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MARCO DE FUNIS, ET AL., Appellants vs.
CHARLES ODEGAARD, PRESIDENT OF THE UNIVERSITY OF WASHINGTON, ET AL.
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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. ;: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. First, less weight was attached 2/ - Minority applicants were defined by the admissions committee as Black Americans, Chicano Americans, American Indians, and Philippine Americans . Asian Americans were not placed in this special category since a significant number of them could be admitted on the same basis as general applicants. 11 "Thus, the University sought to achieve a reasonable representation within the student body of persons from these groups which have been historically suppressed by encourag- ing their enrollment within the various programs offered at the University . Policies for admission of minorities throughout the University recognized that the conventional 'mechanical' credentializing system does not always produce good indicators of the full potential of such culturally separated or deprived individuals, and that to rely solely on such formal credentials could well result in unfairly denying to .qualified minority persons the chance :~ ~ f~~~ ~~ : :::e -- ~~u~~ ;-~ ~~ ~ ~ ~~ pr.or~u!:iti e ~ . ~ ~ ' ' - 4 - to the PFYA in making a total assessment of the relative ability of a minority applicant to succeed in law school. Secondly, minority applicants were directly compared to one another but not to applicants outside of the minority group. Although the law school had no fixed minority admissions quotas, the law school included within its admitted group minority applicants whose PFYA's were lower than those of some other applicants, although the school officials maintained that all were qualified in the sense that they were capable of successfully completing the law school program. Appellant was placed in the fourth or lowest quatrile of a waiting list of 155 applicants. Of the 200 applicants invited to attend the law school, 74 had lower PFYA's than appellant; 36 of these 74 were minority applicants, 18 of whom actually enrolled in the class. Twenty-nine applicants with higher PFYA's than appellant were denied admission. The trial court found that appellant was fully qualified and capable of satisfactorily attending the law school. The trial court then concluded that, in denying appellant admission, the University discriminated against him and denied him equal protection under the Fourteenth 4/ Amendment and that he should be admitted. - 4/ -At the time of oral argument in the Washington Supreme Court, appellant was a member of the class of 1974 at the law school. The Washington Supreme Court did not consider the case moot "[d]ue to the conditions under which [appellant] was admitted and the great public interest in the continuing issues raised by this ap peal. • • . " J .s., at A-14. This mootness assessment is, of coulSe, always subject to reconsideration by this Court. There is no in dication in the briefs that appellant is not still in attendance at the law school. - 5 - 3. DECISION OF THE WASHINGTON SUPREME COURT: In a 34-page opinion summarized below, the Washington Supreme Court reversed the trial court and held that the minority admissions policy of the law school, and the denial of admission to ap- "---- - pellant, violated neither the Equal Protection Clause of the Fourteenth Amendment nor Article 1, § 12 of the Washington State ~ ---57------Constit ution. - (a) The court found that appellant had standing to bring the action. It was not persuaded by appellees' contention that the law school would not have been able to accept appellant, even if no minority students had been admitted, because all seats would probably have been filled by others higher than appellant on the waiting list. The Washington Supreme Court felt that, regardless of whether it was completely problematical whether · appellant would have been admitted, under this Court's prior standing decisions, appellant's "interest in this litigation clearly constitutes the requisite "personal stake in the outcome of the controversy necessary to request an adjudication of the merits of this case." J.S., at A-15. (b) Appellant did not make out a meritorious equal protection claim. (1) The Washington Supreme Court first held that the consideration of race as a factor in the admissions policy of a 5/ - Appellants do not challenge here another holding that the law school is not required under the Washington constitution or statutes to give an admission preference to resident over non resident applicants. - 6 - state law school is not a per ~ violation of the equal protection clause of the Fourteenth Amendment. Brown v. Board of Education, 347 U.S. 483 (1954), did not hold that all racial classifications are per se unconstitutional but only those /that are invidious, i.e. those that stigmatize a racial group with the stamp of inferiority. The preferential-admissions policy is clearly not a form of invidious discrimination since the policy's ~ ------goal is to .bring together---- and not to separate the races. Further- more, the Supreme Court has clearly held that in some circumstances a racial criterion not only may but must be used by public educa tional institutions in bringing about racial balance. ~· Green v. County School Board, 391 U.S. 430, 437-40 (1968); Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 16 (1971); North Carolina State Board of Education v. Swann, 402 U.S. 43, 45 (1971). The Constitution is color conscious to prevent the perpetuation of discrimination and to undo the effects of past 6/ segregation. 6/ "Clearly, consideration of race by school authorities does not violate the Fourteenth Amendment where the purpose is to bring together, rather than separate, the races. The 'minority' admissions policy of the law school, aimed at insuring a reasonable repre sentation of minority persons in the student body, is not invidious. Con sideration of race is permissible to carry out the mandate of Brown, and, as noted, has been required in some circum stances:' J.S., at A-21. - 7 - The Washington Supreme Court was unwilling to accept appellant's argument that these above cited cases were inapposite here since none of the students there were deprived of an education by the plan to achieve a unitary school system. In a key ruling, the court stated that "the denial of a 'benefit' on the basis of race is not necessarily a per~ vio lation of the Fourteenth Amendment, if the racial classification is used in a compensatory way to promote integration." J.S., at A-21, citing Porcelli v. Titus, 431 F.2d 1254 (CA 3 1970), cert. denied, 402 U.S. 944 (1971) (suspension of ordinary promotion system upon racial considerations); Carter v. Gallagher, 452 F.2d 315 (CA 8 1971), cert. denied, 406 U.S. 950 (1972) (affirmative court order requiring one out of every three firemen hired to be a minority until at least 20 minority firemen have been hired). (2) Because a racial classification was involved and because the minority admissions policy was certainly not benign as to non-minority applicants like appellant who are displaced by it, the Washington Supreme Court required the law school to demonstrate that its consideration of race in admitting students -- '-'- was necessary to the accomplishment of a 1 ~ ompelling state interest. (c) The Washington Supreme Court found three compelling state interests here. "In light of the serious underrepresentation of minority groups in the law schools, and considering that minority groups participate on an equal basis in the tax support of the law ( "----" \_ i school, we find the state interest in eliminating racial imbalance - 8 - within public education to be compelling." J.S., at A-24. The court disagreed with appellant that any past discrimination here has been de facto and not de jure, thereby precluding the law school from attempting to remedy racial imbalance in the student ll body and throughout the legal profession. -- The state also has an overriding educational interest in providing all law students with a legal education that will adequately prepare them to deal with the societal problems awaiting them upon graduation. -- The shortage of minority attorneys, and therefore minority prosecutors, judges, and public officials --represents an undeniably compelling state interest to encourage minorities to live within the rule of law. Not only are these state interests compelling, the court ruled, but the racial classification here is essential to their accomplishment. "[R]acial imbalance in the law school and the legal profession is the evil to be corrected, and it can only Zl "The de jure-de facto distinction is not controlling in determining the constitutionality of the minority ad missions policy voluntarily adopted by the law school. Further, we see no reason why the state interest in erad icating the continuing effects of past racial discrimination is less merely because the law school itself may have previously been neutral in the matter." J .S., at A-25. .· - 9 - / be corrected by providing legal education to those minority groups which have been previously deprived. II J oS.' at A-26. It was not enough, as appellants suggested, that the same objective could be accomplished by improving the elementary and secondary education of minority students t o· a point where they could secure equal representation in law schools through direct competition with non-minority applicants on the basis of the same academic criteria. 