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(v(J.LI / Court Was.h ...Sup.reme. C.t. Voted on .................. , 19 .. Argued ................... , 19 .. Assigned .................. , 19 . No. 73-235 Submitted . ....... ...... , 19 .. Announced ................ , 19 . MARCO DE FUNIS, ET AL., Appellants vs. CHARLES ODEGAARD, PRESIDENT OF THE UNIVERSITY OF WASHINGTON, ET AL. /~i­ ~,,4_~/1/ fo a-dlZ~~ II 1 U-b·-tl~r..-t--1 \ w.- &;__;rv HOLD CERT. JURISDICTIONAL MERITS MOTION AB- NOT FOR 1----.--i----.-ST_A_T-,EMr-E_N_T..----+--.---l---.---ISENT VOT- o D N POST DIS AFF REV AFF 0 D ING Rehnquist, J . ..... .......... Powell, J ... .. ... ....... Blackmun, J ................. Marshall, J . ................. White, J ..................... Stewart, J ................... Brennan, J ................... Douglas, J .................... Burger, Ch. J .... ........... ,. October 12, 1973 JBO L b- ~ l>- ~ fl1 b1S- r ~~~~~~ ~~~.4.--~~ ~Lf2y~~ ' ~ ~ . ~~~~~'1~ 1~ LUo~~5 cf ~ ~~ lll<.J._ ~fy "-( 1/lu_ ~~~ 61~ ~s-f~~~ ~ &-/ ~ ~~ ~llLSCUSS C2-z_ -~ ~ ~ ~ G,._.,f, ~ ~ ~!uuf() ~ ~ ~ ~- .L-<.-- ~- ~~~c ·CI-~~J~ of~~:~~ ~~,'-'k-~~ o-r -~~~f-/ ~~ - ~ ~ ~ ~~~ ( pfd£:...,-:2-r_~/-r._.&~ ~~~~¥ ~1--r~of~ P~~~-z_~~, No. 73-235 SUPPLEMEMTAL MEMO De Funis, et al. v. Odegaard 1. I think this case is pro~~y ~ot. This is not a class action. The plaintiffs were the student, fuis wife an~s~. The student was, pursuant to the order of the state trial court, admitted to the law ~ school he desired to attend over a year ago. He may well graduate before this Court could hear this case. Given that De-- Funis-------....___ can no ___ longer_ __prove_ injury,--- I think--- he's the wrong plaintiff to assert the constitutional issue he wants to have resolved. -2- 2, This is not,. an appeal, No state stuatute is directly M1 involved. I suppose one could dream f up an ....__- argument that a state statute somewhere provides for (and delegates the power a. for) administration of the state school system, and this lawsuit indirectly at least involves that statute. But a reed that slender won't bear the weight. The Court should .. read its appeal jurisdi~n as narrowly as possible in light of today's case loads, So, no matter what your decision----- on whether to hear this case, dismiss------ it as not---- properly an appeal - and treat it as a cert. (The parties obviously saw this coming. The opening submission, for example, is styled "Jurisdictional Statement/or in the Alternative Petition foJcertiorari" )/ . 3, I would deny cert as well (thus my recommendation is to dismiss and deny). The Court has denied cert on similar .. issues before. See p. 7 of cert pool memo. If the Court wants to take one of these racially-benign/ compensatory cases, I would wait for one in the which the court below went the way of the dissent in this case, S ..ccr··1an Mr. Justice Stowart / Mr. Justice White Mr. Justice Mar'ih3.ll 2nd DRAFT Mr. JUG~iC" Bhclcmun__­ MJ.". Ju.,tloc Powell SUPREME COURT OF THE UNITED STAT~ · Jus ..ice Behnq_uist From:J Dou6las; J. MARCO DE FUNIS ET Ar.. v. CHARLES ODEGAARD, PRESIDENT OF THE UNIVERSITqiUF~late :· ______ WASHINGTON, ET AL. Reoiroulated: ON APPEAL FROM 'l'HE SUPREME COURT OF WASHINGTON. No. 7:3-2%. Drcidcd Non'mbcr -, 19i3 Mn. JusTICE DouGLAS. with whom MR. JusTICE BREN­ NAN concurs, dissenting. This is an appeal from the Washington Supreme Court brought by a student at the Law School of the University of Washington. The appellant was initially rejected for admission at the Jaw school after ·being placed upon the school's "waiting list." He then brought this action in state court, contending that, because of a law school policy of giving favorable treatment to applicants from minority groups, he "·as denied the equal protection of law. The appellant is white. The state trial court granted appellant relief, and issued an injunction com­ manding the law school to admit him. Because of this order he was admitted. Subsequently the Washington Supreme Court reversed the trial court, sustaining against the federal constitutional challenge the law school's admissions policy. I stayed the mandate of the Washington Supreme Court pending disposition of this appeal, and the appellant has therefore remained enrolled at the law school, where he is now completing his final year. 28 U. S. C. ~ 1257 (2) provides for appellate juris­ diction in this Court of state court decisions sustaining the validity of a state "statute" against a federal consti­ tutional challenge. But putting aside the question of whether the law school's admissions policy is a state "statute" for this purpose, see H amillon v. Regents, 293 U.S. 245 (1934), we could treat the papers as a petition 2 DE FU~IS v. ODEGAARD for certiorari and grant review on that basis. 