DeFunis v. Odegaard Brief Amicus Curiae of the NAACP Legal Defense Fund

    In th e

Buptmw ©mart rtf tlj? llmh'ii §>tatra
October Term, 1973 

No. 73-235

M arco D e F u n is , et al.,
Petitioners,

Y.

C harles O degaard, et al.,
Respondents.

ON WRIT OP CERTIORARI TO THE SUPREME COURT 
OP THE STATE OP WASHINGTON

BRIEF OF THE NAACP LEGAL DEFENSE 
AND EDUCATIONAL FUND, INC.,

AS AMICUS CURIAE

.Jack  G reenberg 
J am es M. N abrit , III 
C harles S te p h e n  R alston  
J effry  A. M in t z  
J o h n n y  J . B utler

10 Columbus Circle
New York, New York 10019

Attorneys for the NAACP Legal Defense 
and Educational Fund, Inc.

Louis II. P ollak  
J o h n  B aker

Of Counsel



TABLE OF CONTENTS

Interest of the Amicus ....................................................  1

A rgu m en t

I. The Minority G-roup Admissions Policies of 
the University of Washington School of Law 
Are Constitutional ...........................    4

II. The Minority Admissions Program Does Not 
Violate Title VI ..................................................  10

C onclusion  .......................................................................................  12

A p p e n d ix .................................................................. -..........................  l a

T able op Cases

Adams v. Richardson, 480 F.2d 1159 (D.C. Cir. 1973) 4n 
Alabama v. United States, 304 F.2d 583, aff’cl, 371 U.S.

37 (1962) ...........     7n

Chance v. Board of Examiners, 458 F.2d 1167 (2nd
Cir. 1972) ....................       5n

Contractor Ass’n of Eastern Pa. v. Secretary of Labor,
442 F.2d 159 (3rd Cir. 1971)........................................  3

Griggs v. Duke Power Company, 401 U.S. 424 (1971) .. 6n

Hernandez v. Texas, 347 U.S. 475 (1954) .................. 5n

Katzenbach v. Morgan, 384 U.S. 641 (1966) ............... . 9n

Lan v. Nichols, ------U.S. ------- , 42 U.S.L. Week 4165
(Jan. 21, 1974) ...............................................................  10

PAGE



XI

Missouri ex rel. Gaines v. Canada, 305 U.S. 337 (1938) In

NAACP v. Button, 371 U.S. 415 (1963)......................2n, 9n

Oregon v. Mitchell, 400 U.S. 112 (1970) ...................... 7n

Bailway Mail Ass’n v. Corsi, 326 U.S. 88 (1945) ....... 9

Sanders v. Bussell, 401 F.2d 241 (5th Cir. 1968).......2n, 9n
Sobol v. Perez, 289 F.Supp. 392 (E.D. La. 1968) ........... 9n
Swann v. Charlotte-Mecklenburg Bd. of Ed., 402 U.S.

1 (1971) ........................ ..... ........ ................................... 8
Sweatt v. Painter, 339 U.S. 629 (1950) .......................... In

Trafficante v. Metropolitan Life Ins. Co., 409 U.S. 205
(1973) ................... ............................................... .........  10n

Turner v. Fouche, 396 U.S. 346 (1970) ......................  7n

United States v. Montgomery County Bd. of Ed., 395 
U.S. 225 (1969) ............... ......................................... . 3

Welsh v. United States, 398 U.S. 333 (1970) ............... 9n

S t a t u t e s :

20 U.S.C. §1619(9) (A) .............. ....................... .............. 5n
42 U.S.C. §2000(d) ........... .............................................  10n
45 C.F.R. 80.3 (1973) .......................................................  10
Civil Rights Act of 1964, §601 .......... ............................ 10

Oth er  A u t h o r it ie s :

Carl, The Shortage of Negro Lawyers: Pluralistic 
Legal Education and Legal Services for the Poor,
20 J. Legal Ed. 21 (1967) ............ .............................. 2n

PAGE



Ill

Gellhorn, The Law School and the Negro, 1968 Duke
PAGE

L.J. 1069 ........................................ _____............. ..........__. 2n