11 • • • This would be highly desirable, but 18 years have passed since the decision in Brown v. Board of Education, supra, and minority groups are still grossly underrepresented in law schools. If the law school is forbidden from taking affirmative action, this underrepre sentation may be perpetuated indefinitelyc No less restrictive means would serve the governmental interest here; we believe the minority admissions policy of the law school to be the only feasible 'plan that promises realistically to work, and promises realistically to work now.' 11 J .S., at A-27. (citation omitted.) --- (c) The Washington Supreme Court disagreed that the admissions procedures employed by the law school constituted arbitrary and capricious administrative action. While race was a factor, it was not the exclusive one. The record overwhelmingly demonstrated that the admissions committee applied predetermined standards and procedures in selecting students. Moreover, in selecting those students most likely to make significant contribu- tions to law school classes and the general community, it was not arbitrary or capricious to consider race as a factor. Finally, the court sharply questioned the assumption that a minority applkant - 10 - is ipso facto "less qualified" than a non-minority applicant who has a higher PFYA. " • • • In light of the gross under representation of minorities in the legal system, can it be said with such certainty as to leave no room for differing opinions that a white applicant with a higher PFYA will make a greater contribution to the law school and the community? We think not. While the probability of .applicant achieving high grades in his first year of law school is an important criterion for admission, it is not the sole permissible criterion." J .S., at A-32. Judge Wright, joined by Judges Finley and Stafford, concurred in order to express his concern for more complete published standards for admission to insure not only actual fairness but the appearance of it as well. Chief Justice Hale, joined by Justice Hunter, filed a lengthy dissent that took exception with almost every key majority position. First, he felt that the constitution should always be color blind, regardless of the laudable or benign social goal sought to be achieved by a racial classification; the increased minority participation assured by these admissions procedures inevitably produces a correlative denial of access to non-minority applicants. There can be no doubt, the Chief Justice asserted, that under any measuring system, appellant was 8/ qualified for admission.- Paradoxically, the law school failed to apply even "its own vague, loose, and whimsical admission standards." J.S., at A-39. Furthermore, the committee was working 8/ -"How, under any rational admissions policy, could an outstanding student, one of superb academic achievement, be denied admission to his state university law school while others, some of them non residents and of mediocre academic standing, were admitted?" J .s., at. A-42. . . - 11 - under a highly questionable assumption that all of the accepted minority students were of a lower economic status than appellant. The dissent also lashed out at the potentially ultra vires practice of having unqualified law students sitting on the admis ? sions committee and exercising controlling power over the careers and even the lives of many potential s tu.dents. Canvassing all those applications in the trial court record, the Chief Justice noted the "curious aura of civil, political or community 'activism: as it is sometimes called, sur rounding the recommendations for admission or rejection." Id., at 45. He further observed that the records of students accepted disclosed extraordinary and inexplicable variations in their qualifications. "But an inspection of these files, in my judgment, fails to show any consistent policy on admissions at which a pre-law student could aim his career. If he is intelligent, works hard, and achieves high grades, his place in the law school class may be preempted by someone with lesser grades but who is engaged in what is des cribed as 'community activities,' or is otherwise described as a student activist. Or, if he is engaged in community activities A Ac;-J It~ and still attains high grades through dili t() /,t'e-. whJ gence and intelligence and long hours at the jt; i~~ ~CJL books, his position may be taken in the entering class by one who has neither engaged ~~ in 'community activity' nor achieved high grades but, nevertheless, has made a high LSAT score. Or, even if he studied hard, is intelligent, and placed high in grades, LSAT and_PFYA, and engaged in what ar2 called community activities, his place might still be awarded to a minority student who has done none of these. All of these inequities are, I fear, bound to foster a spirit of anti 2 intellectualism in the heart of what should be an intellectual center." J.S., at A-49. : - 12 - The dissent sought to distinguish the majority's reliance upon the busing decisions. In those cases, there was a procedurally sound administrative determination that every child, under the plan and the constitution, would gain an integrated and thereby superior education a~ the expense of no other child. Here the putative benefit to one group is pur chased at the expense of another, a practice struck down by a federal district court in a similar situation involving employment and the promotion of minorities by way of preference in school administrative and supervisory positions. Anderson v. San Francisco Unified School District, F. Supp. (N.D. Calif. 1972). Finally, the Chief Justice envisioned several alternatives to preferential admissions policies that satisfy fairness and equal protection standards. See J.S., at A-54 to A-SS. Judge Hunter, joined by C.J. Hale, issued a brief dissent that characterized the committee's action as arbitrary and ~~ capricious and in direct contravention of federalAstate equal protection guarantees. 4. CONTENTIONS: (a) Appellant renews the arguments rejected by the Washington Supreme Court. He emphasizes that the racial classi fication here is hardly benign as to him and that whenever a classification is based upon race, it is automatically suspect. Special privileges and immunities have been dispensed to some but denied to him. . . - 13 - (b) On the merits, appellees rely upon the rationale of the court below to support their argument as to lack of a substantial federal question. Procedurally, they suggest that the appeal be dismissed for wa .nt of jurisdiction under 28 U.S.C. § 1257(2), since appellants challenged no Washington statute but only a rule or policy. Contrary to the authority cited by ap- . :;_! pellants in their Jurisdictional Statement, the admissions policy should not be equated with a "legislative act" such as that considered in Hamilton where the challenge was to the board of regents "rule" requiring all male students enrolled in the University of California to take certain military science courses. The real act attacked here, according to appellees, is the dis ( '- cretionary one taken on behalf of the board of regents by the law school admissions committee. Appellees urge this Court to rule that "[d]iscretionary actions taken by an admissions committee of a state university are not acts 'legislative in character' which would give this Court appellate jurisdiction under the rule of Hamilton •••• " Opposition, at 8. Appellees further maintain that the judgment rests on an adequate non-federal basis, viz, lack of standing since appellant would not have been admitted even if the minorities were excluded. Appellees distinguish Peters v. Kiff, 407 U.S. 493 (1972) (white defendant has standing to challenge the systematic exclusion of negroes from the grand and petit juries), and Trafficante v. 9/ -See Hamilton v. Regents of the University of Calif., 293 U.S. 245 (1931); Sultan Railway and Timber Co. v. Deft. of Labor and Indus tries of the State of Washington, 277 U.S. 35 (19· 0i Lake Erie Railroad v. Public Utilities Comm 'n., 249 U.S. 422 (1~ .'? ). - 14 - Metropolitan Life Ins. Co., 409 U.S. 205 (1972) (white and non white tenants have standing to challenge lessor's discriminatory leasing practices against non-whitesh on the ground that the values of a pluralistic society and diversification among races are clearly permissible in the interests of majority and minority races alike. Their standing argument is not defeated,. appellees insist, by the Washington Supreme Court's failure to decide the factual issue of whether appellant would have been admitted had there been no minority admission program. "Without a sustainable finding that De Funis would in some demonstrable way be affected by whether he won or lost the litigation, the case lacks an essential ingredient to a case or controversy cognizable or appropriate for decision by this Court." Opposition, at 11. (c) The Anti-Defamation League of B'nai B'rith has filed an amicus curiae brief in support of appellant. On behalf of the amicus, Professor Bickel argues that the decision below misreads and misapplies, if it does not squarely conflict with, prior deci- sions of this Court concerning the use of racial classifications. The Supreme Court cases relied upon by the lower court sanctioning racial classifications have uniformly shared two characteristics which are signally absent here. First, they have sanctioned the use of racial criteria as a remedy fashioned to cure unquestioned, specific previous discrimination based on race. Secondly, these cases have imposed no new deprivation on anyone else -- the remedy created no new wrongs. Here, there is no record of prior dis- crimination by the state law school. The amicus argues that this - 15 - Court's decisions hold that "a compelling state interest sufficient to justify a racial classification can be shown only if the classification is undertaken in the course of administering a remedy for proven prior discrimination, or at least if, while serving an allowable state r urpose, it imposes no deprivation on anyone else." Brief for Amicus Curiae, at 16. The .amicus further argues that the decision below distorts the remedial device of "affirmative action." Because of its increasingly critical importance to the achievement of social justice and the development of harmonious race relations under law, the Washington Supreme Court decision threatens to destroy its utility. 