Uzzell v. Friday Brief for Additional Defendants-Appellees

    ' :
VV

\"

. IN THE
UNITED STATES COURT OF APPEALS m

«r ' \

FOR THE FOURTH CIRCUIT 
No. 75-2276

LAWRENCE A. UZZELL and ROBERT LANE ARRINGTON, 
Individually, and upon behalf of all others similarly situated,

Plaintiffs-Appellants,
v.

■ WILLIAM C. FRIDAY, Individually,- and as President 
of the University of North Carolina,, et al,

Defendants-Appellants,
and

ALGENON L. MAR3LEY, Chairman of the Black Student 
Movement and ROBERT L. WYNN, II, Vice-Chairman cf Black Student Movement, .v_,\

Additional Defendants-Appellees

On Appeal' From the United States District Court For 
The Middle District of North Carolina 

.. . ' Durham Division__________ _____
BRIEF FOR ADDITIONAL DEFENDANTS -A.PPT~7T.F.F.q

JULIUS CHAMBERS 
CHARLES BECTON 
JAMES C. FULLER, JR.
CHAMBERS, STEIN, FERGUSON & BECTON, 
951 South Independence Boulevard 
Charlotte, North Carolina 28202

'KAREN GALLOWAY
Post Office Box 720
Chapel Hill, North Carolina 27514

JACK GREENBERG 
JAMES M . NA3RIT, III 
NAPOLEON B. WILLIAMS, JR.'
JUDITH REED
10 Columbus Circle, Suite 2030 
New York, New York 10019

ATTORNEYS FOR ADDITIONAL DEFENDANTS - APPELLEES

P .A.



TABLE OF CONTENTS

Page
Challenged University Provisions ................... viii
Statement of Issues Presented

I. Whether the Prior Racial Discrimination 
Against Blacks at the University of 
North Carolina Constitutes A Justifica- 

i tion for the University's Remedial, Race- 
Conscious Policies Concerning the Student 
Honor Court and the Campus Governing Council?

II. Whether the Attempt of the University of North 
Carolina to Bring Itself Into Compliance with 
Title VI and Orders of HEW Permits the Univer­
sity to Use the Race-Conscious Remedial Measures 
Challenged Here?

III. Whether the Interests of the University in 
Fostering Diversity and in Providing A Fair 
Trial for Its Students Constitute Sufficiently 
Compelling Governmental Interests Justifying the University's Use of Remedial, Race-Conscious 
Measures?

IV. Whether this Action Should Be Remanded to the 
District Court for Further Fact-Finding?

V. Whether this Court Should Dismiss this Action 
Because of Plaintiffs' Lack of Standing and 
the Lack of Injury Caused to Others by the 
University's Policies Challenged in this Action?

Statement Of The Case ............................... 1
Statement Of Facts .................................. 3
ARGUMENT

I. THE JUDGMENT OF THE DISTRICT COURT FOR THE
DEFENDANTS SHOULD BE AFFIRMED ................. 7

l



II.

A. The Criteria Established by the
United States Supreme Court in 
Regents of the University of 
California v. Bakke Govern the 
Disposition of This Action ................

B. The Prior History of the University
of North Carolina and of the State 
of North Carolina in Discriminating 
Against Black Students and Inhabi­
tants Constitutes a Necessary and 
Sufficient Condition For the Insti­
tution of the University's Race- Conscious Remedial Programs ...............

C. The-University's Programs Insuring 
Adequate Representation of Different 
Racial Groups on the Campus Governing 
Council and the Student Honor Court 
Are Constitutionally Permissible As
Means For Insuring Diversity ...............

AS AN ALTERNATIVE WAY OF DECIDING THE
COMPLEX AND PERPLEXING ISSUES RAISED
IN THIS CASE, THE COURT SHOULD REMAND
THE ACTION TO THE DISTRICT COURT FOR
FURTHER FACT FINDING AND DEVELOPMENT
OF THE RECORD ...............................

A. Defendants Are Entitled to Have the 
District Court Weigh the Evidence
of Prior Racial Discrimination By the 
State of North Carolina and the Uni­
versity of Northat Carolina at Chapel Hill ......................................

B. A Remand is Appropriate for the Taking of
Evidence On the Extent to Which the Uni­
versity's Programs Respecting the Composi­
tion of the Campus Governing Council and 
the Student Honor Court Furthers the Uni­versity's Interest in Diversity ...........

C. Defendants Are Entitled Under Bakke to
Present Additional Evidence Concerning Other 
Interests Which the University Has for Insti­
tuting and Maintaining Its Race-Conscious 
Programs ..................................

Page

10

24

42

46

46

48

49

-  l i



Page

III. THE STANDARDS OF ELEMENTAL DUE PROCESS RE­
QUIRE A REMAND OF THIS ACTION IN ORDER TO 
ALLOW DEFENDANTS-APPELLEES THE OPPORTUNITY 
OF A TRIAL ON THE MERITS ................... 51

IV. THIS ACTION SHOULD BE DISMISSED BECAUSE OF
THE LACK OF INJURY TO PLAINTIFFS AND OTHERS.. 53

CONCLUSION .......................................... 57

CERTIFICATE OF SERVICE

- iii -



Table of Cases

Cases Pages
Adams v. Richardson,

356 F. Supp. 92 (D.C.D.C. 1973),Modified, 480 F.2d 1159 (D.C. Cir. 1973) ... 26,27,28,29,47
Alex v. Allen,

409 F. Supp. 379 (W.D.Pa. 1976) ......... 33
Armstrong v. Board of Education of City

of Birmingham, 323 F.2d 333 (5th Cir. 1963).. 33
Associated General Contractors of

Massachusetts, Inc. v. Altschuler,
490 F. 2d 9 (1st Cir. 1973) .............  41

Bakke v. Regents of the University of 
California, 18 Cal. 3d 34, 132 Cal.
Reptr. 680, 553 P.2d 1152 (1976), rev'd. 
sub nom. Regents of the University of
California v. Bakke, 438 U.S. ____,
98 S.Ct. 2733, 57 L.Ed. 2d. 750 (1978) .....  14

Borden's Farm Products Co. v. Baldwin,
293 U.S. 543 (1934) ........................ 52

Bridgeport Guardians, Inc. v. Bridgeport 
Civil Service Commission, 482 F.2d 133 
(2nd Cir. 1973).............................. 41

Broussard v. Patton, 446 F.2d 816 (D.C.D.C.
1975) ...................................... 29

Carter v. Gallagher,
452 F.2d 315 (8th Cir. 1971),
Modified on rehearing en banc,
452 F. 2d 327 (8th Cir. 1971)................ 41

Chastleton Corp. v. Sinclair,
264 U.S. 543 (1924).........................  52

Contractors Association of Eastern Pennsylvania 
v. Secretary of Labor, 442 F.2d 159 (3d Cir.
1971), cert, denied, 404 U.S. 954 (1971) .... 41

Craig v. Boren,
429 U.S. 190 (1976) ........................ 52

iv



Crane v. Sun Insurance Office, Ltd.
375 F. 2d 670 (4th Cir. 1962) ............. 51

Dabney v. Cunningham,
317 F. Supp. 57 (E.D. Va. 1970) ......... 51

Doe v. Bolton,
410 U.S. 179 (1973) ..................... 55

Dowell v. School Board of Oklahoma City 
Public Schools, 244 F. Supp. 971 
(W.D. Okla. 1965), aff'd. in part. 
Board of Education of Oklahoma City 
Public Schools Independant District 

No. 89 v. Dowell,
375 F.2d 158 (10th cir.1967), cert.
denied, 387 U.S. 931 (1967) ........... 33

Frasier v. Board of Trustees of the University 
of North Carolina, 134 F. Supp. 589(M.D.N.C. 1955)........................... 25,29,30,46,47

Granader v. Public Bank,
417 F.2d 75 (6th cir. 1969), cert.
denied, 397 U.S. 1065 (1970) ............. 29

Griswold v. Conn cticut, 381 U.S. 479 (1965) 55
Lambert v. Conrad,

308 F. 2d 571 (9th cir. 1971) ............ 29
Lau v. Nichols

414 U.S. 563 (1974) ....................... 55

McDonald v. Santa Fe Trail Transportation Co., 
427 U.S. 273 (1976) .....................