Leonard, The Development of the Black Bar, 407 T he  
A n n als  134 (1973) ............... ................____................................ In

McGee, Black Lawyers and the Struggle for Racial 
Justice in the American Social Order, 20 Buffalo L.
Lev. 423 (1971) ............. ................. ......... ............... 2n

Parker & Stebman, Legal Education for Blacks, 407 
T h e  A n n als  144 (1973) ................. .................... ................ 2n



I n  th e

(tart nf tlj? Itritefc States
October Term, 1973 

No. 73-235

M arco D e F u n is , et al.,

v.
Petitioners,

C harles Odegaard, et al.,
Respondents.

o n  w rit  o r  certiorari to th e  supreme court
OF THE STATE OF WASHINGTON

BRIEF OF THE NAACP LEGAL DEFENSE 
AND EDUCATIONAL FUND, INC.,

AS AMICUS CURIAE

Interest o f the Amicus1

Amicus, NAACP Legal Defense and Educational Fund, 
Inc., is interested in the present case for several reasons. 
First, the black community has been grossly underrepre­
sented in terms of the number of black attorneys available. 
To a large extent, this was due to deliberate discrimina­
tion.2 As recently as 1968, only about one percent of the

1 Letters of consent from counsel for the petitioners and the 
respondents have been filed with the Clerk of the Court.

2 See, e.g., Missouri ex rel Gaines v. Canada, 305 U.S. 337 (1938) ; 
Sweatt v. Painter, 339 U.S. 629 (1950); and see Leonard, The 
Development of the Black Bar, 407 The A nnals 134, 137-39 
(1973).



2

total number of attorneys in the United States were black, 
a figure probably not substantially higher than in 1900.3 
Recent figures indicate that slightly over seven percent of 
total law school enrollment in the last year is minority 
students, including blacks, Chicanos, American Indians, 
Puerto Ricans, etc.4 5

In the Legal Defense Fund’s experience the need for 
black (and other minority group) lawyers to serve their 
own community is clear. Although lawyers of all races 
have made many contributions to the cause of equal justice, 
it is essential that there be black lawyers who live and 
practice law day to day and year after year as integral 
parts of their communities.6 In the main and over the 
long run, they are most disposed to and capable of per­
forming services for the minorities of which they are a 
part.6 Lawyers are critical to political activity, building 
businesses, and social development, to say nothing of legal 
representation in resolving public and private differences. 
Without an adequate number of lawyers, minority prog­
ress in all these areas will be stunted.

In order to help increase the number of black, lawyers, 
the Legal Defense Fund administers, through its subsid­
iary, the Earl Warren Legal Training Program, Inc., pro­
grams to provide scholarships for black law students and

3 Gellhorn, The Law Schools and the Negro, 1968 Duke L.J. 1069.
4 In 1972-73, there were 4,423 black students, or 4.3% of the 

total enrollment. This was up from only 1,254 in 1968-69. Parker 
& Stebman, Legal Education for Blacks, 407 The A nnals 144, 147 
(1973).

5 See Carl, The Shortage of Negro Lawyers: Pluralistic Legal 
Education and Legal Services for the Poor, 20 J. Legal Bd. 21 
(1967); McGee, Black Lawyers and the Struggle for Racial Justice 
in the American Social Order, 20 Buffalo L. Rev. 423 (1971).

6 See, NAACP  v. Button, 371 U.S. 415 (1963); Sanders v. Rus­
sell, 401 F.2d 241 15th Cir. 1968).



3

assistance to black law graduates seeking to set up practice 
in communities without sufficient legal representation. 
Obviously, for the success of these programs there must 
be significant numbers of black law students. Over the 
past few years, which coincide with institution of affirma­
tive admission programs like that at the University of 
Washington Law School, the Fund has had a substantial 
increase in the number of applications for both programs 
from highly qualified black students.7