5. DISCUSSION: The amount of attention given to this case in this preliminary memorandum is a barometer of the importance attached to the issues presented. The threshold pro cedural.....___. issu~ are sticky. Assuming the controversy is not moot and that appellant has standing, both of which are close questions, there remains the statutory question of a state "statute" under 28 U.S.C. § 1257(2), which appears from reading the cases to be o en question. See Hart & Wechsler, The Federal Courts and the Federal System, 641 (2d ed. 1973). Even if an appeal is improper, the case would be here on certiorari. In that pos~e, ~J it is difficult to deny that the issues raised are not~of trans- cendent importance in a constitutional and societal sense. The case is a veritable can of worms, full of legal questions of first impression and replete with ramifications for related areas, many ' . - 16 - of which I suspect are as yet unforeseen. For example, must half of the entering class of Yale University, or better yet, UCLA be women? !:::E!! "benign quotas" in labor union contracts unconstitu tional? Can Indians be constitutionally preferred over equally qualified non-Indians for Bureau of Indian Affairs jobs? Un doubtedly, the Court may someday have to take on these issues. One wonders, however, whether this is the case "to embark the judi ciary on a long and difficult journey to such an uncertain destina- tion." Branzburg v. Hayes, 408 U.S. 665, 703 (1972). There is a response. 10/10/73 0 1 Donnell Opinion in Jurisdic tional Statement ME November 8, 1973 Owens DISCUSS The Washington state "compensa No. 73-235 tory law .. school admission" De Funis v. Odegaard case. As you know, this case was relisted to allow the parties to brief, at the Court's request, the question of mootness. De Funis, the student, is due to graduate in June of 1974. Due to the impact of a state trial court injunction in the student 0 s favor (kept in force, in essence, by a stay order issued by Justice Douglas), De Funis has been allowed to go to law school. He is now part way through his third and final year, The Washington SC ruled in favor of the law school. That is, the state highest court ruled that under the 14th Amendment the state could continue its compensatory admission policies. Thus, under the law of Washington as it now stands, the law school could lawfully have refused to admit -2- De Funis. But, due to the effect of the trial court injunction initailly in the student's favor and to J. Douglas' .. stay order, it is very likely that De Funis will finish • his law school career even though under the law of Washington as it now stands, De Funis need not have been admitted. De Funis argues that the case is not moot for 2 reasons. One, he says that the injunction and stay that have kept him in school will abate if the Court denies his Petition.* Thss, nothing, technically speaking, would prevent the University from terminating his enrollment. De Funis says that termination of his enrollment is "not an empty fear." He says that the University has asked him to submit a request, to be acted on by the faculty, for ,a permission to remain in school. (He does not say whether he has acceded to that request.) Furthermore, De Funis says that he knows of no basis for the statement in a footnote of the statJs brief that De Funis will be allowed to remain in school-... until the end of this academic year, regardless of the outcome of the Court's decision whether to hear this case. Second, De Funis runs the Moore v. Ogilvie "capable of ..repetition yet evading review"• argument. He also cites *Note that De Funis refers to his jurisdictional ,. , submission as a petition, confirming the thought that this case should be treated as a cert. -3- the abortion cases, Roe v. Wade, etc. He is quite right that those precedents are relevant, but they contain an element of discretion on the part of this Court that .. he understandably fails to emphasize. The state, which won before the highest state court, also argues that the case is not moot (?). That is a bit puzzling, since the state also believes that the judgment below should not be reversed. Why would the state care howl it wins? Can't it be satisfied with a favorable judgment from the highest state court? Is .a judgment from f't~~a.·h...... this Court essential to prevent otherAstudents from litigating the same issue in the federal courts located in Washington, which of course would not be bound by the Wash SC's reading of the feeeral law that controls this case? Certainly the state might rationally have waited for that problem to arise (which might be never), rather than urging this Court to take the case and ..... thus subjecting to some risk the favorable judgment it received below. In any event, the state argues that the case is not moot, because if this Court does not accept jurisdictiob, "Mr. De Funis will be required to re-apply for admission to complete his law school education at the University of Washington law school, and the University of Washington will have to exercise its lawful discretion in acting on that request." The law school apparently operates under a quarter system. The q!Fitical decision point ~ would apparently be between Feb. 20, 1974 and March 1, 1974, which is the .. -4- registration period for Spring quarter, 1974--Mr. De Funis' last quarter before the award of his J.D. degree. Although the state says that it will have discretion DV\ to decide whether De Funis is to continu~to graduation, I think this is a threat to be taken lightly. "Counsel is advised by the Dean of the law• school (and we both believe. that this .... Court should be advised) that even if dAscretion with respecta to the continuance of Mr. De Funis' admission to the law school is ••••••...... ~ returned to the university by final termination of this litigation prior to his registration for a final quarter of ._ study, it would be most unlikely that the university would make a '* decision preventing him from completing the balance of._ his course of study for the J.D. degree. Counsel is further advised by the Dean of the law school (and we believe~ this Court should be advised) that if Mr. De Funis 11 registers for the spring quarter under the existing order of ... this Court during the registration period from February 20, 1974, to March 1, 1974, that registration would not be cancelled unilaterally by the university regardless of the outcome of this litigationa." The state also runs the Moore v. Ogilvie argument, commenting dryly that "this case illui'grates the possiuility that it may well take longer to commence a case in a state trial coutt and follow it through to final resolution by review and IE ,. *•*•• disposition by .._ this Court than it takes to complete a three-year law school education." -5- As we discussed, I would dismiss and deny, The decision below is probablY' right (thus in principle the correct thing to do is to deny review, without regard to the consequences to De Funis), In any event, the Court should not thro~ itself into this thicket until is has to--when a case going the other way makes it up here. Without regard to theory, it seems to me extraordinarily unlikely that the Dean of the law scho~-in light of his submissions through counsel to this Court--is not going to let De Funis finish school, no matter whena the Dean receives word that this Court has declined review, I wouldl say nothing about mootness,; simply D & D, Conference 11-9-73 Court Voted on ...... , 19 .. . Argued ...... , 19 .. . Assigned ...... , 19 . . . No. 72-235 Submitted ...... , 19 . . . Announced ...... , 19 . . . De FUNIS £M cus~ vs. ODEGAARD HOLD CERT. JURISDICTIONAL MERITS MOTION AB- NOT FOR 1--~--+--rS_TA_T--,EM_E_N-rT--t---r-+-----r---ISENT VOT- 0 D N POST DIS AFF REV AFF G D ING Rehnquist, J...... t,-./-:- .~ ~-'...... Powell, J ...... lr. .'rf: .J..t . · · .."i · ~ · · · · · · · · · · ·r ~ ·· · · ~· ·· · · · · ·· · · · · · · · · Blackmun, J ...... 4 . ~~ ~ ~ . ~~! r. .r,t: . fUA: rt-:- . 1.~. ~ ...... · · ·. ·· · · · Marshall, J...... ·Y.. . .' ..... ~ ...... White, J...... J:;:. Y.. f. b:'...... Stewart, J ...... /.':J:: ~ )~ ...... Brennan, J ...... ~ ...... Douglas, J ...... '¥." .~ .... [;\J' ...... · ...... Burger, Ch. J ...... /v'.. cf-:. ~ ...... ~u.pt·ttuc CHAMBERS OF' -.~usTicE wM . -.~ . BRENNAN, .JR. November 13 , 1973 RE: No. 73-235 DeFunis v. Odegaard, etc. Dear Bill: Please join me in your dissenting opinion in the above. Sincerely, Mr. Justice Douglas cc: The Conference Conference 11-16-73 Court ...... Voted on ...... , 19 .. . Argued ...... , 19 .. . Assigned ...... , 19 . . . No. 73-235 Submitted ...... , 19 . . . Announced ...... , 19 . . . De FUNIS vs. ODEGAARD RELIST HOLD JURISDICTIONAL NOT CERT. FOR STATEMENT MERITS MOTION AB- 1-----,.--+---,----,---,---+-....---t--,----lsENT VOT- G D N POST DIS AFF REV AFF G D lNG / Rehnquist, J ...... '/ "" Powell, J ...... Blackmun, J ...... './ ...... "" . Marshall, J ...... White, J ...... Stewart, J ...... Brennan, J ...... / Douglas, J ...... / Burger, Ch. J ...... '/ ...... "" . jj/SS 2/12/74 MEMORANDUM TO: Mr. Justice Powell DATE: February 12, 1974 FROM: John C. Jeffries, Jr. No. 73-235 DeFunis v. Odegaard l,.. 