McKissick v. Carmichael,187 F. Supp. 949 (4th Cir. 1950) ....... 47
Nader v. Allegheny Airlines, Inc.,

512 F . 2d 527 (D .C .D .C . 1975) ............... 29
Nashville; Chattanooga & St. Louis Ry. Co. v.

Walters, 294 U.S. 405 (1935) .............. 52
Paul v. Dade County,419 F.2d 10 (5th Cir. 1969), cert denied,

397 U.S. 1065 (1970) ...................... 29

v



Planned Parenthood of central Missouri
v. Danforth, 423 U.S. 52 (1976) ......... 52

Polk v. Glover,
305 U.S. 5 (1938) ....................... 52

Regents of University of California v.
Bakke, 438 U.S. ____, 98 S.Ct. 2733,57 L .Ed. 2d, 750 (1978)................... passim

Schlesinger v. Reservists Committee to
Stop The War, 418 U.S. 208 (1974)........ 19

Soglin v. Kaufmann,
295 F. Supp. 978 (W.D. Wis. 1968) aff'd,418 F. 2d 163 (7th Cir. 1969 ) ........ 40

Swain v. Alabama,
308 U.S. 221 (1965) ..................... 21,22

Swann v. Charlotte - Mecklenburg Board of
Education, 402 U.S. 1 (1971) ........... 30,47

Sweatt v. Painter,
339 U.S. 629 (1950) ..................... 48

Trafficante v. Metropolitan Life Insurance
CO., 409 U.S. 205 (1972)................. 55

United Jewish Organizations v. Carey,
430 U.S. 144 (1977) ..................... 41,55

United States v. City of Jackson,
318 F.2d 7 (5th Cir. 1963), rehearing 
denied, 320 F.2d 870 (5th Cir. 1963.).... 39

United States v. Griffin,
525 F. 2d 710 (1st cir. 1975)............. 32

United States v. Grimes,
299 F. Supp. 289 (N.D. Ga. 1964)......... 32

Uzzell v. Friday, 401 F.Supp 775 (M.D.N.C.
1975), aff'd in part, rev'd. in part,
547 F.2d 801 (4th Cir. 1977)aff'd on rehearing, 558 F.2d 727 (1977) ........ 1,2

Warth v. Seldin,
422 U.S. 490 (1975) .................... 19,53,54,55

vi



Weaver v. Palmer Bros, Co.
270 U.S. 402 (1976).......................... 52

Weber v. Aetna Casualty & Surety Co.
406 U.S. 164 (1972) .......................... 18

Wheeler v. Durham Board of Education,
326 F. 2d 759 (4th Cir. 1964).................. 30'

- V i l -



CHALLENGED UNIVERSITY PROVISIONS

University of North Carolina Student Constitution, Art. I §1.A-D

ARTICLE I . LEGISLATURE
§ 1. CAMPUS GOVERNING COUNCIL
A. Supreme legislative power in the Student Body is 

vested in a Campus Governing Council (hereinafter 
referred to as "Council.")

B. COMPOSITION. The Council shall be composed of 20 
elected Councillors, the President of the Student 
Body as a voting ex-officio member, and not to 
exceed four appointed Councillors if necessary to 
comply with Section l.D. of this A.rticle.

C. ELECTION. The elected members of the Council shall 
be chosen during the election in the Spring Semester, 
to serve one year, and until their successors are 
elected.

D. MINORITY REPRESENTATION. To ensure there be a pro­
tective representation of minority races and both 
sexes on the Council, at all times there shall be at least two Councillors of a minority race within the 
Student Body (if any), two male Councillors, and two 
female Councillors. If at any time the requirements 
of this section are not fulfilled, the President of 
the Student Body, with the consent of the Council, 
shall make the number of appointments necessary to 
ensure compliance with this section, PROVIDED that 
any such appointment shall take effect unless re­
jected by the Council within 10 days of submission. 
All appointed Councillors shall have the same rights, 
privileges, and duties of elected Councillors and 
shall serve for the remainder of the term of the 
Council. No appointments made necessary by the 
results of a Spring Election shall be submitted to 
other than the Council newly elected.

viii



The Instrument of Judicial Governance For the University of 
North Carolina at Chapel Hill, IV, E.2.e.(2):

IV. E. 2. e. 2) If requested by the defendant, provision
made for racial or sexual representation (but 
not both) on the trial court, as follows:
a) At least four of the seven members of the 

trial could shall be of the same sex as 
the defendant;

b) When a defendant is not a member of the 
majority race, at least four of the seven 
members of the trial court shall not be of 
the majority race;

c) When a defendant is a member of the majority 
race, at least four of the seven members of 
the trial court shall be of the majority race.



STATEMENT OF ISSUES PRESENTED

I. Whether the Prior Racial Discrimination Against Blacks 
at the University of North Carolina Constitutes A 
Justification for the University's Remedial, Race- 
Conscious Policies Concerning the Student Honor Court 
and the Campus Governing Council?

II. Whether the Attempt of the University of North Carolina 
to Bring Itself Into Compliance with Title VI and Orders 
of HEW Permits the University to Use the Race-Conscious 
Remedial Measures Challenged Here?

II. Whether the Interests of the University in Fostering
Diversity and in Providing A Fair Trial for Its Students 
Constitute Sufficiently Compelling Governmental Interests 
Justifying the University's Use of Remedial, Race-Conscious 
Measures?

TV. Whether this Action Should Be Remanded to the District Court 
for Further Fact-Finding?

V. Whether this Court Should Dismiss this Action'Because of
Plaintiffs' Lack of Standing and the Lack of Injury Caused 
to Others by the University's Policies Challenged in this 
Act ion?



STATEMENT OF THE CASE

This case is before this Court on remand from the United 
States Supreme Court. The Supreme Court vacated this Court's 
previous judgment and remanded the case to this Court for further 
consideration in light of Regents of University of California v.
Bakke_, 438 U.S. ____, 98 S.Ct. 2733, 57 L.Ed.2d 750 (1978)
(hereinafter cited as "Bakke").

Plaintiffs commenced this action on June 15, 1974, in the 
United States District Court for the Middle District of North 
Carolina. Asserting three claims for relief, plaintiffs sought 
declaratory and injunctive relief against defendants with re­
spect to three practices of the University of North Carolina 
alleged to violate the Fourteenth Amendment, the Civil Rights 
Act of 1871, 42 U.S.C. §1983, and the Civil Rights Act of 1964, 
Title VI, 42 U.S.C. §2000d. The plaintiffs sought class certi­
fication of this action. On defendants' motion to dismiss, or 
in the alternative for summary judgment, the district court 
awarded judgment for defendants. Uzzell v. Friday. 401 F.Supp. 
775 (M.D.N.C. 1975). On appeal by the plaintiffs, this Court 
affirmed summary judgment in favor of the defendants as to 
plaintiffs' first claim; however this Court reversed the judg­
ment below on plaintiffs' second and third claims and awarded 
judment with respect to those claims to the plaintiffs. Uzzell 
v. Friday. 547 F.2d 801 (4th Cir. 1977). Judgment was awarded 
as to the named plaintiffs only.

1



Upon timely petition for rehearing this Court, sitting 
in banc, affirmed, with certain modifications not relevant here 
its previous decision. Three judges dissented. Uzzell v. 
Friday. 558 F.2d 727 (1977).

Defendants on January 24, 1977, timely petitioned the 
United States Supreme Court for a writ of certiorari to review 
the judgment of the court. The petition was granted and on 
July 3, 1978, the Supreme Court issued a writ vacating the judg 
ment of this Court and remanding the case to this Court for 
further consideration in light of 3akke, supra.

Following the remand, plaintiffs, by motion dated July 14, 
1978, moved this Court to expedite briefing and oral argument 
in this case. Defendants filed a response opposing the motion 
and further moved to have the case remanded to the district 
Court or to be dismissed. This Court thereupon set this case 
for oral argument on November 16, 1978, directing the parties 
to submit briefs by November 13, 1978.

2



STATEMENT OF FACTS

The plaintiffs are two white males who were in attendance 
at the University of North Carolina at Chapel Hill (hereinafter 
the "University") at the time of filing their complaint. They 
seek in this action to challenge the validity of certain practices 
authorized by the University. The first claim for relief, now 
mooted, concerned the validity of the University's funding of the 
Black Student Movement, a campus group whose constitution alleged­
ly restricted membership of the group to black students. During 
the pendency of the action, the group's constitution was amended 
to open its membership to students of all races. Accordingly, 
judgment was entered by the district court, and affirmed on appeal, 
dismissing plaintiffs' cause of action regarding this group.

Plaintiffs, in their second claim, challenged a specific 
regulation of the University, set forth in the university of 
North Carolina Student Constitution, Article I §1.A-D, which pro­
vides for racial and sexual representation on the Campus Govern­
ing Council (CGC), the student legislative body. Pursuant to 
that regulation, the President of the student body, with the 
consent of the Campus Governing Council, is directed to make 
appointments to the Council to insure that one third of the Council 
is composed of black students and one third is composed of female

3



students. This mandate, however, is effective only if elections 
fail to produce the above mentioned result Plaintiffs challenge 
the validity of these regulations, claiming that they discrimin­
ate against plaintiffs on account of their race.

Plaintiffs' third claim for relief concerns the validity 
of provisions of the University's Instrument of Judicial Govern­
ance For the University of North Carolina at Chapel Hill, IV, 
E.2e(2), which allows for racial and sexual representation on 
the Student Honor Court, the judicial arm of the Student govern­
ment. The Student Honor Court tries cases involving student dis­
ciplinary actions. The Instrument of Judicial Governance states 
that a defendant appearing before this student court may request 
that four of the seven judges be members of his or her own race 
or sex, if such representation is not already part of the Court. 
Plaintiffs also claim that this Instrument discriminates against 
them because of their race.

The brief record developed thus far discloses some of the 
reasons for the institution of these provisions. One stated 
purpose of the first provision is to ensure that, in a student 
body that is overwhelmingly white and male, minorities and females 
will be represented on the Campus Governing Council thus, making 
certain that the legislative body will be representative of the

4



various "diverse groups on campus" (Epps. Aff.) Another purpose 
to be established in the record is to bring the University into 
compliance with Title VI of the Civil Rights Act of 1964, as 
amended, 42 U.S.C. §2000d and the Fourteenth Amendment. This 
provision'was approved in September 1972 as part of a student 
referendum. The second provision, relating to the Honor Court, 
was effectuated by vote of the student body in "response to a 
perception, particularly among minority students, that the Student 
Courts were not providing fair adjudications to all students." 
(Stallings Aff., para. 2). This provision must also be regarded 
as part of the University's efforts to comply with Title VI of 
the Civil Rights Act and the Fourteenth Aemendment.

