UCLA National Black Law Journal

Title DeFunis v. Odegaard: Opinion of the Supreme Court

Permalink https://escholarship.org/uc/item/04w3r3n1

Journal National Black Law Journal, 3(3)

ISSN 0896-0194

Author NBLJ, [No author]

Publication Date 1973

Peer reviewed

eScholarship.org Powered by the California Digital Library University of California THE BLA CK LA W JO URNA L PAGE 269 THE BLACK LA WIOURNAL PAGE 269

DeFUNIS v. ODEGAARD 82 Wash. 2d 11, 507 P.2d 1169 (1973) SUPREME COURT OF WASHINGTON

Defendants, who include the members of the cause and that the complaint failed to the Board of Regents of the University of state a claim upon which relief could be Washington, the President of the University, granted. and the Dean and certain members of the Ad- The superior court dismissed that portion missions Committee of the University of of the plaintiff's complaint seeking monetary Washington School of Law, appeal from a damages. The balance of defendants' motion judgment ordering them to admit plaintiff to dismiss was denied, and a temporary in- Marco DeFunis, Jr., as a first-year student to junction was entered enjoining the defendants the University of Washington School of Law, from admitting students to the law school "in as of September 22, 1971. a number which would preclude the admission Broadly phrased, the major question of plaintiff, Marco DeFunis, Jr., to the 1971- presented herein is whether the law school 72 first year class, should his admission even- may, in consonance with the equal protection tually be ordered by the court." After a non- provisions of the state and federal con- jury trial, the court ruled that in denying stitutions, consider the racial or ethnic plaintiff admission to the law school, the background of applicants as one factor in the University of Washington had discriminated selection of students. against him in violation of the equal protec- Marco DeFunis, Jr. (hereinafter plaintiff), tion of the laws guaranteed by the fourteenth his wife, and his parents commenced an action amendment to the United States in the superior court, alleging that plaintiff, an Constitution.... applicant for admission to the University of [DeFunis' application to the law school was Washington School of Law (hereinafter law considered by a committee of six faculty school) for the class commencing September members and three law students. The law 1971, had been wrongfully denied admission school received 1601 applications for admis- in that no preference was given to residents of sion in the fall of 1971, and planned to accept the state of Washington in the admissions some 200 applications in order to arrive at a process and that persons were admitted to the first-year class that would number 145 to 150. law school with lesser qualifications than Most of the applicants were considered by the those of plaintiff. The complaint asked that committee to be qualified for law study. the court order the defendants to admit and [Each applicant was assigned a "Predicted enroll plaintiff in the law school in the fall of First-Year Average" (PFYA), based on un- 1971 and, upon the failure of defendants to do dergraduate grades and test scores. The files so, that plaintiffs recover damages in the sum of applicants with PFYAs of over 77 were of not less than $50,000. reviewed by the full committee and acted The superior court granted a temporary upon (mostly favorably) as they came in. The restraining order and order to show cause, files of applicants with PFYAs under 74.5 restraining defendants from selecting students were reviewed by the committee chairman, for admission to the law school during the and many were rejected. Some, however, were pendency of the action. Defendants, in turn, placed in a group for later review by the com- moved to dismiss the complaint on the mittee. The files of applicants with PFYAs grounds that the court lacked jurisdiction of between 74.5 and 77 were held until the pass- PAGE 270 THE BLA CK LA W JO URNA L PAGE 270 THE BLACK LA WJOURNAL ing of the application deadline, so that the full II. pool of applicants could be considered for the remaining positions in the entering class. The essence of plaintiff's Fourteenth Applicants who had previously been admitted Amendment argument is that the law school to the law school, but who had been unable to violated his right to equal protection of the enroll because of military service, were placed laws by denying him admission, yet accepting in this pool even though their PFYAs were certain minority applicants with lower below 74.5. Similarly, all files of "minority" PFYAs than plaintiff who, but for their applicants - defined by the committee as minority status, would not have been ad- "Black Americans, Chicano Americans, mitted. American Indians and Philippine Americans" To answer this contention we consider three - were placed in this pool, regardless of implicit, subordinate questions: (A) whether PFYA. race can ever be considered as one factor in [DeFunis had junior-senior grades averag- the admissions policy of a state law school or ing 3.71. He took the LSAT three times, and whether racial classifications are per se un- his scores (512, 566, 688) average 582; his constitutional because the equal protection of writing test scores averaged 61. Under the the laws requires that law school admissions U.W. system, his PFYA was 76.23. His file be "colorblind"; (B) if consideration of race is was placed in the pool. not per se unconstitutional, what is the ap- [DeFunis was placed on a waiting list, and propriate standard of review to be applied in ultimately not admitted. Of those applicants determining the constitutionality of such a admitted, 74 had lower PFYAs than did classification; and (C) when the appropriate DeFunis. Of the 74, 36 were minority standard is applied does the specific minority students, 22 were returning veterans, and 16 admissions policy employed by the law school were thought by the committee to deserve ad- pass constitutional muster? mission "on the basis of other information contained in their files." Of the 36 minority students admitted, 18 actually enrolled. The A. trial court found that some of the minority ad- mittees had undergraduate grades and LSAT Relying solely on Brown v. Board of Educa- 686, 98 L.Ed. 873 scores that would have placed them in the tion, 347 U.S. 483, 74 S.Ct. group rejected by the committee chairman, (1954), the trial court held that a state law but for their racial or ethnic characteristics.] school can never consider race as one criterion in its selection of first-year students. In The trial court concluded . . . that, in denying holding that all such racial classifications are plaintiff admission to the law school, the per se unconstitutional, the trial court stated University of Washington discriminated in its oral opinion: against him and did not accord to him equal Since no more than 150 applicants were to protection of the laws as guaranteed by the be admitted the admission of less qualified fourteenth amendment to the United States resulted in a denial of places to those Constitution; and therefore, that plaintiff otherwise qualified. The plaintiff and others in should be admitted to the law school for the this group have not, in my opinion, been ac- class of 1974, beginning September 22, 1971. corded equal protection of the laws guaranteed by the Fourteenth Amendment. In 1954 the United States Supreme Court decided that public education must be equally I. available to all regardless of race. After that decision the Fourteenth Amend- ment could not longer be stretched to accom- [The Washington Supreme Court conclud- modate the needs of any race. Policies of dis- ed that DeFunis had standing to challenge the crimination will inevitably lead to reprisals. In law school's minority-admissions policy.] my opinion the only safe rule is to treat all THE BLACK LA W JOURNAL PAGE 271 THE BLACK LA WJOURNAL PAGE 271