11e vo leV\+- The principal issue in this case is whether discrimina- tion in favor of racial and ethnic minorities is unconstitutional under the 14th Amendment. This inquiry can be factored into a number of more precise questions: Are racial classifications for any purpose per se unconstitutional? If not, are they always "suspect" classifications, demanding strict scrutiny under the Equal Protection Clause? If you decide that so-called benign racial classifications are not per se unconstitutional but do require strict scrutiny, then you must consider whether the admission practice followed by respondents in this case was supported by a compelling state interest. This series of questions may be a useful way to structure an opinion in this case, but it does not simplify or refine the root issue of whether discrimination in favor of racial and ethnic minorities is constitutionally equivalent to discrimination against such groups. This Court has not previously considered this issue. The precedent most closely on point is Porcelli v. Titus, 431 F. 2d 1254 ( CA 3 1970), and it supports the position of respondents. There are many other decisions ordering affirmative action programs in employment and -· 2. education to remedy past discriminatory practices. ~· ~·, Carter v. Gallagher, 452 F. 2d 315, 327-331 (CA 8 1972); Castro v. Beecher, 459 F. 2d 725, 736, 737 (CAl 1972). These cases may be read to support respondents' position, but they may also be distinguished on the ground that they invsl• eel ihOJI may also lso eiisbhtgalshsd on ilta 8•*••d tJ 1& frL 8IJ involved remedies for specific prior racial or ethnic discrimination by ------~'------~--~--~------the party against whom the order ran. Here there is no evidence of a Washington Law School. Thus any justification of the present admissions policy as remedial in nature would hinge on generalized, but undoubtedly true, assertions about the inequality of opportunity historically suffered by blacks and other minority groups in this country. Insofar as present practice is suggestive of the proper resolution of this question, it also favors respondents' position. Most of the major colleges and universities in this country do favor black applicants for admission, though I suspect r-- that most are not quite so overt about it as the University of Washington. Moreover, the federal government is involved in a variety of ways in an effort to redress past disadvantages of minorities by affirmative action at the expense of whites. For example, there is a statute which allows the federal government to set aside certain government contracts for minority-owned enterprises, even thought they may not be the low bidders. Obviously, none of these factors is controlling. To the extent that the authorities go one way or the other, they favor respondents, but the 3. precedents leave you quite free to decide this case as you think best. On the merits of the issue, I have no firm view. The various considerations arrayed on both sides of the question are well stated in the various briefs filed here, many of which are quite good. In my view v the best statement of respondents' case is the brief by Archibald Cox for Harvard College. I also found the brief by Derrick Bell for the National Conference of Black Lawyers interesting. A quick survey of the remaining briefs filed in support of respondent may prove useful, but they add little to Cox's argument. By far the best statement of the opposing view is the brief filed by Alexander~ ickel and PhilipvKurland for the Anti- Defamation League of B'nai B'rith. You may safely disregard petitioner's brief as well as those of the other amici supporting his position. One class of arguments that is repeatedly raised in support of respondents should be rejected out of hand. The contention made by Mr. and Mrs. Cahn in their amicus submission for Antioch Law School and in the brief of the Legal Aid Society of Alameda County, et al., that various standard indicators of ability and aptitude, notably undergraduate grades and LSAT scores, are racially biased is unsupported by reliance evidence of any description. This issue was not litigated below and is in any event quite irrelevant to this case. The question is not whether some other system of admission might be discriminatory in its effect though plainly not its purpose, but whether this admissions procedure, which 4. is admittedly discriminatory in favor of blacks and other ethnic minorities, is constitutional. Another red herring is the repeated emphasis on the fact that race was not the sole factor that determined acceptance, that is, that no blacks were admitted solely because they were black. If the discrimination cut the other way, any attempt to justify a preference for whites on the ground that race was not the only factor considered would be laughable. In this c case the respond ts did not look for economic or cultural deprivation to determine whether a particularly generous admissions procedure would apply. They looked to race. This is a racial- classification, m d the fact that being black did not guarantee admission or that being white did not necessarily mean rejection seems to me irrelevant. The question is not whether race was the sole factor considered by the admissions committee, but whether this differentiation among applicants, which was admittedly based on race rather than on any number of associated factors, is constitutional. Beyond these two inconclusive comments, I have no firm view of how this question should be resolved. I am prepared to discuss the case with you whenever you find it convenient to do so. JCJjr ss TO THE CONFERENC:E1- FYI LAW OFFICES JOHN P. LYCETTE (1e8!1) L.YCETTE, DIAMOND & SYL.VESTER JOS EF DIAMOND FOURTH FLOOR HOG£ BUILDING JOHN N . SYLVESTER v E ARLE W . ZINN SEATTLE 98104 L YL E L . IVERSEN (AREA 208) 823 · 1330 H ER MAN HOWE JOHN P . LYCETT£ 1 JR. S IMON WAMPOLO February 28, 1974 EUGENE G . CUSHING ALBERT 0 . PRINCE (0~ COUNSEL) WILLIAM J . MILLAR01J R . RI C HARD M . FOREMAN ROBERT E . RATCLIFFE CRAIG S . STERNBERG EDWIN J , SNOOK MALCOLM 0 . KATZ JOHN T , PETRIE Honorable Warren Burger Chief Just ice United States Supreme Court Washington, D. C. Re: DeFunis vs. Odegaard No. 73-235 Dear Mr. Chief Justice: Pursuant to your request, !.wish to advise that Marco DeFunis, Jr. filed his registration with the University of Wash ington law school on Tuesday, February 26, 1974, which con sisted of filling out a computerized form listing the courses that he desired to take for his f.ina l quarter in law school. Please make this information available to Justice Marshall ·.·' . as requested by him. Please also apologize to Justice Marshall for me, I was pressed for time and may have been a little discourteous. l Yor sincerely, · ..,.. .. 2,~' {_/{',( o<,p,-, ( ·' ...... ::::n: 1Tn:br CJ :r: ) IJ c c : Mr. James D. Wilson .:::c ~ · - -L: ..c_ m, ,, ' ! ' .... 1, ;1 \. .. . \ <..-;::, <...c:. · 1 r ~ c:. C/) l.n ~ -~ -r0·: N !i t o_i ..I...::: :M> c:, n'l .-... (11 .. .c.~ March 21, 1974 No. 73-235 DeFunis v. Odegaard Dear Potter: Please join me in your Per Curiam. Sincerely, Mr. Justice Stewart lfp/ss cc: The Conference ~ttttt ~curt crf tltt 'Jllttibb .;i;taftg ,.-ag!p:ttghm. l5. ~· 20pJI>~ CHAMBERS OF JUSTICE HARRY A. BLACKMUN March 21, 1974 / Dear Potter: Re: No. 73-235 - DeFunis v. Odegarrd Please join me in the~ curiam you have prepared for this case. Sincerely, Mr. Justice Stewart Copies to the Conference ~u.p-umt (!Jo-urt o-f tltt ~tri.ttb ~ta.tr.tt ~a.tt!rittgto-n. If}. QJ. 2.0.?n~ / CHAMBERS OF JUSTICE WILLIAM H . REHNQUIST March 21, 1974 Re: No. 73-235 - DeFunis v. Odegaard Dear Potter: Please join me in the per curiam you have prepared. // Sincerely, ,v/ lt'(\; Mr. Justice Stewart Copies to the Conference ... No. 73-235 DE FUNIS v. ODEGAARD Argued 2/26/74 ~Q (~ P-A-1¥) . u ~..,4 ~~~e ~~~-~~: . ~ ~ ">/- a.--Ui. ~~ • -~ ~ fA.t--~-rl/'l.R'~. -~ ~ ~~ ..~~/ ?~~) 'l:.:ll~~lLJ~/':.tc..~~...U? C;, t9 - 7 .>·- "/ 0 'V &-v ~ ~ ~-..c~cl~ - -1-<-~_/--u:J__ , J 1- ~-/ ~·-r-/ (~ 4t ~/tv. ~ ~/l/ ~~~~lk..~ty~. /( " -1 P.. ~ ~ lift1~ ~~ b.I~ ~~-- --z.,c._CJ-1 ~~~~, ~~~ 1 March 1974 SUPPLEMENTAL MEMORANDUM -- DeFunis v. Odegaard Yesterday's luncheon discussion concluded with general agreement on the following points. First, the Fourteenth Amend ment's guarantee of equal protection of the laws addresses the validity of legislative classifications (and other classifications supported by state action) rather than merely the protection of certain groups of citizens. This position is consistent with the general development of the Equal Protection Clause by this Court. It is well established, for example, that a classification that is irrational or that burdens a constitutionally protected fundamental interest runs afoul of the Equal Protection Clause even though it does not deal with identifiable groups of citizens. Second, the "compelling state interest" test or "strict scrutiny" approach is a judicially-created concept designed to give special force to the Fourteenth Amendment's protection of certain historically disadvantaged groups, most notably blacks. It is premised on the perception that when the state seeks to act in a way that works to ~he especial detriment of a group that has long been an object of discriminatory treatment, it must meet a higher burden of justification than would otherwise be required. All doubts are to be resolved against the snate, in such cases. At least as applied to race, this view that the "compelling state interest" test is only applicable to the protection of certain groups rather than to· certain classifications is not consistent with the language of many precedents that speak in terms of "racial classifications." It may be reconciled with the precedents as being consistent in principle, but it