Plaintiffs have never sought to be judges of the Honor Court; 
nor have they been in the position of being an accused before that 
Court. Moreover, plaintiffs have never sought membership on the 
Campus Governing Council. Since the effective date of the Univer­
sity's provision concerning the Council, the President has had 
occasion to exercise his powers under those provisions.

With respect to both the Council and the Honor Court, the 
additional defendants in this action maintain that the University's

1/ All references to affidavits are to those sworn affidavits 
submitted to the District Court on the defendants' motion 
for summary judgment. These affidavits also appear in the 
Appendix for Appellants previously submitted to this court.

1/

5



provisions are not unlawful, that the University has compelling 
reasons to institute such provisions, and that the provisions 
are justified by the prior racial discrimination engaged in by 
this University and the State of North Carolina against black 
students.

6



ARGUMENT

I. THE JUDGMENT OF THE DISTRICT COURT FOR THE 
DEFENDANTS SHOULD BE AFFIRMED

This case raises issues that are important in determ­
ining the permissible latitude which universities are to 
have in remedying adverse racial consequences arising 
from a period during which rigid laws and rules prescrib­
ing racial segregation governed the conditions of academic 
life at universities within the State of North Carolina 
and governed the nature of social and political relations 
between inhabitants of the State. Moreover, this case 
involves the important question of the efficacy which judi­
cial and administrative findings of past racial discrimination 
by the University of North Carolina and by the State of North 
Carolina will have in the implementation of the Supreme 
Court's decision in Regents of the University of California
v. Bakke, ___ U.S. ___, 57 L.Ed.2d 750 (1978). Within this
context, resolution of the issues to be decided in this 
case will serve to delimit the extent to which admitted 
acts and practices of past discrimination against blacks 
by the University of North Carolina, as confirmed by judicial 
and administrative findings, constitute an adequate basis 
upon which the institution of race-conscious remedial measures

7



can constitutionally be founded. Additionally, decision 
here will determine to what degree a university's recog­
nized interest in obtaining diversity amongst its students 
extends to the racial composition of student organizations, 
such as the Campus Governing Council and the Honor Court, whose 
makeup'and role may otherwise frustrate the realization 
of the university's purpose in seeking a diversity of its 
student body.

Of course, there are other issues in this case, such 
as standing, justiciability, and procedural due process, 
which were raised either in the district court or in this 
Court. Those issues have not been abandoned. The additional 
defendants adhere to the positions on these issues which 
they, the State of North Carolina, Judges Winter and Butzner, 
and Chief Judge Haynsworth, dissenting, took in this Court's 
earlier consideration of this case. in particular, the 
additional defendants object to plaintiffs' lack of standing 
and to this Court's granting of summary judgment before the 
defendants had had an opportunity to present evidence in 
justification of the race-conscious remedial programs 
attacked here. However, in view of the Supreme Court's 
decision to vacate this Court's earlier judgment in this 
action and to remand the case for further consideration in

8



light of Regents of the University of California v. Bakke, 
supra, the additional defendants have decided, without in 
any way relinquishing these earlier defenses and objections, 
to focus primarily in this brief on the issues presented 
by Bakke, supra, which the Supreme Court has ordered this 
Court to consider. This Court, however, retains its plen­
ary power to correct its earlier decision and to award 
judgment to the defendant based upon both the Supreme Court's 
decision in Bakke and the reasoning of the district court 
below. The additional defendants strongly urge that the 
Court adopt this cause of action. Irrespective, however, 
of whether this Court adopts the reasoning of the district 
judge below, the judgment of the district court should be 
affirmed on the basis of the opinion in Regents of the 
University of California v. Bakke, supra.

9



A. The Criteria Established By the United 
States Supreme Court in Regents of the 
University of California v. Bakke 
Govern the Disposition of This Action.

The basic facts in Regents of the University of California
v. Bakke, 438 U.S. ___, 57 L.Ed.2d 750 (1978), can be simply
stated. The University of California Medical School at Davis, 
as part of an alleged remedial affirmative action admissions 
program,set aside sixteen places in its incoming freshman 
class for minority applicants for admission. Minority appli­
cants were, under this program, applicants who were black, 
Indian, Asian, or Mexican-American. In filling these sixteen 
seats, the admissions committee at the Davis' Medical School 
assessed the qualifications of minority applicants only in 
relationship to the qualifications of other minorities. Allan 
Bakke, a white applicant, was denied admission to the Medical 
School. Alleging that his denial was based upon his race 
and that but for his race, he would have been admitted to 
one of the sixteen seats reserved for minority applicants,
Allan Bakke brought suit to compel his admission to the 
Medical School. The State of California conceded that it 
could not demonstrate that Allen Bakke would not have been 
admitted in the absence of the reservation of the sixteen 
seats to minority aspirants. Based in part upon this con­
cession, the Supreme Court of California held that the

10



admissions program in effect at the Davis Medical School 
was in violation of the Fourteenth Amendment's equal pro­
tection clause and ordered Allan Bakke admitted. Review 
was sought by the State in the United States Supreme Court.

In the Supreme Court of the United States, Justices 
Powell, Stevens, Stewart, Rehnquist, and Chief Justice 
Burger agreed that Allan Bakke should be admitted to the 
Medical School. Their reasons, however, as expressed in 
Justice Powell's opinion and in Justice Stevens' opinion, 
in which the other three Justices joined, were different.
The latter group of four Justices —  Stevens, Burger, Rehnquist 
and Stewart —  based their holding squarely upon Title VI 
of the Civil Rights Act of 1964, as amended. They concluded 
that Title VI of the Civil Rights Act prohibited, by the 
"plain language of the statute," 57 L.Ed.2d 848, the specific 
special admissions program operated by the University of 
California Medical School at Davis inasmuch as that program 
"excluded Bakke from participation in its program of medical 
education because of his race," at 5 7 L.Ed.2d 848. In 
reaching this determination, those Justices did not construe 
the facts of the case as presenting the general question of 
whether the use of race was a permissible factor in making 
admissions decision. Indeed, they stated categorically that

It is therefore perfectly clear that 
the question whether race can ever be used

11



as a factor in an admissions decision 
is not an issue in this case, and 
that discussion of that issue is inap­
propriate, at 57 L.Ed.2d 847.

In view of this posture of the Justices joining the 
Stevens' opinion, that opinion offers little guidance on 
questions such as are raised here concerning the use of 
race-conscious remedial programs by universities engaged 
in the process of dismantling a dual school system. 
Moreover, Justice Stevens' opinion offers no guidance 
whatsoever on the validity of race-conscious remedial 
programs under the Fourteenth Amendment. By holding that 
a private right of action exists under Title VI and that 
the scope of Title VI is broader than the scope of the 
equal protection clause of the Fourteenth Amendment, 
Justice Stevens was able to decide the issue in Bakke 
while obviating the necessity of passing upon the consti­
tutional issues. Since five other Justices, including 
Justice Powell, held in Bakke that the scope of Title VI 
was co-extensive with the scope of the equal protection 
clause, the Justices joining in the Stevens' opinion, 
being overruled on this point by five Justices, will have 
to reach the constitutional questions in future cases 
under Title VI concerning race-conscious programs. The 
Stevens' opinion in Bakke is, for cases involving the val­
idity of race-conscious remedial measures— such as those



presented in the instant case-— of no consequence in com­
plying with the Supreme Court's decision in Bakke.
Guidance must instead be sought from the other opinions 
rendered in the case.

The opinion by Justice Brennan, in which Justices 
White, Marshall, and Blackmun concurred, and the opinion 
by Justice Powell, are the critical opinions in the 
Supreme Court with respect to the general question of the 
validity of race-conscious remedial programs. The 
Brennan opinion and the Powell opinion, both based upon 
the scope and efficacy of the equal protection clause as 
applied to governmental action, hold that the use of 
racial classifications and race-conscious programs is not 
invalid under either the Fourteenth Amendment or Title VI 
of the Civil Rights Act. Both opinions, in fact, set out 
criteria by which the validity of such classifications 
and programs are to be measured. Since three other 
Justices Marshall, white and Blackmun —  concurred in 
Justice Brennan's opinion, the decision in Bakke holds, 
as a minimum, that racial classifications and race—conscious 
programs are not per se unlawful. It is precisely this 
aspect of the Supreme Court's holding in Bakke that un­
doubtedly led it to vacate this Court's earlier judgment

13



which, as a practical matter, had erroneously concluded 
that the race-conscious programs adopted by the University 
of North Carolina for its Campus Governing Council and 
Honor Court were per se constitutionally impermissible.
Indeed, this Court had, in disapproving the University's 
programs, cited the decision of the Supreme Court of 
California in Bakke v. Regents of the University of California, 
18 Cal.3d 34, 132 Cal. Rptr. 680, 553 P.2d 1152 (1976) and 
the decision of the Supreme Court in McDonald v. Sante Fe 
Trail Transportation Co., 427 U.S. 273 (1976). To the 
extent that either case had held racial classifications were 
per se unlawful, they must be considered as having been 
overruled by the Supreme Court in its Bakke decision.