The second interest of the Legal Defense Fund in this 
case arises from the possible implications of this case for 
a wide range of litigation. A reversal not only could under­
mine voluntary programs to achieve the reality (and not 
merely the appearance) of equal opportunity, but also 
could cut back sharply on the remedial powers of courts 
(see, e.g., United States v. Montgomery County Board of 
Education, 395 U.S. 225 (1969)) and agencies (see, e.g., 
Contractor Ass’n of Eastern Pa. v. Secretary of Labor, 442 
F.2d 159 (3rd Cir. 1971) to require affirmative action.8

7 Between 1967 and 1973 over two hundred and thirty black 
students who were recipients of scholarship assistance from the 
Fund graduated from law schools. These recipients and graduates 
have matriculated at forty-five of the major law schools in the 
East, South and Mid-West, and at both national and regional law 
schools. At present more than three hundred and sixty are en­
rolled in the program.

During the same span of years the Legal Defense Fund has 
trained or has in training in its post-graduate fellowship program 
over eighty young lawyers for civil rights practice. They have 
distinguished themselves professionally, in politics, business and 
civic affairs. In each of the last two years the Fund has had 
almost two hundred applicants for twelve positions. Comparable 
ratios prevail with respect to applicants for scholarships.

8 The question which arises in this case, in a Northern state, 
implicates also the South. In the South, where higher education 
remained segregated by law in many places until well after this 
Court’s decision in Brown, effective steps to dismantle the dual 
system in many colleges and universities are just now commencing.



4

ARGUMENT

I.
The Minority Group Admissions Policies o f the Uni­

versity o f Washington School o f Law Are Constitutional.

It is important to focus precisely on what the University 
of Washington Law School was doing, and what peti­
tioner Marco De Funis, Jr., may complain about. The 
School was faced with the problem of deciding which of a 
large group of qualified9 applicants it should admit. These 
decisions were made by a complex process; applicants 
could not, as petitioner De Funis urges, be chosen by the 
rigid application of mathematical formulae. A small group 
of students were more or less automatically admitted if 
they had a high Predicted First-Year Average (PFYA).

These steps were occasioned by Adams v. Richardson, 480 F.2d 
1159 (D.C. Cir. 1973), which the undersigned amicus sponsored.
_ It would be a misfortune were this case to give rise to any prin­

ciples which might hinder the fullest desegregation process in 
higher education in Southern and border states. Recently, in its 
responses to the previously submitted desegregation plans, which 
it found inadequate, the Department of Health, Education, and 
Welfare made clear that affirmative remedial measures must be 
undertaken to achieve black access to public higher education; 
these measures will have to be complex and far-reaching to achieve 
desegregation in fact.

9 Both petitioners and certain of their supporting amici attempt 
to raise the specter of law schools admitting large numbers of 
unqualified black and other minority students with the result of 
excluding qualified whites and eventually foisting unqualified attor­
neys on the black community. There is no basis in the record to 
substantiate such a contention with regard to the University of 
Washington. All the testimony clearly indicates that in every 
instance persons were admitted who were reasonably believed to 
be qualified and capable of succeeding in law school and as lawyers.



5

Everyone else, inclnding De Funis and most of the minority 
group students, went through further processing.10

De Funis’ complaint arises because in that processing 
minority group students were handled separately from 
majority group students.11 All applications from minority 
group members were given to two particular admissions 
committee members who compared the applications against 
each other. Majority group applications similarly were 
compared with each other. The most promising in each 
group were chosen and the two lists aggregated.

As to both groups much more than PFTA was con­
sidered, as indeed was proper. After all, the scale only 
purported to predict what grades a student would make 
in his first year of law school; it did not even predict his 
performance throughout law school or on a bar examina­
tion. It manifestly could not measure criteria at least as 
legitimate as the grades an applicant would receive in law 
school, viz., his long term success and contributions to the 
profession and the community. These more difficult predic­
tions were made on the basis of not only PFTA, but also 
by weighing factors such as extracurricular activities, 
interest in community affairs, letters of recommendation, 
and the type of undergraduate curriculum pursued. As a 
result, a number of majority group applicants with lower

10 Thus, this case does not involve anything analogous to the 
“merit system,” or an attack on it. A  PFYA score cannot be 
equated with a score on a Civil Service examination, a typing test, 
or a driving test. Certainly, regardless of whether a strict merit 
system based on tests may be used under certain circumstances 
(see, Chance v. Board of Examiners, 458 F.2d 1167 (2nd Cir. 
1972)), there is no constitutional requirement that it must be.