does involve the enunciation of new law. 1. •l:;e·' 2. Third, it therefore follows that the strict scrutiny standard is inapplicable to the instan~ case. The admissions policy of the Washington Law School does involve overt racial discrimination, but it cuts in favor of blacks. The point is not that this dis crimination is benign in any general sense (which I think is a misconception) but rather that it is benign with regard to those historically disadvantaged groups for whom the "compelling state interest'' test was devised. DeFunis was discriminated against because he was white. As a member of the white race he cannot claim the protection of the strict scrutiny standard of review. In the words of Rodriguez, whites do not "command extraordinary protection from the majoritarian political process." Thus, although the constitutional guarantee of equal protection of the laws is applica ble to this case, the "compelling state interest" test is not. Fourth, the correct test is therefore rational basis, and this is the only standard by which voluntary racial discrimination in favor of blacks may be judged. The admissions policy at issue here clearly passes muster under this standard. I think it important to recognize, however, that if you accept this analysis, there is no basis for treating any voluntary reverse discrimination, including some instances that will seem a good deal less attractive than the instant case, on any basis other than rationality. Thus a. quota would have to be approved unless it were irrational .or unless it could be seen to discriminate against blacks, in which case strict scrutiny would apply. I urge you to consider this consequence of the proposed analysis at this point, because I believe you will find that there will be no principled basis for distinguishing this case from a later case that involves a not irrational quota. Of course, acceptance of this analysis would not in any way imply that the constitution requires quotas or any form of reverse discrimination, except in the well-established circumstance of a remedy for specific acts of discrimination by the party against whom the order runs , but only that the constitution permits them. JCJjr .... ( ' .~j' ~ ~..· ,... ~ Stewart, J. ~ C~ ~ c.C.~t.t d~LL" ~ •. tPL( ~ ~, ~~· _), .,U.v, ~J fjl rh ~~ L...... - i-$". ~ L ::u:J- :~ "'-41!' ~ .,k--.- o!>/ :3 ;I,;; '1-- • J C..L;_r .cL- ce _..__. z.../ .<#< ,L ~ '- 6,c. ~Q "><- (_) WJ.lit<", J. c~ l\J:tr:-:l,:tll, .T. c:i-j-)-~ 2~ . ~ ~ u4 '1-L.LS-tJ-r ~.) c~~ ~~ A+£~~ C~t..vLZL" JS.,' ' Blackmun, J • /;t..L~ ~ ~ :?--<-~~'¥. lj!_,z•u.iJll ..-w IJ~, tl-2-- k . .,...'Z.<,.,_.e.....r-i-z;_., /"J.<-~ JLc -t.u__ ~ pv. ~ ~ s -t9!'S>t··i..e.._lk2-, () ... * 11-c> ~ ~~6.J/;-: v .0 '2-~Q ~ ~~ ~ •' Caotfth' MoH : , Who 11Vill Pay for ihe Injustice of the Past? ------···--·· t. ' ...-!-~ ·--· --7·------~ -t... -I ·/ •• iA..-\ .-U ·-- l.~ ,J .3/J 7 y: ,, The Legality of Racial Quotas '· . , I expense of Marco DeFunis. Constitutional rights are in By ANTHONY LEWIS dividual, and he cannot be penalized for higher ends. The law may consider race in order to undo specific segrega· "Our Constitul:ion is color-blind, and neither knows nor tion schemes, as in the South, but not just to counter ~. tolerates classes among citizens." generalized disadvantage. , -Mr. Justice Harlan, dissenting The strongest '·statement of that position came in the .. ' in Plessy v. Ferguson, 1896. Anti-Defamation League's brief, written by Professors Philip When the Supreme Court held racial segregation in the B. Kurland of the University of Chicago and Alexander M. - ~ public schools unconstitutional,. in J 954, many believed that Bickel of Yale. It said, "the country had bE:'en taught for a the ideal of the first Justice Harlan had at last triumphed. generation that racial discrimination was immoral and un From now on, they thought, the Jaw would have to deal consti1ulional. Now this is to be unlearned and we are told with Americans as individuals, not on such a group base as that this is not a matter of fundamental principle but only their race. Twenty y.ears later Americans are wiser and sadder. a matter of whose ox is gort>d. Those for whom racial equality ·It has been realized, slowly, that there js a certain un was demanded are now to be more equal than others." reality in telling people who have been the victims of dis Some Jewish groups, which fought years Rgo against ' crimination for centuries that they may now compete at quotas that limited their numbers at universities, see a the same starting line for jobs or education. That abstract quota system slipping in again in benign guise. But equality is unlikely to lessen the •terrible disparities of in groups of minorities and women, including Jewish women, come and status in this country in any foreseeable time. fear that a victory for Mr. Defunis would end any prac The Federal Government and numerous other institutions tical hope of catching up with the preferred position of have therefore underlakE:>n programs of "affirmative action" while males in America. Not only university places but i.o aid those disadvantaged by history. But in doing so they the fate of special employment programs for women and ' may necessarily violate the rule of color-blindness. Is that minorities could be at stake. constitutional? Last week the problem was put ·to the Supreme Court. The Tough Intellectuar Is~ues case involved Marco DeFunis Jr., a Phi Beta Kap•pa grwuate There are also tougfl intellectual issues too numerous for of the University of Washington in Sl'-l.ltLle who was !~used di11cuss\on. How fair are aptitude tests? How accurately admission to its law school in September, 1971. His al)r.itude do they forecast legal carecr5? Are university admissions to test scores were higher than those of 37 minority studtots be based on grades alone, without reference to character . blacks, Jnclians, Chicanos-who did get in. Mr. Det . -• ROUGH DRAFT -- No. 73-235, DeFunis v. Odegaard The mootness doctrine has its genesis in the Article III require- ment of "case or controversy. " North Carolina v. Rice, 404 U.S. 244 (1971). As Stern and Gressman have stated, "[t ]he Court has consstitutional jurisdiction only over actual cases and controversies, between adverse interests, with respect to which the Court's judgment will be effective. " Supreme Court Practice, at 587. The Court may lose jurisdiction over a case that it has agreed to hear if subsequent events, necessarily outside the record, render the case moot, and the determination of whether that condition has occurred is a matter of federal law. Liner v. Jafco, Inc. 375 U.S. 301 (1964). With these principles in mi11d, I conclude that we S1 auld dismiss this case for lack of jurisdiction. We granted certiorari in this case on November 19, 1973. While we may then have faced ~live controversy, subsequent events have .d imex:v&Bea to alter the situation. De Funis has been enrolled in the 1\ University of Washington Law School since September of 1971. His academic performance has been creditable, and he has completed all requirements for his J.D. degree save one quarter of study. Regis- tration for the spring quarter of 1974 was open from February 20 through March 1 of this year. As his counsel has informed the Court .. . 2 . t ·1~J .:j i * Y letter dated , 1974, DeFunis registered for ~ ~ j his final quarter on , 197, This event makes r 't- i operative the assurance given to the Court in respondents' memorandum 1f J' ~~ on mootness: "Counsel is further advised by the Dean of the law school t , J{ { and we believe this Court should be advised) that if Mr. De Funis 1~ registers for the spring quarter under the existing order of this court to March 1, t 1974, that registration will not be cancelled unilaterally fi by ~he university regardless of the outcome of this litigation" (emphasis added). Thus DeFunis will be allowed to complete his final quarter of J i (J .:;_r2_,_J :l! j ~ affir~ : r reverse the ju ent below. , WMleJ~ may be possible ~ ~1 ~ to magine orne totally unforeseen circumstance that would prevent ~ . 1 De Funis f m taking his degree in due course(~_.~·, severe ~1:-4 t!Ff-~ /-CJ ~k f.!P"-rV-J~~] illnes necessitating withdrawal p-rom school), any such hypothetical Y f~ t 1 ) ~ ) , w uld be sheer speculation unsupported by anything known to us at 'fJJ-. ' / 7uY- ~,}(. ~ .,_.. trzd2l-~~~::J;;i:::f::;:~dv~ V " ~ ~~ ..-r~ this ti\ne.;\ The fact tha~ a decision on the merits by this Court would ~~ not affect the legal relations of these parties._rems-to me the hall of mootness. 3. There is some suggestion in the memoranda of the parties that this case falls within the relaxation of traditional mootness standards for controversies that are "capable of repetition, yet evading review. " Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 515 (1911); Moore v. Ogilvie, 394 U.S. 814, 816 (1969). Cf. Roe v. Wade, 410 U.S. ll3 (1973). In my view this is not such a case. If, for example, De Funis had lost rather than won in the trial court he would not have been enrolled in the University of Washington Law School in the fall of 1971 and would not now be past the point where a decision of this Court . . . would matter to him. There is no reason to assume that future plain- tiffs will be as successful as De Funis in obtaining all relief requested I' before this Court has a chance to rule on the matter. Nor is there any basis for the supposition that future attempts to litigate this question will be as time-consuming as the instant case. The university's appeal to the Washington Stp reme Court was taken on October 21, 1971, but the case was not decided until March 8, 1973--a delay of more than 16 e months that surely cannot be charac~rized as normal or predictable. Even if it were, this case would not now be moot if DeFunis had filed a class action and had subsequently been joined as a representative party by another applicant in a later year. These hyp~cals demonstrate tQ my-=Sat~otien that this is not a recurring problem that .. 