races alike, and I feel that is what is required preferences to certain disadvantaged racial under the equal protection clause. minorities will be to stigmatize whites. In Brown v. Board of Education, supra, the O'Neil, Preferential Admissions: Equalizing Supreme Court addressed a question of the Access of Minority Groups to Higher primary importance at page 493, 74 S.Ct. at Education, 80 Yale L.J. 699, 713 (1971). page 691: [6] While Brown v. Board of Education, Does segregation of children in public schools supra, certainly provides a starting point for solely on the basis of race, even though the our analysis of the instant case, we do not physical facilities and other "tangible" factors agree with the trial court that Brown is dis- may be equal, deprive the children of the positive here. Subsequent decisions of the minority group of equal educational oppor- United States Supreme Court have made it tunities? We believe that it does. clear that in some circumstances a racial The Court in Brown held the equal protec- criterion may be used - and indeed in some tion clause of the Fourteenth Amendment circumstances must be used - by public prohibits state law from requiring the opera- educational institutions in bringing about tion of racially segregated, dual school racial balance. School systems which were systems of public education and requires that formerly segregated de jure now have an the system be converted into a unitary, non- affirmative duty to remedy racial imbal- racially segregated system. In so holding, the ance .... Court noted that segregation inevitably [7] Thus, the Constitution is color con- stigmatizes Black children: scious to prevent the perpetuation of discrimi- To separate them from others of similar age nation and to undo the effects of past segrega- and qualifications solely because of their race tion. In holding invalid North Carolina's generates a feeling of inferiority as to their anti-bussing law, which flatly forbade assign- status in the community that may affect their hearts and minds in a way unlikely ever to be ment of any student on account of race or for undone. the purpose of creating a racial balance or ratio in the schools and which prohibited Brown v. Board of Education, supra, at page bussing for such purposes, the Court stated: 494, 74 S.Ct. at page 691. Moreover, "The [T]he statute exploits an apparently neutral impact is greater when it has the sanction of form to control school assignment plans by the law; for the policy of separating the races directing that they be "color blind"; that re- the background of segre- is usually interpreted as denoting the inferiori- quirement, against gation, would render illusory the promise ty of the negro group." Id. at page 494, 74 of Brown v. Board of Education, 347 U.S. 483, S.Ct. at page 691. 74 S. Ct. 686, 98 L.Ed. 873 (1954). Just as [4, 5] Brown did not hold that all racial the race of students must be considered in de- classifications are per se unconstitutional; termining whether a constitutional violation rather, it held that invidious racial has occurred, so also must race be consid- ered in formulating a remedy. classifications - i. e., those that stigmatize a North Carolina State Board of Education v. racial group with the stamp of inferiority - are unconstitutional. Even viewed in a light Swann, 402 U.S. 43, 45, 91, S.Ct. 1284, most favorable to plaintiff, the "preferential" 1286, 28 L.Ed.2d 586 (1971). Accord, United minority admissions policy administered by States v. Jefferson County Board of Educa- the law school is clearly not a form of in- tion, 372 F.2d 836 (5th Cir. 1966), aff'd en vidious discrimination. The goal of this policy banc, 380 F.2d 385 (1967), cert. denied sub is not to separate the races, but to bring them nom. Board of Education of Bessemer v. together. And, as has been observed, United States, 389 U.S. 840, 88 S.Ct. 77, 19 L.Ed. 2d 104 (1967). Preferential admissions do not represent a covert attempt to stigmatize the majority race [8] Clearly, consideration of race by school as inferior; nor is it reasonable to expect that a authorities does not violate the Fourteenth