11 At least one amicus professes difficulty with the concept of 
defining certain persons as members of “minority groups.” This 
has presented no problem, however, either to Congress (see, 20 
U.S.C. § 1619(9) (A ), or to this Court. See, Hernandez v. Texas, 
347 U.S. 475 (1954) .



6

PFYA’s than De Funis were admitted or put on the wait­
ing list ahead of him.12

The question, therefore, is whether the procedure now13 
complained of by De Funis, that minority students and 
majority students were compared only with others in the 
same group, violated his constitutional rights. Simply 
stated, the School recognized that the PFYA is significantly 
less predictive of what it purports to measure for minority 
than for non-minority students, largely because of historic 
educational and social discrimination. This was the expert 
testimony at trial (St. 128-131) and petitioner did not rebut 
it. Just as the number of minority students .admitted to the 
University as a whole had been limited by the application 
of standard criteria, as the President of the University 
testified (St. 222-229), it could be expected that if the same 
weight was given to the PFYA for both groups, it would 
operate as a “built-in headwind” 14 resulting in exclusion of 
minorities from the Law School.

12 This fact is significant, since even if there had been no minority 
admissions program this record does not demonstrate that De 
Funis would have been admitted to law school. He was in the 
lowest one-fourth of the waiting list, with at least fifty-five persons 
ahead of him; thirty-six minority group applicants with PFYA ’s 
lower than De Funis were sent letters of acceptance, and only 
eighteen accepted; even if none had accepted he apparently would 
not have been reached.

13 The original complaint did not challenge his exclusion on 
racial grounds. In addition to the in-state resident issue, the com­
plaint urged, in essence, a denial of due process because others 
had arbitrarily been admitted to the school even though they had 
lesser qualifications than did petitioner (A. 14-15; 17). The ques­
tion of minority students was raised as a matter of defense (over 
the objection of petitioner’s counsel (St. 230-231)) by the Law 
School to explain why some, with lesser paper qualifications than 
De Funis were admitted before he was. Much of the dissenting 
opinion below was an attack on the procedures and standards used 
generally to select among the applicants. Whatever might be the 
merits of a due process attack on the method of administering the 
selection system, one has not been presented here.

14 Griggs v. Duke Power Co., 401 U.S. 424, 432 (1971).



7

The School, therefore, took a course that was not only 
prudent, hut perhaps constitutionally required. If it did 
not institute appropriate differential treatment of minority 
applicants, a combination of a low minority acceptance 
rate,15 and selection by criteria which were known to have 
questionable predictive validity, might lead to litigation by 
members of excluded groups.16

The procedure employed—comparing minority appli­
cants with each other, and picking the most promising from 
that group—avoided the perceived discriminatory effect of 
comparing minority students with majority ones on the 
basis of PFYA. The procedure was not designed to achieve 
an over-all ranking that would absolutely correspond to 
promise as a student and as a lawyer, since it is doubtful 
that the data at hand permitted a pre-law school compari­
son of the ultimate professional promise of the applicants, 
whether minority or majority. Rather, it sought to ensure 
that no applicants were accepted of whom respondents did 
not expect satisfactory achievement.

16 As the Fifth Circuit has cogently said, “ In the problem of 
racial discrimination, statistics often tell much, and Courts listen.” 
Alabama v. United States, 304 F.2d 583, 586, aff’d, 371 IT.S. 37 
(1962). See also, Turner v. Fouche, 396 IJ.S. 346 (1970).

16 De Funis and his amici urge that the Law School should not 
have done anything about the effects of past discrimination because 
neither the "University nor the Law School had any responsibility 
for it. This is an unacceptably insular way of viewing a particu­
larized result of the national problem of racism.