4. will necessarily or even probably evade future review,. and the prece- cents dealing with that exception to the traditional mootness criteria are inapplicable. I will therefore vote to dismiss. '• . . ' No. 73-235 De FUnis v. Odegaard '. '~ 1 ~. 1: The vote at the Conference on the issue of moot:ness was 4 to 4. I passed, to afford an opportunity for more mature consideration on my part. As the docket sheets will show, I voted consistently to moot this ease on the three occasions when we considered the petition for eertiorart Five of us remained of the opinion that the case was moot even after we had requested and received memoranda from counsel on the mootness issue, and counsel for both parties had argued to the contrary. Having taken the case, received briefs from numerous parties and heard argument, I am troubled now by a disposition which does not address the merits. Of course, this has happened many times before. Yet, this case has attracted national interest and it is predictable that the Supreme Court, as an institution, will be criticized for taking a course of action which will be viewed by many as a means of avoiding a truly "sticky wicket". The extent and tone of the institutional · criticism is likely to be exacerbated if we split 5 to 4 on the mootness question. The foregoing consideratioo.s prompted me to reexamine the arguments - in additioo to the institutlmnall. ones - against mootness. They add up pretty much, despite being able to find authority for almost , any position on mootness, to theoretical assumptions about what ~ight happen: -~· g:., the Board of Trustees of the University migilt-~epudiate ....·.J; the Dean of the Law School's representation (through counsel) that - 2- ,, De Funis will be allowed to graduate even if the decision below is reversed. ''t, I find it difficult to accept this as a real possibility. ,, ., If, as I believed, the case was substantially moot when we granted cert, it certainly is today. DeF\mis has now registered for the final term. The Dean of the Law School has given what I think fairly may be construed as assurance that the University of Washington will not withhold DeFunis' degree if he completes his work satisfactorily. Because De FUnis did not bring a class action that would have enabled a subsequent plaintiff to join as a representative party and take up his position, the case will be undeniably dead under any theory of , mootness known to me when DeF\mis takes his degree in June. i(: Accordingly, I have decided -although with great reluctance under the circumstances - to vote as I previously have: that the case is moot. .in.prttnt <.!fouri of tlft ~b' .i\tzdtg ..-uqmght~ ~. $ CHAMBERS OF THE CHIEF .JUSTICE March 14, 1974 PERSONAL Re: No. 73-235 - DeFunis v. Odegaard Dear Lewis: I share some, but not all, of your concern about "mooting" a case after it is argued. There are several answers that will satisfy the thoughtful but not the emotional critics. 1. If we must decide a case because we grant Cert, that places four Justices in a position to force the Court to issue advisory op1n10ns. The 11 tail 11 can 1t be allowed to wag the "dog" to that extent. 2. We have cases that become moot between a grant and oral argument or final decision. 3. Not infrequently we DISIG, and the moot ness holding shares with such dismissal the opportunity to see a case fully exposed. The critics who would condemn us for a decision in favor of DeFunis will doubtless be exorcized by a mootness holding. It all depends on which student 11 is being gored. 11 Mr. Justice Powell .. ~tutt CHAMI!II!:RI!I 01" THE CHIEF .JUSTICE March 14, 1974 / Re: 73-235 - DeFunis v. Odegaard MEMORANDUM TO THE CONFERENCE: Potter Stewart has agreed to draft a per curiam opinion dismissing the appeal in the above case as moot. To: The Chief Justice Mr. Justice Douglas Hr. Justice Brennan Hr. J:.L>tlce White Hr. Justice r.hrshall !tr · Ju~. ~lee Blc.c..t(mun 1st DRAFT Mr • J 1 "t ~ cc Powell_.., 1c. Ju~tice R2hnquist SUPREME COURT OF THE UNITED STAT' . ~ v ,1. Stewa.. t, J. No. 73- 235 Circulated: MAR 2 0 1974 Marco DeFunis et al., Recirculated: Petitioners, ~T, ------v. -Gtt AppC"a] from the Su~ prcme Court of Wash~ Charles Odegaard, President ington. of the University of Washington. [March Hl74j PER CuRIAM. In 1971 the petitioner. Marco DeFums. applied for admission as a first-year student at the University of Washington Law School, a state-operated institution. The size of the incoming first-year class was to be limited to 150 persons, and the Law School received some 1,600 applications for these 150 places. DeFunis was eventu ally notified that he had been denied admission. He thereupon commenced this suit in a vVashington trial court, contending that the procedures and criteria em~ played by the Law School Admissions Committee in- vidiously discriminated against him on account of his race in violation of the Equal Protection Clause of the Fourteenth Amendment to the United States Co11stitution. DeFunis brought the suit on behalf of himself alone, and not as the represe11tative of any class, against the various respondents, who are officers, faculty members, and members of the Board of Regents of the 'University of Washington. He asked the trial court to issue a mandatory injunction commanding the respondents to admit him as a member of the first-year class entering in September of 1971. on the ground that the Law School .. 73-235-PER CUHIA:\1 2 DEFUKlli v. ODEGAARD admissions policy had resulted in the unconstitutional denial of his application for admission. The trial court agreed with his claim and granted thf' requested relief. DeFunis was, accordingly, admitted to the Law School and began his legal studies there in the fall of 1971. On appeal, the Washington Supremf' Court reversed th~ judgment of the trial court and held that the Law School admissions policy did not violate the Constitution. By this time DeFunis was in his second year at the Law School. He then petitioned this Court for a wnt of certiorari, and MR. JusTICE DouGLAS, as Circuit Justice. stayed the judgment of the Washington Supreme Court pending the "final disposition of the case by this Court.'' By virtue of this stay, DeFunis has remained i11 law school, and was in the first term of his third and final year when this Court first considered his certiorari petition in the fall of 1973. Because of our conceru that peFunis' third-year standing in the Law School might have ren .cJered this case moot, we requested the parties to brief the question of mootuess before we acted on the petition. In response, both sides contended that the case was not moot. The respondents indicated that, if the decision of the Washington Supreme Court were permitted to stand, the petitioner could complew the term for which he was then emolled but would have to apply to the faculty for permission to continue 111 th<> school before he could register for another term. 1 We granted the petition for certiorari on November 19, 1973. The case was iu due course orally argued on February 26, 1974. 1 By contra::;{, in their rP::;pou~l' to the pPtJtion for crrtiorari, thp rr::;pondent~ hnd ~tatNI that DrFu1n::; "w ill complPtf• hi~ third year rof law ~c hool] nne! be ilW DEFUNIS v. ODEGAARD 3 In response to questions raised from the bench during the oral argument, counsel for the petitioner has informed the Court that DeFunis has now registered "for his final quarter in law school." Counsel for the respondents have made clear that the Law School will not in any way seek to abrogate this registration.' In light of DeFunis' recent registration for the last quarter of his final law school year, and the Law School's assurance that his registration is fully effective, the insistent que~ tion again arises whether this case is not moot, and to that question we now turn. The starting point for analysis is the familiar proposi tion "that federal courts are without power to decide questions that cannot affect the rights of the litigants before them." North Carolina v. Rice, 404 U. S. 244, 246 ( 1971). The inability of thf federal judiciary "to review moot cases derives from the requirement of Art. III of the Constitution under which the exercise of judi cial power depends on the existence of a case or contro versy." Liner v. Jajco, inc., 375 U. :-l . 301, 306, n. 3 (1964); see also Powell v. McCormack, 395 U. S. 486, 496, n. 7 (1969); Sibron v. 1\ "ew York, 392 U. S. 40, 50, n. 8 (1968). Although as a matter of Washington state law it appears that this case would be saved from moot ness by "the great public interest in the continuing issues raised by this appeal" - Wn . -, -, - P. 2d -, -. -, n. 6. the fact remains that under Art. III "[e]ven in cases arising in the state courts, the question of moot ness is a federal one which a ffderal court must resolve 2 In t hrir mrmorandum on thr qu<•:-;tion of mootn<'Hs, counsel for the respondents unequivocHII~ · stal<'d: "I ijf 1\lr. DeFunis regi~ters for tlw ,;pring quartPr undrr the existing ord0r of this Court during the rPgistration prriod from February 20, 1974, to l\Iareh 1, 1974, that registration would not lw canet'i<'d unilaterally by thE' univer;;ity regardle::>s of the onteonw of this litigation '' .. 