistical disparities to illustrate the exclusion 
of minorities from the legal profession is not intended to 
suggest that all minority people want or should be required 
to use lawyers of their particular group. They certainly 
should not be interpreted to diminish the valuable service 
rendered to the cause of racial equality by white attorneys. 
What black people are entitled to in selecting lawyers is a 
choice not arbitrarily limited because of state-sanctioned 
racial exclusion.

The Washington Supreme Court concluded from the avail­
able data that minorities are “grossly underrepresented in the 
law schools -  and consequently in the legal profession -  of 
this state and this nation.” DeFunis v. Odegaard, 82 Wn. 2d 
11, 32-33, 507 P. 2d 1169, 1182 (1973).

Based on the disparities reflected in these statistics, one 
commentator has gone further, suggesting that “While the 
state voluntarily undertook to provide a corrective program 
of law school admission it may actually have been under a 
constitutional duty to have done so.” 17 Certainly a state law

16 Id. at 37-38.
1 7 Id. at 39.



24

school, faced with the significance of statistics such as those 
in this case, is not bound to wait for a court to mandate 
action based on the Constitution before adopting policies that 
will both comply with its words and honor its spirit.

Indeed, it is the adoption of precisely such policies that 
keeps alive the dream that this society may someday outgrow 
the need to protect its minority members against discrimina­
tion based on race, color, or creed.

For all the foregoing reasons, amicus curiae urge this Court 
to affirm the judgment of the Supreme Court of Washington.

Respectfully submitted,

DERRICK A. BELL, JR.
Harvard Law School 
Cambridge, Mass. 02138

Attorney for Amicus Curiae

Of Counsel:
LENNOX S. HINDS 
National Director,

National Conference 
of Black Lawyers 

126 West 119th Street 
New York, N.Y. 10027

HAYWOOD BURNS
University of New York at Buffalo 

School of Law 
Buffalo, N.Y. 14202