This case involves a national law school, with a policy of admit­
ting a substantial number of students from out of state. Even if 
the State and the institution themselves were totally free of any 
taint of racial discrimination, the admission of some students 
under criteria that operate to exclude others who were victims of 
racial discrimination in other parts of the country could raise 
serious equal protection questions. See, Oregon v. Mitchell, 400 
U.S. 112, 133-34 (1970) (Black, J.) (the effects of racial discrimi­
nation, wherever it occurred, present a national problem that can 
be responded to even with regard to states without a history of 
discrimination).



8

One reason for the differential treatment of minority 
applicants was, of course, to make it possible for a signifi­
cant number to be admitted to Law School. And, just as 
the basis for realizing that there was something wrong 
with rigid selection procedures was the low number of 
minority admissions, so the basis for weighing the effec­
tiveness of the new method was whether the number ad­
mitted reasonably reflected the number of minority persons 
in the community at large. Thus, a goal was aimed for, but 
there was no quota. The distinction between the two is 
clear; a quota is a fixed number or set ratio that must be 
filled and, generally, may not be exceeded. A goal is a 
target to be used as a yardstick for judging the efficacy of 
a program in achieving true equality. See, e.g., Swann v. 
Charlotte-MecMenburg Board of Ed., 402 U.S. 1, 25-26 
(1971).

There was no quota, and at no time were minority ap­
plicants accepted who did not meet the same standard im­
posed on all applicants, minority and non-minority alike, 
vis., the expectation of satisfactory achievement in law 
school and the profession. Indeed, the Law School could 
not, for the purpose of filling a quota, have deliberately 
chosen a minority student with less over-all promise than 
De Funis even if it had wanted to, because the data avail­
able was not sufficiently precise to allow such judgments. 
Thus, it simply cannot be determined, and certainly not 
from this record, that De Funis was kept out of law school 
because of his race in the sense that unqualified minority 
applicants were admitted on the basis of their race.”  17

17 The admission of unqualified minority students in order to 
obtain a fixed number, not the situation presented here, would 
indeed be of. questionable constitutionality if it resulted in the 
exclusion of other qualified applicants.



9

Another aspect of the admissions policies of the Law 
School was its judgment that one factor in determining 
the qualities relevant to the contribution an applicant 
might make to the profession and the community, is whether 
there is a lack of lawyers serving the needs of minorities 
of which the applicant is a member. Certainly, a law 
school, in assessing its obligation to serve the needs of 
society, may decide that it will not use selection criteria 
that prevent minority groups from obtaining legal repre­
sentation essential to the vindication of constitutional 
rights.18

In summary, the University of Washington acted con­
sistently with its Fourteenth Amendment duty to ensure 
that black, Cbicano, and American Indian applicants were 
not in fact denied equal access to lawT school because of 
factors relating directly to their race.19 If the equal pro­
tection clause is ever to have practical meaning, it cannot 
be interpreted to prohibit such a program fo r : “ To use the 
Fourteenth Amendment as a sword against such State 
power would stultify that Amendment.” Railway Mail 
Assoc, v. Corsi, 326 U.S. 88, 98 (1945) (Frankfurter, J., 
concurring).

18 See, NAACP  v. Button, 371 U.S. 415 (1963); Sanders v. Bus­
sell, 401 F.2d 241 (5th Cir. 1968) ; Sobol v. Perez, 289 F.Supp. 
392 (E.D. La. 1968).

19 An analogy can be drawn to the recognized power of Congress 
to adopt broad remedial legislation it feels necessary to ensure the 
effective enforcement of Fourteenth Amendment rights. See, 
Katzenbach v. Morgan, 384 U.S. 641 (1966) ; cf., Welsh v. United 
States, 398 U.S. 333, 371 (1970) (White, J., dissenting).



10

II.

The Minority Admissions Program Does Not Violate 
Title VI.