possible effect of the extension of educational Amendment where the purpose is to bring PAGE 272 THE BLACK LA WJOURNAL together, rather than separate, the races. The until at least 20 minority persons have been so "minority" admissions policy of the law hired. school, aimed at insuring a reasonable Carter v. Gallagher, 452 F.2d 315, 331 (8th representation of minority persons in the stu- Cir. 1971); cert. denied 406 U.S. 950, 92 S.Ct dent body, is not invidious. Consideration of 2045, 32 L.Ed.2d 338 (1972). Thus, the court race is permissible to carry out the mandate of ordered the department to hire minority Brown, and, as noted, has been required in applicants, although in doing so a more some circumstances. qualified nonminority applicant might be [9] However, plaintiff contends that cases bypassed. Cf. Contractors Ass'n of Eastern such as Green v. County School Board, supra, Pennsylvania v. Secretary of Labor, 442 F.2d and Swann v. Charlotte/Meckenburg Board 159 3d Cir. 1971), cert. denied, 404 U.S. 854, of Education, supra, are inapposite here since 92 S.Ct. 98, 30 L.Ed.2d 95 (1971). none of the students there involved were [10] We conclude that the consideration of deprived of an education by the plan to race as a factor in the admissions policy of a achieve a unitary school system. It is state law school is not a per se violation of the questionable whether defendants deprived equal protection clause of the Fourteenth plaintiff of a legal education by denying him Amendment. We proceed, therefore, to the admission. But even accepting this conten- question of what standard of review is ap- tion, arguendo, the denial of a "benefit" on propriate to determine the constitutionality of the basis of race is not necessarily a per se such a classification. violation of the Fourteenth Amendment, if the racial classification is used in a compensatory B. way to promote integration. For example, in Porcelli v. Titus, 431 F. 2d [11] Generally, when reviewing a state- 1254 (3d Cir. 1970), cert. denied, 402 U.S. created classification alleged to be in violation 944, 91 S.Ct. 1612, 29 L.Ed.2d 112 (1971), a of the equal protection clause of the group of white teachers alleged that the school Fourteenth Amendment, the question is board had bypassed them in abolishing the whether the classification is reasonably regular promotion schedule and procedure for related to a legitimate public purpose. And, in selecting principals and vice-principals, and applying this "rational basis" test "[A] dis- had given priority to Black candidates in crimination will not be set aside if any state of order to increase the integration of the facts reasonably may be conceived to justify system's faculty. In upholding the board's it." McGowan v. Maryland, 366 U.S. 420, judgment to suspend the ordinary promotion 426, 81 S.Ct. 1101, 1105, 6 L.Ed.2d 393 system upon racial considerations, the court (1961). stated: [12] However, where the classification is based upon race, a heavier burden of justifica- State action based partly on considerations of tion is imposed upon the state. In overturning color, when color is not used per se, and in Virginia's antimiscegenation law, the Su- furtherance of a proper governmental objec- preme Court explained this stricter standard tive, is not necessarily a violation of the Fourteenth Amendment. of review: Porcelli v. Titus, supra, at page 1257. The clear and central purpose of the Similarly, the Eighth Circuit concluded Fourteenth Amendment was to eliminate all that in order to eradicate the effects of past official state sources of invidious racial dis- discrimination, crimination in the States. [Citations omitted.] ... At the very least, the Equal Protection [1It would be in order for the district court to Clause demands that racial classifications, es- mandate that one out of every three persons pecially suspect in criminal statutes, be sub- hired by the [Minneapolis] Fire Department jected to the "most rigid scrutiny," [citation would be a minority individual who qualifies omitted] and, if they are ever to be upheld, THE BLACK LA W JOURNAL PAGE 273 THE BLACK LA WIOURNAL PAGE 273