73-235-PEH CURIAM 4 DBFUNIS v. ODEGAARD before it assumes jurisdiction." North Carolina v. Rice, supra, at 246. The respondents have represented that. without regard to the ultimate resolution of the issues in this case, DeFunis will remain a student in the law school for the duration of any term in which he has already enrolled. Since he has now registered for his final term, it is evident that he will be given an opportunity to complete all academic and other requirements for graduation. and, if he does so. will receive his diploma regardless of any decision this Court might reach on the ments of th1s case. In short, all parties agree that DeFunis JS now entitled to complete his legal studies at the University of Wash ington and to receive his degree from that institutiou. A determination by this Court of the legal issues tendered by the parties is no longer necessary to compel that result, and could not serve to prevent it. DeFunis uid not cast his suit as a class action. and the only remedy he requested was an injunction commanding his admission to the Law School. He was not only accorded that remedy, but he now has also been irrevocably admitted to the final term of the final year of the law school course. The controversy between the parties has thus clearly ceased to be "definite and concrete" and no longer "touch [ es l the legal relations of parties having adverse legal interests." Aetna Life Ius. Co. v. Haworth, 300 u. s. 227. 240-241 (1937) . It matters not that these circumstances partially stem from a policy decision on the part of the respondent Law School ,authorities. The respondents. through their counsel, the Attorney General of the State, have profes sionally represented that in no event will the status of DeFunis now be affected by any view this Court might express on the merits of this controversy. And it has been the settled practice of the Court. in cont<'xts no less significant, fully to accept representations such as these 73-235-P:glt CURIAM DEFUNIS v. ODEGAARD 5 as parameters for decision. See Gerende v. Elections Board, 341 U. S. 56 ( 1951); Whitehill v. Elki·ns, 389 U. S. 54, 57-58 (1967); Ehlert v. United States, 402 U. S. 99, 107 (1971). There is a line of decisions in this Court standing for the proposition that the "voluntary cessation of allegedly illegal conduct does not deprive the tribunal of power to hear and determine the case, i. e., does not make the case moot." United States v. W. 7'. Grant Co., 345 U. S. 629, 632 (1953); United States v. Phosphate Export A.ssn., 393 U.S. 199, 202-203 (1968). These decisions and the doctrine they reflect would be quite relevant if the ques tion of mootness here had arisen by reason of a unilateral change in the admissio11s procedures of the Law School. For it was the admissions procedures that were the target of this litigation, and a volulltary cessation of the admis sions practices complained of could make this case moot only if it could be said with assurance "that there is no reasonable expectation that the wrong will be repeated." United States v. W. '1'. Grant Co., supra, at 633. Other wise, " [ t Jhe defendant is free to return to his old ways," id., at 632, and this fact would be enough to prevent mootness because of the "public interest in having the legality of the practices settled." !d., at 632. But moot ness in the present case depends not at all upon a "volun tary cessation" of the admissions practices that were the subject of this litigation. It depends, instead, upon the simple fact that DeFunis is now in the final quarter of the final year of his course of study, and the settled and unchallenged policy of the Law School to permit him to complete the term for which he is now enrolled. It might also be suggested that this case presents a question that is "capable of repetition, yet evading; review," Southern Pacific Terminal Co. v .. ICC, 219 U. S. 498, 515 (1911); Roe v. Wade, 410 U.S. 113, 125 (1973) ,. and is thus amemable to federal adjudication even .. 73-~35-PER CURIAM 6 DEFUNIS v. ODEGAARD though it might otherwise be considered moot. But DeFunis will never again be required to run the gantlet of the Law School's admission process, and so the ques tion is certainly not "capable of repetition" so far as he is concerned. Moreover, just because this particular case did not reach the Court until the eve of the petitioner's _graduation from law school, it hardly follows that the issue he raises will in the future evade review. If the admissions procedures of the Law School remain un changed, there is no reason to suppose that a subsequent case attacking those procedures will not come with rela tive speed to this Court, now that the Supreme Court of Washington has spoken. This case, therefore, in no way presents the exceptional situation in which the Southern Pacific Terminal doctrine might permit a departure from "[t]he usual rule in federal cases ... that an actual con troversy must exist at stages of appellate or certiorari review, and not simply at the date the action is initiated." Roe v. Wade, supra, at 125; United States v. Munsing wear, Inc., 340 U. S. 36 (1950) . Because the petitioner will complete his law school studies at the end of the termI for which he has now registered regardless of any decision this Court might reach on the merits of this litigation, we conclude that the Court cannot, consistently with the limitations of Art. III of the Constituti0n, co1isider the substantive constitutional issues tendered by the parties. Accord ingly, the judgment of the Supreme Court of Washing ton is vacated, and the cause is remanded for such proceedings as by that Court may be deemed appropriate. It is so ordered. .inprtutt C!f4lltrl of tqt ~b .jtatt• Jfa.ltinghtn. ~. OJ. 2llbi'!-$ CHAMBERS 01'" THE CHIEF .JUSTICE March 26, 1974 Re: No. 73-235 - DeFunis v. Odegaard Dear Potter: Please join me in your Per Curiam opinion in the above case. Mr. Justice Stewart Copies to the Conference .. . .iuvrtlttt QJttud ttf tlrt ~ttittb ~tate a 'man~tt. gl. QJ. 2ll,5't~ C.HA!'I.B.!';RS O F / JUSTICE BYRON R. WHITE March 27, 1974 Re: No. 73-235 - DeFunis v. Odegaard Dear Bill: Please join me. Sincerely, ~ Mr. Justice Brennan Copies to Conference • f ·-.. ··· ·~ ~ .11!: ....-: ·- \ .r. r . ~n.pume ~onrt of tire ';muitd'l ~tuft}) 1UagJrin!ihttt, gl. ~· 20,5'1·2 CHAMBCRS OF" JUSTICE THURGOOD MARSHALL March 28, 197 4 Re: No. 73-235 -- DeFunis v. Odegaard Dear Bill: Please join me. Sincerely, .,-1 c-!111 T.M. Mr. Justice Brennan cc: The Conference ·' ._, ) ) ) THE C. J. W. 0. D. W. J. B. P. S. B. R. W. T. M. H. A. B. L. F. P. W.H . R. . . P.s. uJ~~ ~ fV\.£' ..•: • ,. .-.. w\f, ~ ~c,L).le ~ ~p. s .. .:Lfo -1~ ·- . ~ ;,, .. ~~~ ?.f l- tL\·'1~ , ..z? ...lt 3 -2'1.. 7~ -, ..~\ ..1'\ ~ ~-2.1·7f ~ ~ 3 /./1,1 J) .....,J'7~ u '...J..I.A1 ~" /. ·~~rI -:J/?-J/7f ··~~':;~~~ 1--1{,·1~ 8~"'"-1,\~~~ ~-~-1Yu lith~ ~.. ·~ ·it J~ ~~ llj/f'}y ~tJ,.,", .. .,J,. l\' ~-~g'.. '14 ~~ I No. 73-235 DeFunis v. ~Odegaard -~------·-·'- JK/gg 7-14-75 MEMORANDUM TO: Mr. Justice Powell FROM: Joel Klein DATE: July 14, 1975 DeFunis Moot Court I am writing this as I prepare to leave and, as you might expect, it is being done with perceptible dispatch. Thus you will understand if it lacks the typical insight and acumen that heretofore has marked my work. I have assembled the briefs, our office file and the recent Columbia Law Review symposium on DeFunis. This will be more than enough. Our set of briefs apparently has been burned so I have borrowed the library set. The best briefs were written by Professors Bickel and Kurland for DeFunis' position and by Professor Cox for the other side. The questions I would propose are: 1. Does DeFunis have standing to raise this challenge? Is it sufficiently clear that, but for the racial preference, he would have been admitted? (After Warth this is an important question, although I suspect one would conclude that DeFunis had standing.) 2. Is any state-imposed classification based on race per se unconstitutional? If not, do all such classifications require a compelling state interest to justify their purpose? I 2. Is there any distinction between a racial classification favoring a minority group from one that disfavors the minority? (On this last question John Ely at Harvard has written an article suggesting that the suspect classifications doctrine should apply only to classificatiomthat discriminate against a clearly defined insular minority.) 3. If a compelling interest is required, what kinds of interests will suffice? What are the interests alleged by the university in this case? How do such interests stack up? 4. Is there any constitutional distinction between a legislatively drawn classification and an administrative classification such as the one at issue here? If there is a distinction, should greater or lesser precision be required of the legislature? 5. If DeFunis prevails in this case does that mean that all minority preference schemes are invalid? Would t his mean that Title VII's affirmative action programs would be invalid? Is there any distinction in the fact that Congress has broad powers to implement the goals of the Fourteen th Amendment? See Katzenbach v. Morgan. Does anything turn on the fact that under Title VII there must first be a finding of a history of prior discrimination? Has such a showing been made here? If the university in question had been shown previously to have discriminated would that affect the outcome? 3. 6. Would this case be any different if the university used cultural deprivation rather than race as a factor for admission? Precisely what limitations may be placed on university admission policies? Is the university in this case doing anything different from most universities other than explicitly stating that rat e per se is a factor. 