Finally, a comment should be made concerning the al­
ternative ground advanced by De Funis, that § 601 of the 
Civil Eights Act of 196420 invalidates the method by which 
the Law School selected applicants.21 We urge, to the con­
trary, that Title VI, in conjunction with the implementing 
regulations issued and interpreted by the Department of 
Health, Education, and Welfare, supports the School’s 
actions. Eecently, this Court upheld the power of HEW 
to issue appropriate regulations pursuant to § 601 in 
exercising its authority to dispense funds in aid of educa­
tion. Lau v. Nicholas,------TT.S.------- , 42 U.S.L. Week 4165
(Jan. 21, 1974).22 23

The relevant regulations, found in 45 C.F.E. 80.3 (1973), 
are set out in the margin.28 As noted in Lau, 80.3(b) (2)

20 42 U.S.C. § 2000(d).
21 Respondents have urged that this issue is not properly before 

the Court. However, in the event it is determined that the question 
has been properly raised, amicus wishes to bring to the Court’s 
attention information pertinent to its consideration.

22 Lau adhered to the general rule that deference would be given 
to the judgment of an administrative agency, as reflected in its 
regulations and their interpretation, as to the interpretation of a 
statute it is charged with enforcing. See, Trafficante v. Metropoli­
tan Life Ins. Co.] 409 U.S. 205, 210 (1973).

23 80.3(b) (2) A  recipient, in determining the types of services 
financial aid, or other benefits, or facilities which will be pro­
vided under any such program, or the class of individuals to 
whom, or the situations in which, such services, financial aid, 
other benefits, or facilities will be provided under any such 
program, or the class of individuals to be afforded an oppor­
tunity to participate in any such program, may not, directly 
or through contractual Or other arrangements, utilize criteria 
or methods of administration which have the effect of subject-



11

prohibits the use of criteria or other methods of adminis­
tration that have the effect of cutting persons off from 
programs because of their race. (42 U.S.L. Week at 4167.) 
More explicitly, 80.3(b) (6) (ii) allows a recipient that has 
not been guilty of deliberate discrimination to take af­
firmative action “to overcome the effect of conditions” that 
have limited participation by racial minorities.

This is precisely what the University of Washington 
Law School has done. Well aware of the small number of 
minority students, and with substantial reason to believe 
that this resulted because standardized criteria—doubtful 
predictors of success as students or lawyers—screened 
them out, the school took appropriate “action to overcome 
[these] effects.”

The Department has construed Title VI, and the regula­
tions, to permit precisely the kind of action taken by 
respondents. Thus, it approves of the use of differential 
and “non traditional” criteria for the admission of minority 
students, it recognizes the effect of generalized discrimina­

ing individuals to discrimination because of their race, color, 
or national origin, or have the effect of defeating or substan­
tially impairing accomplishment of the objectives of the pro­
gram as respect individuals of a particular race, color or 
national origin.

* # * * *
(b) (6) (i) In administering programs regarding which the 
recipient has previously discriminated against persons on the 
ground of race, color or national origin the recipient must 
take affirmative action to overcome the effects of prior dis­
crimination.

(ii) Even in the absence of such prior discrimination, a 
recipient may take affirmative action to overcome the effects 
of conditions which resulted in limiting participation by per­
sons of a particular race, color or national origin.



12

tion against minorities as justification, and distinguishes 
between “goals” and “quotas.” 24 *

CONCLUSION

The Legal Defense Fund urges that the foregoing anal­
ysis of the actual constitutional issue presented in this 
case requires that the decision of the Supreme Court of 
Washington be affirmed. Counsel for amicus would be 
remiss in their duty as officers of the Court, however, if 
they did not make known their belief that the proper 
disposition of this case may be to dismiss the writ as im- 
providently granted, since it is an inappropriate one for 
broad constitutional pronouncements concerning the valid­
ity of attempts to secure adequate minority representation. 
First, a decision by this Court one way or the other will 
in no way affect the rights of any of the petitioners, since 
Marco De Funis, Jr., will complete law school in June, 
1974, regardless. Thus, the case is already effectively 
moot.26 Second, it would be far more appropriate to ad­
dress questions such as the validity of quotas, the admis­
sion of unqualified minority students in preference to quali­
fied whites, and the exclusion of a white applicant because 
of the acceptance of minority ones, in a case that actually 
presented those issues, as this one does not.26 Any decision

24 These interpretations are found in letters by or on behalf of 
the Director of the Office of Civil Eights of HEW, written in 
response to inquiries. A  representative letter is set out in an
appendix to this Brief, and we have deposited copies of other 
representative letters in the office of the Clerk.