In moving beyond this narrow area of concurrence between 
the Powell opinion and the Brennan opinion in Bakke for 
the purpose of ascertaining the nature and scope of race­
conscious programs and classifications which are held 
constitutional under Bakke, some attention must be given, 
in order to facilitate a clear presentation of the signifi­
cance of the Bakke decision, to the differences of views 
between Justices Brennan and Powell.

The Brennan opinion and the Powell opinion concur in 
the overall judgment that racial classifications are not 
per se unlawful either under Title VI of the Civil Rights

14



Act or under the equal protection clause of the Fourteenth 
Amendment. Moreover, both Justices, as well as the three 
Justices joining in the Brennan opinion, agree that remed­
ial race-conscious programs may be constitutional and 
that their validity is determined by the scope and nature 
of the governmental interests advanced in their support. 
Justices Powell and Brennan did not agree, however, on 
the formulation to be used in expressing the criteria by 
which the legitimacy of the interests, and therefore the 
legitimacy of race-conscious programs, was to be determined.

Justice Powell held that a racial classification 
made by a government is justifiable if the government 
demonstrates that

its purpose or interest is constitution­
ally permissible and substantial, and 
that its use of the classification is 
'necessary... to the accomplishment' of 
its purpose or the safeguarding of its 
interest. at 57 L.Ea.2d 781.

However, Justice Powell also allowed that racial prefer­
ences could be justified where

a legislative or administrative body 
charged with the responsibility made 
determinations of past discrimination 
by the...(persons) affected, and 
fashioned remedies deemed appropriate 
to rectify the discrimination. at 
57 L.Ed.2d 778.

15



Justice Powell's analysis seems to treat these two justi­
fications as separate and distinct rather than overlapping. 
Whether they are distinct or not need not be determined 
here. It is sufficient for present purposes to note that, 
under Justice Powell's analysis, a government's use of race­
conscious measures can be justified either by the existence 
of substantial, constitutionally permissible purposes 
underlying use of the measures or by the existence of 
findings of discrimination made by appropriate governmental 
agencies that are plainly adapted to the need to institute 
the measures. Since it was not seriously contended in 
Bakke, supra, that the Medical School there had ever dis­
criminated against any of the minorities favored by its 
admission plan, Justice Powell was required to evaluate 
the legitimacy of the Davis' admissions program by determ­
ining the substantiality, necessity and constitutional 
permissibility of the interests which the University ad­
vances in support of its admissions program. The particular 
interests which he found to be constitutionally permissible 
and substantial will be discussed,to the extent that they 
are related to the issues raised here on remand, in 
subsequent portions of the brief.

Like Justice Powell, justice Brennan also found that

16



race-conscious, remedial admissions programs could be 
justified as a result of specific governmental findings 
of past, or continuing, discrimination. He seemed to 
have conceived this justification, however, as being 
merely a specific instance which satisfied a more overall 
standard which he believed had been made applicable by 
the Supreme Court's previous cases in this area. That 
standard was that racial classification "must serve im­
portant governmental objectives and must be substantially 
related to achievement of those objectives." Bakke, supra, 
at 57 L.Ed.2d 814.

The two formulations obviously differ in phraseology. 
Perhaps, they even differ in ultimate meaning and signifi­
cance. Nevertheless, the two formulations are closely 
akin to one another. Both, for example, require a careful 
scrutiny of interests purported to be the basis for the 
adoption of programs and policies that are based upon 
race. Moreover, the underlying purpose behind each 
standard is the same. Justice Brennan expressed that pur­
pose, in his Bakke opinion, in the following words

While a classification is not per se 
invalid because it divides classes on 
the basis of an immutable characteristic 
...it is nevertheless true that such 
divisions are contrary to our deep belief

17



that "legal burdens should bear some 
relationship to individual responsi­
bility or wrongdoing." at 57 L.Ed.2d 
815 (quoting Weber v. Aetna Cas. &
Surety Co., 406 U.S. 164, 175 (1972)).

Thus, the legal disability imposed upon persons innocent of 
any wrongdoing is one of the basic reasons for invoking 
a close scrutiny of racial classifications. This is 
Justice Powell's view also. In his discussion of the ap­
plicable standard of review for racial classifications, 
he stated

When a classification denies an 
individual opportunities or benefits 
solely because of his race or ethnic 
background, it must be regarded as 
suspect." at 57 L.Ed.2d 781.

Thus, for a majority of the Court in Bakke, the degree of 
harm caused to innocent persons is a determinant of the 
level of scrutiny required to be exercised for racial class­
ifications .

It is in this context, as well as with respect to 
the defendant's argument that plaintiffs lack standing to 
seek the relief they demand, that the absence of any 
specific injury to the plaintiffs, caused by the University's 
use of a race-conscious, remedial program must be assessed. 
The lack of any specific injury to these plaintiffs is 
demonstrable. At the time the defendants moved in the

18



district court to dismiss the action or, in the alterna­
tive, to grant defendants summary judgment, the original 
defendants alleged both that plaintiffs lacked standing 
because of the absence of a specific injury and that the 
complaint, because of the same lack of harm, failed to 
show an actual controversy between the parties such as 
required by Article III, §2, of the United States Constitution 
and by policy considerations concerning the proper use of 
the federal judicial power. See Warth v, Seldin, 422 U.S.
490, 498-501 (1975); Schlesinger v. Reservists Committee 
To Stop The War, 418 U.S. 208 (1974). The plaintiffs did 
not, in response to this motion of the defendants, allege 
and establish the existence of an individualized injury 
occurring to either of them by virtue of the University's 
race-conscious programs. Nor could any such allegation or 
showing have been made.

With respect to the Student Honor Court and the 
University's Instrument of Student Jucidial Governance of 
1974 which provides that an accused has the right, upon 
his or her trial, to demand that four of the seven judges 
on the trial bench of the Honor Court be of the same race 
or sex of the accused, plaintiffs did not claim that they

19



had presented their candidacies for judgeship on the 
Honor Court only to be rebuffed on account of their race.
Nor did the plaintiffs allege that either of them had been 
in the position of an accused and that their interests or 
rights had been denied them by consequence of the Instrument 
of Student Judicial Governance of 1974. Moreover, the 
plaintiffs did not offer any evidence tending to show, or 
indicate, that blacks, by virtue of the 1974 Instrument of 
Student Judicial Governance, had been able to obtain a"juster 
justicd' than whites had been able to obtain or that whites 
had been denied justice as a result of the implementation 
of the Instrument. Similarly, these plaintiffs did not 
allege and demonstrate that the provisions of the Student 
Constitution requiring the presence of "at least two 
Councillors of a minority race...two male Councillors and 
two female Councillors" had been used to infringe upon 
particular interests of theirs.

The significance of the absence of a particularized 
injury, in the context of the Supreme Court's decision in 
Bakke, can perhaps best be appreciated by realizing that 
the concessions made in Bakke by the University that it 
could not be shown that Allan Bakke would not have been 
admitted to the Davis' Medical School in the absence of

20



the special admissions program setting aside sixteen
seats for minority applicants, triggered the Court's 
rather strict standard of review. Bakke, supra, at 57 
L.Ed. 777-781. With respect to a lesser standard of re­
view, based upon the reasonableness of the racial classi­
fication, the provisions governing composition of the 
Honor Court are far less intrusive upon plaintiffs' in­
terests, if any, than was true in Alabama of the impact 
upon black criminal defendants of the prosecutor's use of 
peremptory challenges to exclude blacks from serving on 
petit juries. Yet, the prosecutorial practice was upheld 
in Swain v. Alabama as a necessary result to be endured 
"(i)n the quest for an impartial and qualified jury." at 
380 U.S. 221 (1965). The purpose of•the 1974 Instrument was to 
insure to blacks an impartial adjudication which they might 
otherwise never have received. In the supporting papers 
of defendant's motion to dismiss or to grant summary judg­
ment, the affidavit of Joseph Henry Stallings, past President 
of the Student Body of the University of North Carolina at 
Chapel Hill and a past Editor-In-Chief of the North Carolina 
Law Review, attests that the provision relating to the 
Honor Court, which was introduced by him, was passed by 
the Student Legislature for the reason that it was perceived

- 21 -



that the "Student Courts were not providing fair adjudi­
cations to all students," especially minority students.
His affidavit further states that the provision permitting 
accused students to have members of their race on the 
Student Court "would create a greater perception of fairness 
in the operations of the Student Courts." Plaintiffs did 
not seriously or effectively controvert this showing.

To he sure, the rule allowing peremptory challenges in 
Swain v. Alabama, supra, was held reasonable under circum­
stances in which the prosecutor could challenge jurors for 
reasons other than that they were black. This is not how­
ever a sufficient distinction to invalidate a finding of 
reasonableness under the Swain v. Alabama, supra, rule 
since here too there were other reasons for varying the 
composition of the Honor Court, such as sexual representa­
tion. Moreover, it must be assumed, in the absence of 
allegations to the contrary, that the racial and sexual 
composition of the judges on the Honor Court was, during 
the transitional time following the University's elimina­
tion of racial and sex barriers against blacks and women, 
the only significant obstacles to overcome in the operation 
of the Honor Court and its "quest for an impartial and 
qualified" group of judges. The University ought not to 
be penalized, in the absence of any concrete harm to

22



individuals, for taking such limited, reasonable steps 
to secure justice when those were the only steps required 
to be taken. The same considerations governing the valid­
ity of the racial restrictions placed upon the Honor Court 
apply with equal force to the rules respecting the racial 
composition of the Campus Governing Council since they 
were imposed for similar reasons.