they must be shown to be necessary to the ac- rather than de jure. Thus, reasons plaintiff, complishment of some permissible state ob- since the law school itself has not actively dis- jective, independent of the racial discrimina- criminated against minority applicants, it tion which it was the object of the Fourteenth Amendment to eliminate... may not attempt to remedy racial imbalance There is patently no legitimate overriding in the law school student body, and, conse- purpose independent of invidious racial dis- quently, throughout the legal profession. We crimination which justifies this classification. disagree. Loving v. Virginia, 388 U.S. 1, 10-11, 87 S.Ct. 114] In State ex rel. Citizens Against Man- 1817, 1823, 18 L.Ed. 2d 1010 (1967). Accord, datory Bussing v. Brooks, 80 Wash. 2d 121, McLaughlin v. Florida, 379 U.S. 184, 85 128, 492 P.2d 536, 541 (1972), we held that S.Ct. 283, 13 L.Ed.2d 222 (1964); Hunter v. whether the nature of segregation is de jure or Erickson, 393 U.S. 385, 89 S.Ct. 557, 21 de facto is of no consequence where a volun- L.Ed.2d 616 (1969). tary plan of eliminating racial imbalance is It has been suggested that the less strict adopted by school officials: "rational basis" test should be applied to the Reason impels the conclusion that, if the consideration of race here, since the racial dis- Constitution supports court directed man- tinction is being used to redress the effects of datory bussing to desegregate schools in a past discrimination; thus, because the persons system which is dual "de jure," then such normally stigmatized by racial classifications bussing is within the appropriate exercise of authorities in a system are being benefited, the action complained of the discretion of school which is dual "de facto." should be considered "benign" and reviewed under the more permissive standard. This conclusion is supported by the reason- However, the minority admissions policy is ing of the district court in Barksdale v. certainly not benign with respect to non- Springfield School Committee, 237 F. Supp. minority students who are displaced by it. See 543, 546 (D. Mass. 1965), vacated on other O'Neil, Preferential Admissions: Equalizing grounds, 348 F.2d 261 (1st Cir. 1965): the Access of Minority Groups to Higher It is neither just nor sensible to proscribe Education, 80 Yale L.J. 699, 710 (1971). segregation having its basis in affirmative to [13] The burden is upon the law school to state action while at the same time failing provide a remedy for segregation which grows show that its consideration of race in admit- out of discrimination in housing, or other ting students is necessary to the accomplish- economic or social factors. ment of a compelling state interest. Significantly, this case does not present for C. review a court order imposing a program of desegregation. Rather, the minority ad- It can hardly be gainsaid that the minorities missions policy is a voluntary plan initiated by have been, and are, grossly underrepresented school authorities. Therefore, the question in the law schools - and consequently in the before us is not whether the Fourteenth legal profession - of this state and this Amendment requires the law school to take nation. We believe the state has an over- affirmative action to eliminate the continuing riding interest in promoting integration in effects of de facto segregation; the question is public education. In light of the serious un- whether the Constitution permits the law derrepresentation of minority groups in the school to remedy racial imbalance through its law schools, and considering that minority minority admissions policy. In refusing to en- groups participate on an equal basis in the tax join school officials from implementing a plan support of the law school, we find the state in- to eradicate de facto school segregation by the terest in eliminating racial imbalance within use of explicit racial classifications, the Sec- public legal education to be compelling. ond Circuit observed: "That there may be no Plaintiff contends, however, that any dis- constitutional duty to act to undo de facto crimination in this case has been de facto, segregation, however, does not mean that PAGE 274 THE BLA CK LA W JO URNA L PAGE 274 THE BLACK LA WJOURNAL such action is unconstitutional." Offermann to show the requisite connection between the v. Nitkowski, 378 F.2d 22, 24 (2d Cir. 1967). racial classification employed and that in- The de jure-de facto distinction is not con- terest. The consideration of race in the law trolling in determining the constitutionality of school admissions policy meets the test of the minority admissions policy voluntarily necessity here because racial imbalance in the adopted by the law school. Further, we see law school and the legal profession is the evil no reason why the state interest in eradicating to be corrected, and it can only be corrected the continuing effects of past racial dis- by providing legal education to those minority crimination is less merely because the law groups which have been previously deprived. school itself may have previously been neutral It has been suggested that the minority ad- in the matter. missions policy is not necessary, since the The state also has an overriding interest in same objective could be accomplished by im- providing all law students with a legal educa- proving the elementary and secondary educa- tion that will adequately prepare them to deal tion of minority students to a point where they with the societal problems which will confront could secure equal representation in law them upon graduation. As the Supreme Court schools through direct competition with non- has observed, this cannot be done through minority applicants on the basis of the same books alone: academic criteria. This would be highly desirable, but 18 years have passed since the [Alithough the law is a highly learned profes- decision in Brown v. Board of Education, sion, we are well aware that it is an intensely practical one. The law school, the proving supra, and minority groups are still grossly ground for legal learning and practice, cannot underrepresented in law schools. If the law be effective in isolation from the individuals school is forbidden from taking affirmative and institutions with which the law interacts. action, this under-representation may be Few students and no one who has practied law perpetuated indefinitely. No less restrictive would choose to study in an academic vacuum, removed from the interplay of ideas means would serve the governmental interest and the exchange of views with which the law here; we believe the minority admissions is concerned. policy of the law school to be the only feasible "plan that promises realistically to work, and S. Sweatt v. Painter, 339 U.S. 629, 634, 70 Ct. promises realistically to work now." Green v. 848, 850, 94 L.Ed. 1114 (1950). County School Board, supra, 391 U.S. at critical [15] The legal profession plays a page 439, 88 S.Ct. at page 1694. role in the policy making sector of our society, We conclude that defendants have shown whether decisions be public or private, state or the necessity of the racial classification herein local. That lawyers, in making and influencing to the accomplishment of an overriding state these decisions, should be cognizant of the interest, and have thus sustained the heavy views, needs and demands of all segments of burden imposed upon them under the equal society is a principle beyond dispute. The protection provision of the Fourteenth educational interest of the state in producing a Amendment. racially balanced student body at the law school is compelling. There remains a further question as to the Finally, the shortage of minority attorneys scope of the classification. A validly drawn - and, consequently, minority prosecutors, classification is one "which includes all [and judges and public officials - constitutes an only those] persons who are similarly situated undeniably compelling state interest. If with respect to the purpose of the law." minorities are to live within the rule of law, Tussman & ten-Broek, The Equal Protection they must enjoy equal representation within of the Laws, 37 Calif.L. Rev. 341, 346 (1949). our legal system. The classification used by defendants does not Once a constitutionally valid state interest include all racial minorities, but only four has been established, it remains for the state (Blacks, Chicanos, Indians and Philippine THE BLA CK LA W JO URNA L PAGE 275 THE BLACK LA WJOURNAL PAGE 275