26 The action was not brought on behalf of any class, and no 
general relief, such as enjoining the future use of the challenged 
procedures, was either sought or granted.

26 It would also be appropriate to wait for a case which properly 
raised in a fully-developed form the question of the applicability 
of Title VI of the Civil Rights Act of 1964 and the implementing 
regulations to these issues.



13

as to those questions here would be premature, because 
the present record simply says little or nothing about 
unforeseeable implications of new doctrine.

Respectfully submitted,

J ack  G reenberg 
J am es M . N abrit , I I I  
C harles S te p h e n  R alston  
J eeery A. M in tz  
J o h n n y  J . B utler

10 Columbus Circle
New York, New York 10019

Attorneys for the NAACP Legal Defense 
and Educational Fund, Inc.

Louis H . P ollak  
J o h n  B aker

Of Counsel



APPENDIX

D epartm e n t  of H ea l t h , E du cation , and  W elfare

September 25, 1972

Honorable Donald C. Brotzman 
House of Representatives 
Washington, D.C. 20515

Dear Mr. Brotzman:
Thank you for your inquiry of August 16 on behalf of Mr. 
Kenneth Co veil of Boulder, Colorado.
Mr. Covell is concerned about students he knows of with 
good grades and good examination scores who were not 
accepted to the University of Colorado’s law and medical 
schools. Mr. Co veil feels that the University rejected these 
students because the Department of Health, Education, and 
Welfare requires institutions of higher education receiv­
ing Federal funds to have a proportional representation of 
minority students in its enrollment.
As you know, the Office for Civil Rights administers Title 
VI of the Civil Rights Act of 1964, which requires that 
recipients of Federal financial assistance offer their bene­
fits and services without regard to race, color, or national 
origin. Under Title VI institutions of higher education must 
recruit, admit and make all course offerings and college- 
supported activities available to students in a nondiscrimi- 
natory manner. However, no quota of minority students 
is required to comply with this law. The University of 
Colorado participates in various Federal financial assis­
tance programs, and, therefore, is subject to the require­
ments of Title VI. In fall 1970 the University reported to

la



2a

Appendix

us that minority enrollment in its medical school was 3.2 
percent. This is the latest data available to us at this time. 
While the University did not file a separate report for its 
law school, we are confident that minority enrollment in 
this school is of the same order of magnitude as that of 
the medical school.
This Office is aware that several institutions of higher edu­
cation receiving Federal financial assistance have estab­
lished programs to increase the number of minority group 
students they enroll. Such programs may include special 
efforts to recruit minority applicants, financial assistance 
and evaluation of applicants’ potential through the use of 
non-traditional criteria. Quite often institution officials 
state a goal for a specified level of minority enrollment. 
In those cases that have come to our attention, goals differ 
from quotas in two main major respects. First, it is the 
objective of the goals to increase the participation of 
groups which have not been enrolled in significant numbers 
in the past. Second, the goals do not constitute a ceiling, 
i.e., no more than a specified number will be admitted. 
Clearly the intent of goals is the opposite of that of quotas, 
to include rather than limit.
In general the programs described above are consistent 
with the requirements of Title VI. Numerous court deci­
sions have held that differential treatment on the basis of 
race is not a violation of the Constitution where its intent 
is to overcome the effects of past discrimination. Negroes, 
Spanish-surnamed Americans, and American Indians, as 
groups, have been subjected to various kinds of discrimina­
tion which have resulted in substantially diminished op­
portunities for them to derive the benefits of a higher ed­
ucation. It should be noted, however, that preferential ar-



3a

Appendix

rangements for minority students cannot be established on 
a permanent basis. At some point, the appearance of 
minority group members in an institution’s enrollment 
would be such as to require abandonment or suitable modifi­
cation of the special programs.
We appreciate your personal interest in this matter. If 
the Department can be of further assistance, please let me 
know.

Sincerely yours,

(Sgd.) Patricia A. King

J. Stanley Pottinger 
Director, Office for Civil Bights



ME1LEN PRESS !NC. —  N. Y. C. «sggl^> 219