In addition to justifying the University'r race­
conscious programs under a standard of reasonableness, 
which is a lesser standard than that required by Justice 
Powell and Brennan when racial classifications impact 
upon specific interests of otherwise innocent individuals, 
the University1s remedial programs can also be justified 
by virtue of the prior discrimination against blacks en­
gaged in by the University as well as by the compelling 
and important interests referred to by Justices Powell and 
Brennan in their opinions in Bakke.

23



B. The Prior History of the University 
of North Carolina and of the State 
of North Carolina in Discriminating 
Against Black Students and Inhabitants 
Constitutes a Necessary and Sufficient 
Condition For The Institution of the 
University's Race-Conscious Remedial 
Programs.________________________

In his Bakke opinion, Justice Powell noted, 57 L.Ed.2d at 782,

We have never approved a classifica­
tion that aids persons perceived as 
members of relatively victimized groups 
at the expense of other innocent individ­
uals in the absence of judicial, legis­
lative, or administrative finding of 
constitutional or statutory violations.

Although Justice Powell's granting in Bakke of constitu­
tional sanction to admissions plans like that of Harvard Col­
lege —  in which race is one of the competitive factors 
to which a university or college can give consideration —  

necessarily implies that the decision in Bakke is a case 
in which a racial classification at the expense of inno­
cent persons was approved by the Supreme Court in the 
absence of governmental findings of racial discrimination, 
it is unnecessary here to determine the right of the 
University to adopt the measures challenged here without 
such findings since both the University and the State which

24



supervises it have practiced extensive racial discrimina­
tion against blacks. Moreover, this is a case in which 
there are judicial, legislative, and administrative find­
ings of discrimination by the State and the University 
of North Carolina.

A judicial finding of past racial discrimination was 
made against the University of North Carolina in Frasier 
v. Board of Trustees of the University of North Carolina, 
134 F. Supp 589 (M.D. N.C. 1955). The three-judge 
district court in Frasier, supra, found that the University 
had unconstitutionally discriminated against three black 
applicants in connection with their attempts to enroll in 
the undergraduate school of the University. The district 
court's finding was based upon a resolution of the Board 
of Trustees of the University which stated that

The State of North Carolina having 
spent millions of dollars in providing 
adequate and equal educational facili­
ties in the undergraduate departments 
of its institutions of higher learning 
for all races, it is hereby declared to 
be the policy of the Board of Trustees 
of the Consolidated University of North 
Carolina that applications of Negroes 
to the undergraduate schools of the three 
branches of the Consolidated University 
be not accepted. at 134 F. Supp. 590.

This finding of past racial discrimination satisfies the

- 25



requirement of a governmental finding insisted upon by 
Justice Powell and certainly permitted by Justice Brennan 
and the three Justices joining in his opinion in Bakke.
The three-judge court also noted in footnote 1 of their 
opinion that

Segregation of the races in the public 
schools of the state, provided for child­
ren between the ages of 6 and 21 years, 
is directed by Article IV, Section 2 of 
the State Constitution; but the defendants 
contend that this provision does not apply 
to the University, we need not pass on 
this contention because, as we have said, 
the Board of Trustees acted under the 
authority conferred upon them by the 
Constitution and laws of the State when 
they excluded Negroes from the under­
graduate schools of the University. at 
134 F. Supp. 591, n. 1.

Thus, judicial findings exist with respect to discrimina­
tion by both the State of North Carolina and the University 
of North Carolina.

Additional judicial findings of racial discrimination 
by the University of North Carolina and the State of North 
Carolina were made in Adams v. Richardson, 356 F. Supp. 92 
(D.C. D.C. 1973), modified, 480 F.2d 1159 (D.C.Cir. 1973).
In Adams v. Richardson, supra, the district court first 
found that the United States Department of HEW had concluded 
North Carolina was operating a racially segregated system

26



of higher education in violation of Title VI of the Civil 
Rights Act of 1964, 42 U.S.C. §2000d et seq. Pursuant 
to 42 U.S.C. §2000d-2, agency action by HEW, under 
42 U.S.C. 2000d, is subject to judicial review in accord­
ance with the provisions of the Administrative Procedure 
Act, 5 U.S.C. §§701-706. Agency action by HEW with re­
spect to a finding of racial segregation by the University 
of North Carolina is taken in full recognition of the 
right of the State of North Carolina to present opposing 
evidence and otherwise enjoy the procedural rights to 
which parties affected by agency action are entitled. See 5 
U.S.C. §706 (2) (D) , (E) , and (F) . Thus, the finding of 
racial segregation made by HEW and referred to in Adams v. 
Richardson, supra, satisfies the requisites of due process 
and are thus well within the scope of governmental findings 
referred to by Justice Powell in his Bakke opinion.

In Adams v, Richardson, supra, the district court also 
noted that HEW, prior to February, 1970, requested North 
Carolina, by letter, to submit a desegregation plan within 
120 days or less, and that North Carolina had failed, for a 
period of three to four years, to submit such a desegrega­
tion plan. In ordering HEW to commence enforcement action 
against North Carolina the district court implicitly found

- 27



that there was sufficient substance to HEW's finding that 
the University of North Carolina was maintaining racial 
segregation to warrant its order directing HEW to enforce 
the provisions of Title VI, §2000d against the State of 
North Carolina. Although the Court of Appeals for the 
District of Columbia Circuit modified the district court's 
order so as to permit HEW to request North Carolina, and 
other delinquent states, to file desegregation plans for 
higher education within 120 days rather than requiring HEW 
to commence enforcement action, that court did not, in its 
review of the record, find that there was insufficient 
evidence in support of HEW's finding of racial segregation 
by the University of North Carolina to warrant directing 
HEW to require the submission of desegregation plans by 
the University. These judicial findings constitute an ad­
equate basis for the University's institution of remedial 
programs respecting the composition of the Campus Governing 
Council and the Student Honor Court.

The HEW findings of 1970, referred to in Adams v. 
Richardson, supra, as well as HEW findings of racial segre­
gation and discrimination by the University of North 
Carolina, dated May 21, 1977, attached as an Appendix herein, 
constitute additional governmental findings of past racial

28



discrimination. Judicial notice of the 1970 HEW findings, 
referred to in Adams v. Richardson, supra, can be taken 
by this Court since the records in the Adams case are 
related to the issues upon appeal here. See Paul v. Dade County, 
419 F.2d 10, 11 (5th Cir. 1969); certiorari denied, 397 
U.S. 1065 (1970); Granader v. Public Bank. 417 F.2d 75, 82 
(6th Cir. 1969), certiorari denied. 397 U.S. 1065 (1970);
Lambert v. Conrad. 308 F.2d 571 (9th Cir. 1971). Judicial 
notice of the 1975 and 1977 HEW findings, which are imple­
mentations of the Court of Appeals order in Adams v.
Richardson, supra, can be taken on the basis that they are 
official orders, proceedings, and acts. See Nader v.
Allegheny Airlines. Inc., 512 F.2d 527, 544 (D.C.CLr. 1975); 
Broussard v, Patton. 466 F.2d 816, 820 (9th Cir, 1972), 
certiorari denied. 410 U. S. 942, rehearing denied, 411 
U. S. 923 (1973) .

The former provisions of Article IX, Section 2 of the 
North Carolina State Constitution, referred to in footnote 
1 of the district court's opinion in Frasier v. Board of 
Trustees, supra, constitute, for purposes of Justice 
Powell's opinion in Bakke, a governmental finding, as well 
as an admission,of a constitutional and legislative purpose 
by the State of North Carolina to discriminate against

29



blacks in the field of education. That constitutional
provision, whose application to higher education in the 
State was an issue which the court in Frasier v. Board 
of Trustees of the University of North Carolina, supra, 
avoided deciding, was made, by its terms, applicable to 
students between the ages of 6 and 21 years of age. The age 
of twenty-one is the normal age at which graduation from 
college occurs. Thus, there is extensive proof of past 
racial discrimination against black students by the State 
of North Carolina and the University of North Carolina.

As a result of the University's prior racial dis­
crimination against blacks, which was part of a massive 
and pervasive scheme throughout the State of North 
Carolina to deny blacks equal education opportunities, 
see Swann v. Charlotte-Mecklenburg Board of Education,
402 U. S. 1 (1971); Wheeler v. Durham Board of Education, 
326 F.2d 759 (4th Cir. 1964), the institution of special 
provisions to insure that blacks, during the transition 
from a dual system of education to a unitary system,have 
adequate representation on the legislative and judicial 
bodies governing the conduct and activities of students 
on campus was reasonable and permissible. Indeed, it was 
mandatory if necessary to insure an academic environment

30



free of the effects of racial prejudice. Certainly, the 
affidavit of Joseph Stallings confirmed that the need to 
eliminate the perception that the Honor Court was not 
fair to black students was the basis for the provision 
allowing an accused before that court to insist that four 
out of the seven judges be members of his, or her race.
In extending that privilege to all persons accused, ir­
respective of the race ‘of the accused, the student legislature 
provided guarantees, that it felt were necessary under the circum­
stances, which were least intrusive upon the rights of persons 
of whatever race. Thus, the Instrument of 1974 was clearly 
reasonable and not excessive. Similarly, Richard Epps,
President of the student body at the University during 197 2- 
73, stated in his affidavit that the provision for "minimum 
racial and sexual representation" reflected the need to have 
a Campus Governing Council that "would be broadly representa­
tive of diverse groups on campus." Obviously, a history of 
past racial discrimination and segregation at the University 
of North Carolina could reasonably be expected, by virtue 
of the strong feelings of that part of the student popula­
tion harboring racial prejudice engendered as a result of 
de jure laws requiring segregation of the races, to create

31



an environment in which blacks might be excluded from the 
Campus Governing Council or an environment in which black 
defendants before the Honor Court might be exposed to 
discriminatory treatment. The possibility of such treat­
ment is not unlikely given the extensive nature of the 
racial discrimination which occurred at all levels in 
North Carolina.