28 U.S. C. § 2103. This is the course I would follow. The 11etition raises an important question of constitu­ tional la ''" which this court has not explicitly decided. The ]a\Y school. which has no history of de jure dis­ crimination, has voluntarily adopted a program under which minority applicants-Blacks, Chicanos, American Indians, and Filipinos-are treated separately in the admissions process and arc given special consideration. This may be a state sanctioned racial classification, carrying the heaviest possible presumption of unconsti­ tutionality under the Equal Protection Clause. Loving v. Virgim:a, 388 U.S. 1. 10-11 (1967). Yet the purpose of this program is to rectify the long history of discrimi­ nation "·hich has resulted in the chronic underrepresenta­ tion of these groups in the law school and the legal profession generally, and the court below observed that the goal of this policy "is not to separate the races, but to bring them together." We said in the context of Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 16 (1971), that it would be within the broad discretionary authority of a school board to adopt such a policy to prepare students to live in a pluralistic society. The program adopted by the law school here is not unique; similar programs have been adopted by many other schools. Widely differing views have been expressed, compare O'Neill, Preferential Admissions Equalizing the Access of Minority Groups to Higher Education, 80 Yale L. J. 699 (1971), with Graglia, Special Admission of the "Culturally Deprived" to Law School, 119 U. Pa. L. Rev. 351 (1970). We should grant cer­ tiorari and put the case clown for argument and decide­ the important issues presented. <C· ;:In an Arizonn, cnse rai~ing a like question, Johnson v. Committee on Examinations, 407 U. S. 915, I dissented from denial of certiorari. ( Preliminary Memo ( ,_ October 19, 1973 Conference List 1, Sheet 1 No. 73-235 DE FUNIS, ET AL. Timely (Law School Appeal from the Applicant) Washington Supreme Court (Joint majority by Finley, v. Hamilton, Stafford, Wright, Lyttle, Utter; Wright, with ODEGAARD Stafford, concurring; Hale, (University of C .J., with Hunter dissent­ Washington ing; Hunter, with Hale, dis­ Officials) senting) - State Civil 1. The Washington Supreme Court (6-2) reversed a trial court judgment ordering appellees, University of Washington officials, to admit appellant as a first-year student at the University of Washington School of Law. This appeal presents I "----' the question whether a state law school may, consistent with the - 2 - Equal Protection and Due Process Clauses of the Fourteenth Amendment, give preference for admission solely on the basis of race to certain minority applicants to the exclusion of _I other qualified applicants. 2. FACTS: Appellant De Funis was one of 1,601 applicants for admission to the first year law school class of approximately 150 students entering in September 1971. Based upon a formula devised by the admission committee that takes into account LSAT scores, the applicant's junior senior grade. point average, and average writing test scores, appellant was assigned a Predicted First-Year Average (PFYA) of ~ He had a 3. 71 grade point average in a 4.0 system, a 582 average LSAT score, and an average writing test score of 61. (In addition, he was graduated from the University of Washington magna ~~ laude and Phi Beta Kappa; at the time of his application, he was working full-time and had earned 21 hours of straight A in graduate school, with three hours of incomplete.) Appellant's PFYA placed him in the middle group of applicants and just below those considered most promising with a PFYA of 77. Those with a 74.5 or lower PFYA were in the third and lowest priority group and were generally not given full consideration by the admissions committee. Nevertheless, 1/ - The Jurisdictional Statement also challenges this minority preference admissions policy on the ground that it violates 42 U.S.C. § 2000d, which prohibits discrimination or exclusion on the basis of race from any program or activity receiving federal financial assistance. Although appellants) claim that they raised the issue in- the state Supreme Court, that court never reached or decided the question. - 3 - 2/ all files of minority applicants were given special attention ,__..._ by the full committee, regardless of the PFYA. In its "Guide for Applicants," the law school noted that "[a]n applicant's racial or ethnic background was considered as one factor in our general attempt to conve r~- formal credentials into realistic predictions [of an] ••• applicant's ability to ---~-------- make significant contributions to law school classes and the community at la~ge," the general overall criterion for selection. J.S., at A-10. This policy reflected a University-wide policy which sought to eliminate the continued effects of past segregation and discrimination against these and other disadvantaged racial 3/ and ethnic minority groups. - In effectuating this policy, the admissions committee followed certain procedures that were the main focal point of appellants' attack.
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