Memorandum on Involvement in Affirmative Action Cases Post-Bakke

    MEMORA 
NDUM 

December 28, 1978 

To +: JACK GREENBERG 

FROM: NAPOLEON B. WILLIAMS, JR. 

RE =: affirmative 
action And Reverse piscriminati

on 

Note: In light of Bakke it has become important for the Legal 

Defense Fund to intervene in a number of "reverse discriminatio
n" 

cases in order to raise the defense of past racial discriminatio
n 

as a support for the affirmative 
action. With the exception of 

the litigation in Detroit, the parties to these cases are reluc- 

tant to make this defense. It is also becoming apparent in Bakke 

type cases that the cases will be decided upon their own special 

facts. For aifferent categories 
of cases there may be different 

legitimate 
interests that can sustain the affirmative 

action under 

challenge. 
Hence an adverse decision in one type of case may have 

a limited impact upon our chances of success with respect to 

another type of reverse discriminati
on case. For example, 2 loss in 

Kaiser Aluminum & Chemical Corp. V- Weber is likely to have limited 

impact on the police case in Detroit. Other situations 
like this 

are bound to develop, especially when a defense can be based upon 

the new EEOC affirmative 
action regulations. 

Listed below is a summary of some of the affirmative 

action cases in which we are involved. 

1. Bostick V- Byrd (Federal pistrict Court in North 

Carolina. 

plaintiffs 
in this action seek to invalidate 

the affir- 



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Memorandum 
December 28, 1978 
Page 2 

mative action admission program at the University of North 

Carolina School of Law. 

LDF has been informally advised that the court will 

grant its motion to intervene. The intervention is necessary 

because of the refusal of the University and the State of North 

Carolina to defend the affirmative action program on the basis of 

past discrimination against black applicants, LDF also seeks to 

justify the School's admission program on the basis that there 

are compelling legitimate reasons which support the program, such 

as the need for diversity and the need to provide lawyers for 

black residents, and other residents, in North Carolina. 

2. Uzzell v. Friday (Court of Appeals for the 

Fourth Circuit). 

The case also involves the University of North Carolina. 

The Court of Appeals is presently considering whether to uphold 

University's practices in which one-third of the seats on the 

Student Council is set aside for black students and four-sevenths 

of the seats on the Student Honor Court can be filled by students 

belonging to the same race or sex as the person being tried by the 

Court. 

The following issues have been raised by LDF in this 

case: (1) the effect of governmental findings of past dis- 

crimination by the University against blacks; (2) the impact of 

HEW's orders requiring the University to eliminate its dual 

school system in higher education; and (3) the right of the 

University to provide representation of all students on itslegis- 



Memorandum 
December 28, 1978 
Page 3 

lative bodies and to provide a judicial tribunal that is free of 

racial and sexual bias. 

3. Driscoll v. Regents of the University of California 

(District Court) 

This action sought to invalidate the University of 

California's policy which allegedly provides more advantageous 

terms of financial assistance to black students than to white stu- 

dents. The action was dismissed for procedural reasons which have 

nothing to do with the underlying merits of the case, 

4. Kaiser Aluminum & Chemical Corp. v. Weber (United 

States Supreme Court) 

In this action a white employee challenges the validity 

of an affirmative action program which was allegedly instituted 

without proof of past discrimination against blacks. 

The issues raised in this case are as follows: (1) the 

extent to which employees subject to Title VII can voluntarily 

establish, without running afoul of Title VII, affirmative action 

programs in order to counter a drastic underrepresentation of 

minorities in the workforce; (2) the extent to which a private 

employee can employ an affirmative action program utilizing quotas 

and preferences as a means of complying with the President's 

Executive Order; and (3) the extent to which an employee who has 

reason to believe that he may be in violation of Title VII on 

account of the underrepresentation of blacks may institute an 

affirmative action program.