• This Court can take judicial notice of the pervading 
nature of the racial segregation which previously existed 
in North Carolina. See United States v. Grimes. 299 F. Supp. 
289, 294, fn. 3 (N.D. Ga. 1964). Moreover, just as the First 
Circuit has taken judicial notice of the fact that enforced 
busing in the South Boston public schools received great 
publicity and created widespread racial resentment amongst 
many citizens, United States v. Griffin, 525 F.2d 710, 711 
(1st Cir. 1975), this Court can take judicial notice that 
some measure of racial animosity among students may exist as 
a result of segregated conditions previously mandated by the 
laws of the State of North Carolina. Moreover, this Court 
can also judicially notice the substantial probability that 
racial friction among students may occur in the throes of 
the University's efforts to dismantle a dual system of higher

32



education and convert to a unitary system. See, for 
example, Armstrong v. Board of Education of City of 
Birmingham, 323 F.2d 333, 361 (5th Cir. 1963), where 
judicial notice was taken of the existence of law-abid­
ing citizens in Alabama as well as of the existence of 
violence and disorder there. See also Dowell v. School 
Board of Oklahoma City Public Schools. 244 F. Supp. 971,
975 (W.D. Okla. 1965), affirmed in part, Board of Education 

Oklahoma City Public Schools Independent District No.
89 v. Dowell, 375 F.2d 158 (1967), certiorari denied 387 
U. S. 931 (1967), where judicial notice was taken of 
resistance in all-white communities to blacks who sought 
to obtain housing in the communities, and Alex v. Allen,
409 F. Supp. 379, 388 (W.D. Pa. 1976) .

That the possibility of racial friction among students 
and with members of the staff of the University is sub­
stantial is confirmed by the University's pointed refusal 
to provide HEW, pursuant to request, with information re­
garding such problems. For example, on pages 15-16 of 
the 1975 HEW report, submitted to the Governor of North 
Carolina, HEW says that the University's

-33



Semi-Annual Report did not contain the 
promised summary of The University's 
experience with regard to racial discrim­
ination in the area of student access to 
facilities and services. When queried 
...about this failure... (the University)
...offered no explanation for the omission.
Instead,...(it) summarized the experience 
by explaining that The University was 
relying on complaints to identify prob­
lems in this area and that there had been 
no complaints during the reporting period.

HEW concluded, on page 16 of their report, that the University's 
"explanation was not sufficient to indicate that The 
University acted during the reporting period to fulfill 
the promise made in the Plan." In an earlier part of the 
HEW report, appearing also on page 15, HEW noted that each 
Chancellor of each constituent institution of the University 
will be asked to designate a responsible officer to inves­
tigate and report on instances of racial discrimination 
within the institution.

These considerations are more than adequate to demon­
strate that the University, taking reasonable steps to bring 
itself within compliance of Title VI of the Civil Rights 
Act of 1964 and acting generally to effect a transition 
to a unitary public system of higher education within the 
State of North Carolina, employed remedial measures, with 
respect to the racial composition of the Campus Governing 
Council and the Honor Court, that were precisely tailored

34



to reflect its legitimate interests and that were the 
least restrictive means infringing upon the interests of 
other persons. Such actions satisfy constitutional re­
quirements .

In particular, the remedial, race—conscious measures 
adopted by the University satisfy Justice Powell's alterna­
tive requirement in Bakke that such measures be based upon 
governmental findings of discrimination by the University, 
or by society, against the racial group preferred by the 
race-conscious program (of course, with respect to the Honor 
Court there is no particular racial group preferred by the 
1974 Instrument). Judicial findings, such as referred to 
herein, of a de jure system of racial segregation created 
and maintained by the State of North Carolina are sufficient 
findings of societal discrimination to provide constitutional 
support for the validity of the University's rules govern­
ing the composition of the Campus Governing Council and the 
Student Honor Court. These programs obviously satisfy 
Justice Brennan's requirement that they "must serve im­
portant governmental objectives and must be substantially 
related to achievement of those objectives." 57 L.Ed.2d 
814.

Moreover, the constitutional right of the University to 
impose the rules, challenged here, prescribing the composition

35



As a final point, this Court should note that neither 
Justice Powell's opinion in Bakke nor that of Justice Brennan 
opposed the use of goals or quotas, stated in racial terms, 
when it was justified hy the scope of the prior discrimination. 
Bakke, supra, 57 L.Ed.2d at 769-70 and at 57 L.Ed.2d 826-27. 
Powell approved, in Bakke, at 57 L.Ed.2d 778-80, quotas- used in

cases such as Bridgeport Guardians, Inc, v. Bridgeport Civil 
Service Commission, 482 F.2d 133 (2d Cir. 1973); Carter v. 
Gallagher. 452 F.2d 315 (8th Cir. 1971), modified on rehearing 
en banc. 452 F.2d 327 (8th Cir.), certiorari denied, 406 U. S. 
950 (1972); Contractors Association of Eastern Pennsylvania v. 
Secretary of Labor. 442 F.2d 159 (3rd Cir.), certiorari denied, 
404 U.S. 954 (1971), Associated General Contractors of 
Massachusetts, Inc, v. Altschuler, 490 F.2d 9 (1st Cir. 1973), 
certiorari denied, 416 U.S. 957 (1974), and United Jewish
Organizations v. Carey. 430 U.S. 144 (1977). Moreover, these 
were cases in which remedial quotas or goals, or ceilings, based 
upon race, were used on behalf of persons who had not been the 
victims of discrimination.

In short, the University's race-conscious programs assailed 
here are substantial, constitutionally permissible and of a 
nature which the University can reasonably believe may be 
necessary in order to bring it into compliance with the Title VI 
and the equal protection clause of the Fourteenth Amendment.

41



C. The University's Programs Insuring 
Adequate Representation of Different 
Racial Groups on the Campus Governing 
Council and the Student Honor Court 
Are Constitutionally Permissible As 
Means for Insuring Diversity.

In his opinion in Bakke, Justice Powell recognized that 
a University has a substantial, constitutionally permissible 
interest in the attainment of a diverse student body. Indeed, 
as he noted,

the "nation's future depends upon leaders 
trained through wide exposure to the ideas 
and mores of students as diverse as this 
Nation of many peoples." at 57 L. Ed.2d 
750.

Diversity thus constituted a substantial contribution to 
academic freedom. Since academic freedom was a "special 
concern of the First Amendment," Bakke, 57 L. Ed.2d at 785, 
Justice Powell concluded that a university's goal in seeking 
diversity within its student body was a constitutionally per­
missible purpose. As such, he further concluded, the interest 
in diversity is a compelling interest justifying race-conscious 
programs that permit race to be considered merely as a "plus" 
factor in the competition for admission to a university.

In Bakke, the Supreme Court was concerned with a univer­
sity's interest in diversity only insofar as it involved 
admissions criteria. Hence, the Supreme Court, in Bakke, never 
explicitly considered the issue of whether a university's in­

42



terest in diversity extended to the racial composition of 
student organizations. Obviously, however, a university con­
sists of its own sub-organizations as well as student organi­
zations. Thus, a university's interest in diversity must, of 
necessity extend also to its student organizations. Certainly, 
it is impossible to disentangle a university's general interest 
in diversity with respect to the composition of its student 
body from a more specific interest of the university in diver­
sity within the membership and governing councils of student 
groups. Obviously, the one impacts upon the other. Accordingly, 
it must be concluded that a university has a constitutionally 
permissible interest in obtaining racial diversity on the 
governing councils of its various student organizations. To 
hold otherwise would be to strip Justice Powell's opinion in 
Bakke of all meaning and significance. In the instant context, 
it is readily apparent that the University has an interest in 
diversity of the composition of the governing elements in its 
officially sanctioned student organizations. Moreover, the 
University has acted to further its interests in diversity.

Of course, the particular type of diversity being pro­
moted by the University's race-conscious programs must not be 
unreasonable or not tailored to reflect its specific interests 
in securing diversity. Moreover, the University's race-conscious 
programs would also be vulnerable to challenge if it were shown

43



that they were not, as a practical matter, effective ways of 
securing the desired diversity. These avenues of attack, 
however, are foreclosed by the nature of the facts in the 
instant case as they have been developed in the record.