7. What are the costs of getting the federal courts involved in university admission policies? . Should every allegation of discrimination - be it against blacks, women, Indians, or what have you - in admission to state universities be cognizable under § 1983? Should the administrators be liable for damages if a case of discrimination have been made out? (This raises some of the Wood v. Strickland concerns that are obviously not too far in the background i f DeFunis prevails~ JK JUSTICE J, -:r_P ily is one of life's mos difficult times. Faced with the udden responsi f r making funer ar angements, any pe pie are unce tain wh re to turn f9 help. Important deci ions Peace must be ade • d quickl and 0 f min under stress- can including t be of a f\Jnera director. L oking for Jamee D. Wilson-Newsweek planne . a NSM Law class in California: Are whites being discriminated against? firm wil m ke your DeFunis had been deprived of equal choice e s r. Racism in Reverse protection of the law under the Four NSM is n interna For almost a decade-a decade of un teenth Amendment and ordered the tional pr essional precedented racial and social tumult school to enroll him. the issue lay untouched, rather like . a The university complied (DeFunis is associati of funeral bomb that could be removed only if scheduled to graduate in June), but to directors ho are fully someone set the fuse. Last week, the protect its admissions policies it ap to the fu se was finally set. The U.S. Supreme pealed, and the state supreme court up of Good Court heard arguments on one of the held the school. The university argued most critical civil-rights issues of the successfully that DeFunis was a marginal 1970s: docs the Fourteenth Amendment candidate, that 29 whites who had bet (which was framed to help relieve dis ter scores than J,e were also rejected crimination against blacks) prohibit spe and that 38 whiles with scores lower cial preferences in favor of blacks, if such than DeFunis had been admitted. This prefcrcnces discriminate against white proved, the law school contended, that it people on account of their race? In short, did not make decisions on grades and is "reverse discrimination" constitutional? test scores alone-that such other factors The casr, in point, DeFunis v. Ode as where the student was from, personal gaard, was filed by a white student at recommendations and extracurricular ac the University of Washington, who claims tivities were also given due weight. The he was denied admission to the univer school's lawyers also argued that a stu sity's law school to make room for less dent's race was one factor in enriching qualified blacks. nut this is a gut issue the diversity of the student body and that reaches far beyond university-ad that increasing the number of minority missions policies. The Court's decision, students would help add to the shock which is expected in a month or two, ingly low number of minority lawyers in stands to have a profound effect on the the state and the nation. job market. It will affect every white who Equals: In effect, the law school main believes that a black was given a racial tained that almost all of the 1,601 candi preference in getting a job or a promo dates for the 150 places in DeFunis's tion- and every man who thinks that he class were qualified and that it was was unfairly passed over in favor of a choosing among equals. But the fact re woman. The DcFunis suit could prove a mains that many of the minority appli direct challenge to the "affirmative ac cants were a:m1Ued wttFi gradE's and tion" concept outlined in the 1964 Civil test 'SCores-be w1e lormal cutoff point Highls Act to increase the employment for Wliites. The school even conceded of minorities in almost every segment of that in its admissions process it actually American industry. put minority candidates (blacks, chica The central figure in the case is Marco nos, Philippine-Americans and American For information write DcFunis, 22, a Phi Beta Kappa graduate Indians) in a JreParatetlOOR for special Consumer Information Bure11u, Inc. of the University of Washington, who consideration. ''W'tia~ersity did," Evanston, Illinois 60201 filed his suit in 1971 (against university DeFunis's lawyer Josef Diamond told the presidPnt Charles Odegaard and others) Supreme Court, "was admit two classes, A subsidiary of after the law school failed to admit him. not one." National Selected Morticians DeFunis established that 36 minority As DeFunis's attorneys hinted, such a Independent -lntem!ltionel students had been admitted although guarantee of places for minorities raised their college grades and Law School the ugly specter of a "quota" system. Admission Test scores were inferior to And it provoked a brilliantly reasoned his. A trial court in Seattle found that amicus curiae brief supporting DeFunis, w1illen ior tho Anli-JJclamalion League without special treatment of minorities, of B'nai B'rith by Prof. Philip Kurland of DeFunis's class would have been "lily the University of Chicago and Prof. Al white." The Bickel-Kurland brief bridled exander Bickel of Yale. The Anti-Defa at the implicit suggestion that some form mation League, which has fought long of "reverse discrimination" is constitu and hard for black equality as well as tionally permissible. "Those for whom for its principal Jewish constituency, racial equality was demanded arc now found itself on the other side this time to be more equal than others," the pro because of the presumption that many fessors argued. "Having found support Jewish students may in the future be in the Constitution for equality, they now sacrificed to minority preferences. "The claim support for inequality under the numerus clausus, the racial quota that is same Constitution." involved in this case," wrote Kurland and It is a sign of the merits on both sides Bickel, "is of particular concern to the that few observers are confident of the Jewish minority in this country because outcome. Perhaps the Supreme Court of the long history of discrimination will find its own compromise. It could against Jews by the use of quotas ... approve generally the university's affirm After only 30 or 40 years of open ad ative-action efforts, while disapproving missions, the universities which, for cen quotas and denying that they even exist turies, set the style in excluding or restricting Jewish students may again be able to do so." Talent: DeFunis has a host of other allies. They include the Joint Civic Ac tion Committee of Italian-Americans, the Advocate Society (a Polish-American lawyers' association), the AFL-CIO, the National Association of Manufacturers and the U.S. Chamber of Commerce. In ) all, nearly three dozen "friend of the I court" briefs, on behalf of nearly 100 organizations, have been filed on both sides of the DeFunis case. Erstwhile special ':Proseoutot Archibald · Cox and the former deans of the Yale · and Harvard law schools, Louis Pollak and Erwin Griswold, all have filed briefs defending the University of Washington. They were joined by such groups as the American Bar Association, which cited DcFunis: Setting the fuse its efforts to increase the proportion of U.S. lawyers who are black (now 1 per in this case. "Hard cases," it is often said, cent, compared to a 12 per cent black "make bad law." DeFunis is clearly a population), the National Urban Coali hard case, and whichever way it goes, a tion and the battalion of other education great many people seem sure to consider al institutions, including the national the outcome bad law. associations of both law schools and med -JERROLD K. FOOTLICK ical schools. For th'eir part, the universities and professional schools concede that they Hoffman v. the Lord go out of their way to increase minority Chicago's irascible 78-ycar-old Judge enrollment. But they contend that this is Julius J. Hoffman is rapidly turning into part of a natural effort to get a good mix one of the most :flamboyant judicial losers of students-just as in the past they have of recent years. Hoffman presided over admitted children of rich alumni and the trial of the Chicago Seven-and then 220-pound running backs with doubtful saw the convictions reversed on appeal. academic credentials. In his cogent brief Next, an appeals court dismissed most . on behalf of Harvard, Cox spelled out of the contempt citations Hoffman met 1rl• "'"' ,lo!o •• l >~•l;f.:liohf.: •A~ l:.l~• ~ the goal of a diverse student body. "If ed out in that trial. Now another Hoff •. · ~ •t ' t:l.:,~ot:tol~t~h.,,,,, ''••IIIII : scholarly excellence were the sole or man ruling has been upset-this time in Jr\~1,1' •1: i~~t: lrl.hW ~ ~. , ,,_.~''-"' even predominant criterion, Harvard Col the interest of romance. • · ~~~ •rl • II"I~Nrlt:ll •I• lege would lose a great deal of its vitality Hoffman promised a young lawyer ''-1~1:.\r l i:ll ~~~ t(ol~ol.;;io ; and intellectual excellence," Cox argued. that he would suspend a trial so that the I~ •t~lll . rlh';;, l11~~ ,rl. t/?l~(.:.l,!l•. -• • ! "A farm boy from Idaho can bring some lawyer could be married and take a l~ll(*lhl~!: •nlol.:lk 1.~-'y<::l~t* l~l•lt ~ thing to Harvard College that a Bostoni two-week honeymoon. "I don't want to interfere with the work of the Lord," ;:•P- ;1"11o t ~:~):JIIl• l ·an cannot offer. Similarly, a black student can usually bring something that a white the judge smiled. Then, three days person cannot offer. The quality of the into the trial-with no explanation-he educational experience of all the stu changed his mind. "I don't shut do1n1 dents ... depends in part on these differ the U.S. district court even for the Lord," ences in the background and outlook Hoffman proclaimed. The lawyer then that students bring with them." rushed to the U.S. court of appeals. In a Representing the university before the matter of hours, the appellate court Supreme Court, Washington Attorney ruled for the lawyer, the Lord and love General Slade Gorton pointed out that -and the honeymoon began on schedule.