The importance of the Honor Court lies in its mandate to 
do justice. That is its raison d'etre. Secondary to that but 
still of paramount importance, the Honor Court is the type of 
institution which must be perceived to be doing justice. That 
is a critical purpose. It is to this latter purpose that the 
affidavit of Joseph Stallings was addressed. In an atmosphere 
in which there are significant differences in culture between 
racial groups on a campus, it is clearly permissible, especial­
ly if it is likely that these differences will impinge upon 
an accused's right to a fair trial or will affect the capacity 
of the University to insure representation of all groups, for 
the University to take steps which it believes are reasonably 
necessary to secure justice and fair representation of all.
If diversity of representation on the Honor Court is an effect­
ive means of eliminating a differential impact which might lead 
to a miscarriage of justice, then rules requiring that diversity 
cannot be prohibited.

Moreover, if the absence of such diversity impinges upon 
the University's capacity to attract minority students to its 
predominantly white campuses at a time when it is under orders

44



from HEW to eliminate its dual educational system for blacks 
and whites, then the University has an additional legitimate 
purpose for trying to achieve diversity. Lawful attempts to 
comply with valid governmental mandates by federal agencies 
charged by Congress with the responsibility for enforcing 
Title VI can hardly be disallowed. The University's effort 
to obtain diversity falls within this category.

45



II. AS AN ALTERNATIVE WAY OF DECIDING THE COMPLEX AND 
PERPLEXING ISSUES RAISED IN THIS CASE, THE COURT 
SHOULD REMAND THE ACTION TO THE DISTRICT COURT FOR 
FURTHER FACT FINDING AND DEVELOPMENT OF THE RECORD.
A. Defendants Are Entitled to Have the District Court 

Weigh the Evidence of Prior Racial Discrimination 
By the State of North Carolina and the University 
of North Carolina at Chapel Hill.
The opinions by Justice Powell and Brennan demonstrate 

that racial classifications are not per se forbidden by statutory 
or constitutional law. Justice Powell specifically notes that a 
State has a "legitimate and substantial interest in ameliorating, 
or eliminating where feasible, the disabling effects of identified 
discrimination." Bakke, supra, at 57 L.Ed.2d 782. Justice Brennan's 
opinion is to the same effect at 57 L.Ed.2d 816-822. Thus, if the 
defendants can show that the use of race in the challenged provisions 
is necessary to alleviate the effects of present and prior discri­
mination against minorities, they are entitled to prevail. Since, 
defendants are entitled under Bakke to make such a showing, they are 
entitled to a remand to permit the district court to take evidence 
relating to present and prior racial discrimination against blacks 
caused by the University. Unlike the University of California at 
Davis, whose medical school opened in 1968, the University of North 
Carolina has been in continuous,existence ever since the year 1795. 
During most of this time, it functioned within a system of de_ jure 
discrimination. Moreover, it had itself an official policy of dis­
crimination. See Fraiser v. Board of Trustees of the University 
of North Carolina, supra.

46



Both Justices Brennan and Powell dis-cuss, in Bakkef the
school desegregation cases in the Supreme Court as authority for 
the position that racial classifications are valid where they are 
"designed as remedies for the vindication of constitutional entitle­
ment." 57 L.Ed.2d at 777-78, and 816-17. One of the very first 
cases so cited, Swann v. Charlotte-Mecklenburg Board of Education. 
402 U.S. 1 (1971), involved the elementary and secondary school 
system of two North Carolina communities. Justice Powell notes 
that these cases are "judicial determination^] of constitutional 
violation." Id_. at 778. In light of the mandate of the Supreme 
Court to consider this case in light of the decision in Bakke, the 
district court must be afforded an initial opportunity to take evi­
dence on the existence of such judicial determinations of discrimi-

J ._ /nation by the University.
As proof of the existence of racial discrimination at the 

University of North Carolina, the additional defendants intend to 
introduce into evidence findings made by HEW since 1970. These 
findings satisfy Justice Powell's requirement in Bakke that "a 
governmental body must have the authority and capability to es­
tablish, in the record, that the classification is responsive to 
identified discrimination", at 57 L.Ed.2d 783. The findings, of 
HEW, included here in an Appendix, show that the University has 
discriminated in the past against blacks.

1 / See McKissick v. Carmichael, 187 F.2d 949 (4th Cir. 1950),
Frasier v. Bd. of Trustees, 134 F.Supp. 589 (M.D.N.C. 1955). 
For more recent, ongoing litigation involving the school 
system of the State of North Carolina, see Adams v. Richardson, 
480 F.2d 1159 (D.C. Cir. 1973).

47



A remand for trial below is necessary to give the district
court an opportunity to examine such evidence.

B. A Remand Is Appropriate for the Taking of Evidence 
On the Extent to Which the University's Programs 
Respecting the Composition of the Campus Governing 
Council and the Student Honor Court Furthers the 
University's Interest in Diversity.
During the trial on the merits in Bakke. the Medical School 

attempted to justify its remedial use of race in its admissions pro­
gram by alleging that its program served the interest of attaining a 
diverse student body. Justice Powell found that this purpose was 
"clearly a constitutionally permissible goal," 57 L.Ed.2d at 781. 
Because of the summary nature of this court's earlier disposition 
of this action, the defendants have not been afforded an opportunity 
to demonstrate the manner in which the challenged provisions contri­
bute to diversity with the University.

Recognition by the Supreme Court of the importance of di­
versity in an academic setting is long standing. In Sweatt v .
Painter, 339 U.S. 629 (1950), which was quoted in Bakke, 57 L.Ed.2d 
at 786, the Supreme Court emphasized that a law school's effective­
ness at training future lawyers was a function of the extent to which 
it interacted with persons who had an impact upon the law and its 
development. Sweatt v. Painter, supra, 339 U.S. at 634. Not only 
was the importance of diversity in an educational setting acknowledged 
generally by Justice Powell in his Bakke opinion, .it was also speci­
fically noted that the interest in diversity, though powerful at
a qraduate school level, holds an even greater sway at the under-

1 /
graduate level. Bakke, 57 L.Ed.2d at 786.

2_/ The President of Princeton University has recognized that the valuable interaction that takes place where the student body 
is diverse occurs in a variety of ways. "For many, however,

- 48 -



In the record developed below, the Stallings Affidavit, 
paragraph 2, indicates that the reason for establishing the pro­
vision for racial representation on the Honor Court; was to eliminate 
a common, damaging perception of injustice committed by that court 
in its adjudications. It can be shown that such perceptions, if not 
reversed, can frustrate the University's efforts to create diversity.

The Epps Affidavit states that one of the reasons behind 
the Campus Governing Council provision is to ensure that the diverse 
groups on campus will be represented in the student body that makes 
rules governing the affairs of students. Thus, the interest behind 
this provision, as is true of the interest behind the provision con­
cerning the Honor Courts is one recognized as being constitutionally 
permissible by Justice Powell in Bakke.

If this Court orders a remand of the action to the district 
court for further fact finding, then the defendants will be able to 
demonstrate the extent to which the provisions regarding the Honor 
Court and the Campus Governing Council further the permissible and 
substantial interest of the University in maintaining a diverse 
student body.

C. Defendants Are Entitled Under Bakke to Present 
Additional Evidence Concerning Other Interests 
Which the University Has For Instituting and 
Maintaining Its Race-Conscious Programs.
Besides its interest in remedying the effects of past dis­

crimination by the University and furthering diversity, the University 
has other compelling legitimate interests in maintaining its race-con-

2/ Continued
the unplanned, casual encounters ... in class affairs or student 
government can be subtle and yet powerful sources of improved 
understanding and personal growth." Quoted in Bakke, 57 L.Ed.2d at 785, n.48 [emphasis added].

49



scious programs. For example, the University has an interest in 
bringing itself into compliance with the HEW orders and findings. 
See Appendix attached hereto. Additionally, the University has 
an interest of insuring that students tried before the Honor Court 
are able to obtain justice before a panel of impartial judges.
With respect to these interests and others, defendants deserve an 
opportunity to present evidence to the district court. Upon re­
mand, defendants can also present evidence to show that the extent 
of the University's race-conscious programs is commensurate with 
the scope of the University's legitimate interests. These con­
siderations warrant a remand of the action to the district court.

50



III. THE STANDARDS OF ELEMENTAL DUE PROCESS REQUIRE A REMAND 
OF THIS ACTION IN ORDER TO ALLOW DEFENDANTS-APPELLEES 
THE OPPORTUNITY OF A TRIAL ON THE MERITS

Courts must use their power to grant summary judgment 
sparingly so "that the appellee is not deprived of a trial of 
a genuine issue of material fact underlying his claim or defense."6 
Pt.2 Moore's Federal Practice K56.27 [2] at 56-1562. This was precisely 
the vice with this Court's judgment vacated by the Supreme Court.
By moving for summary judgment on the grounds of mootness, plaintiffs' 
lack of standing, and lack of justiciability, defendants did not 
thereby concede that there were no triable issues of facts with 
respect to those matters on which plaintiffs were required to prevail. 
Crane v. Sun Insurance Office, Ltd.. 375 F.2d 670 (4th Cir. 1962). 
Despite the fact that the district court did not reach the merits 
but decided the action on grounds of mootness, justiciability, and 
lack of concrete injury to the plaintiffs, this Court decided the 
case on the merits adversely to defendants.

In light of the issues raised previously by the defendants 
on their motion for summary judgment the defendants were not on notice, 
at the time this Court rendered its previous decision, that this 
Court would render a decision based on the merits. If the Court 
were to let stand its previous decision directing the entry of sum- 
mary judgment for the plaintiffs, defendants would also be deprived 
of an opportunity to show the existence of triable issues of fact 
made relevant by Bakke. Such a denial is unlawful and prohibited 
by Bakke. See also Dabney v. Cunningham, 317 F. Supp. 57 (ED. Va.
1970).

51



As an additional reason for not reinstating its earlier
judgment in favor of plaintiffs, this Court should remand the action 
to the district court for the simple reason that, when constitutional 
questions are presented, summary judgment should not be granted if the 
record is inadequate. See 6 Pt.2 Moore's Federal Practice 5156.17 
[10] n.l, 2, at 56-772 and cases cited therein. Thus, the Court 
would serve the purpose of proper constitutional adjudication if 
it were to remand the action to the district court. Since the " [in­
validity] of a challenged statute or practice] may be shown . . .
by facts established by evidence", Weaver v. Palmer Bros. Co., 270 
U.S. 402, 410 (1926), Planned Parenthood of Central Missouri v. 
Danforth. 428 U.S. 52, 75-79 (1976), Craig v. Boren, 429 U.S. 190- 
204 (1976), this Court is obligated to remand this case to the 
District Court so that it may receive and assess evidence on the 
constitutional issues raised by the facts alleged upon the record.
E .q., Chastleton Corp. v. Sinclair, 264 U.S. 543, 548-49 (1924); 
Borden1s .Farm Products Co. v. Baldwin, 293 U.S. 194, 211-213 (1934); 
Nashville. Chattanooga & St. Louis Rv. v. Walters, 294 U.S. 405, 
415-16, 432-33 (1935); Polk Co. v. Glover, 305 U.S. 5, 9-10 (1938).

52



IV. THIS ACTION SHOULD BE DISMISSED BECAUSE OF THE LACK OF 
INJURY TO PLAINTIFFS AND OTHERS

In Warth v. Seldin. supra, the Supreme Court outlined in 
detail the standing requirements applicable in the federal court.
In Warth, various organizations and individual residents of Rochester, 
New York commenced on action against the neighboring suburban town 
of Penfield and officials of the town. They claimed that the zoning 
ordinance of the town excluded persons of law and moderate income 
from living in the town, in derogation of their rights under the 
Constitution of the United States and federal statutes. The Supreme 
Court affirmed the judgment of the Court of Appeals ordering dis­
missal of the action:

Proceeding from the general premise that the standing 
requirement simply represents the necessity for the plaintiff to 
allege a

"'personal stake in the outcome of the 
controversy' as to warrant his invoca­
tion of federal court jurisdiction and 
to justify exercise of the court's re­
medial powers on his behalf", Warth v .
Seldin. 422 U.S. 498-99,

the Court went on to observe that
A federal court's jurisdiction there­
fore can be invoked only when the plain­
tiff himself has suffered some threatened 
or actual injury resulting from the puta­
tively illegal action. 422 U.S. at 499.

This standard was not satisfied, the Court noted, at 499, if the harm as
serted is a "'generalize grievance' shared in substantial equal
measure by all or a large class of citizens". Since in Warth. the

- 53



plaintiffs had not been excluded from the town of Penfield and had 
not presented sufficient evidence to show that they would have been 
excluded, they lacked standing to raise the rights of others who 
had in fact been excluded from residing in the town of Rehfield.

With respect to plaintiffs' attempt in Warth, supra, to 
assert their standing on the basis on their status as taxpayers 
of the City of Rochester, this too was found insufficient. Plain­
tiffs were unable to allege and show a nexus, between their status 
as taxpayers of Rochester and the alleged exclusionary practices 
extant in Penfield. Moreover, the plaintiffs in Warth were unable 
to show that the challenged practices interfered with a relation­
ship between them and persons whose rights were allegedly violated 
by the practices. Additional reasons, not relevant here, were 
also assigned by the Court for its holding that the plaintiffs in 
Warth lacked standing.

The above mentioned factors are decisive here. Plaintiffs 
have not, by virtue of the University's rules, been denied a fair 
trial before the Honor Court. Similarly, plaintiffs have not beer- 
denied an opportunity to be considered for membership on either 
the Honor Court or the Campus Governing Council. Indeed, plaintiffs 
have never presented themselves for membership on these organizations. 
Moreover, the University's attempt, by the use of the race-conscious 
measures attacked here, to bring itself into compliance with Title 
VI and the Fourteenth Amendment, does not violate any of plaintiffs 
rights or interests. Furthermore, plaintiffs do not assert that 
these measures have caused them to suffer economic losses or to lose 
business and professional advantages, as was the case in Trafficante



v. Metropolitan Life Insurance Co., 409 U.S. 205 (1972). This is
also not a case where standing should be accorded to plaintiffs 
as a necessary means of protecting the rights of third parties.
See, e.g. Doe v. Bolton, 410 U.S. 179 (1973); Griswold v. Connecticut, 
381 U.S. 479 (1965). In the absence of any specific injury to them­
selves which plaintiffs can identify, and in the absence of a need 
to have plaintiffs vindicate the rights of third parties who might 
otherwise be unable to protect their own rights, this Court should 
dismiss this action for lack of standing.

On a different but somewhat related point, this Court 
should also take cognizance of the fact that the remedial programs 
assailed here by the plaintiffs did not result in a "fencing out 
of the white population from participation in the political processes". 
United Jewish Organizations v. Carey, 430 U.S. 144 (1977). See also 
La.u v ■ N ichols, 414 U.S. 563 (1974). This point is important in 
assessing the extent to which the plaintiffs, assuming that they had 
presented themselves as candidates for selection to the Honor Court 
or the Campus Governing Council, could have complained, even under 
these circumstances, of any legally cognizable injury being in­
flicted upon them by the University's practices and programs.
See Lau v. Nichols, supra, and United Jewish Organizations v. Carey, 
supra. The inability of plaintiffs to convert any remote, conse­
quential or collateral impact upon them arising from the University's 
use of its remedial programs into an injury recognized in law dooms 
the possibility of plaintiffs either having standing or a cause 
of action. Indeed, it raises a serious concern over whether plain­
tiffs have a case or controversy within the meaning of Article III.

- 55



See Warth v. Seldin, supra, 422 U.S. at 498-501. For these reasons, 
this Court should dismiss this action.

V

56



CONCLUSION

The additional defendants have demonstrated in their 
brief that the goal of remedying the prior racial discrimination 
of the University of North Carolina against black students and 
black applicants for admission constitutes a compelling govern­
mental interest justifying the University's race-conscious pro­
grams. Additionally, these defendants have shown that the Uni­
versity's policies concerning the Campus Governing Council and 
the Student Honor Court are justifiable means to bring it into 
overall compliance with Title VI of the Civil Rights Act and with 
specific orders and requests of HEW, based on its findings. More­
over, it has also been established herein that the right which 
the University accords to students brought before the Student 
Honor Court to have four out of the seven judges be members of 
their own race or sex is necessary to secure justice, as well as 
the appearance of justice, for such students. As such, it is 
a program that serves substantial and constitutional governmental 
objectives. The additional defendants have also demonstrated 
that a judgment entered by this Court for plaintiffs would deprive 
defendants of their right, under the due process clause, to an 
evidentiary hearing on the merits, a hearing which they have not 
yet received despite four years of litigation. Contrariwise, 
it has been demonstrated that a judgment by this Court dismissing 
the action is a proper exercise of this Court's authority since

- 57'



plaintiffs have failed to satisfy their burden of pleading and 
proof.

Finally, the additional defendants have shown that this 
action should be dismissed inasmuch as plaintiffs, who have suf­
fered no injury from the measures challenged here, have no standing 
to bring the instant action.

For the reasons stated herein, defendants are entitled 
to judgment dismissing the action or, in the alternative, are 
entitled to a remand of the action to the district court for the 
purpose of further fact finding or trial. Accordingly, defendants 
request this Court to dismiss the action or to remand it to the 
district court for further hearings.

Respectfully submitted,

JULIUS CHAMBERS 
CHARLES BECTON JAMES C. FULLER, JR.
CHAMBERS, STEIN, FERGUSON &
BECTON, P.A.
Suite 730 East Independence Plaza 
951 South Independence Boulevard 
Charolette, North Carolina 28202 
(704) 375-8461

KAREN GALLOWAY 
Post Office Box 720 
Chapel Hill, North Carolina 27514 
(919) 967-7066

JACK GREENBERG 
JAMES M. NABRIT, III 
NAPOLEON B. WILLIAMS, JR.
JUDITH REED 
10 Columbus Circle 
Suite 2030
New York, New York 10019 
(212) 586-8397

ATTORNEYS FOR ADDITIONAL DEFENDANTS- 
APPELLEES

Dated: November 10, 1978

-, 58 -



CERTIFICATE OF SERVICE

I hereby certify that on the 11th day of November, 1978, I 
served 2 copies of the Brief for the additional defendants-appellees 
by depositing same in the United States mail, first class mail, 
postage prepaid, addressed as follows: Rufus L. Edmisten and Andrew
Vanore, Attorney Generals's Office, Post Office Box 629, Raleigh, 
North Carolina, Hugh J. Beard, Jr., 411 Law Building, Charlotte, 
North Carolina, this 11th day of November, 1978.

Attorney for Additional Defendants - 
Appellees