Americans). However, the purpose of the HALE, Chief Justice (dissenting). racial classification here is to give special con- Racial bigotry, prejudice and intolerance sideration to those racial minority groups will never be ended by exalting the political which are underrepresented in the law schools rights of one group or class over that of and legal profession, and which cannot secure another. The circle of inequality cannot be proportionate representation if strictly sub- broken by shifting the inequities from one jected to the standardized mathematical man to his neighbor. To aggrandize the first criteria for admission to the law school. will, to the extent of the aggrandizement, In selecting minority groups for special diminish the latter. There is no remedy at law consideration, the law school sought to iden- except to abolish all class distinctions tify those groups most in need of help. The heretofore existing in law. For that reason, chairman of the admissions committee the constitutions are, and ever ought to be, testified that Asian-Americans, e. g., were not color blind. Now the court says it would hold treated as minority applicants for admissions the constitutions color conscious that they purposes since a significant number could be may stay color blind. I do not see how they admitted on the same basis as general can be both color blind and color conscious at applicants. In light of the purpose of the the same time toward the same persons and minority admissions policy, the racial on the same issues, so I dissent. classification need not include all racial The court, as I see it, upholds palpably dis- minority groups. The state may identify and criminatory law school admission practices of correct the most serious examples of racial the state university mainly because they were imbalance, even though in so doing it does not initiated for the laudable purpose of enhanc- provide an immediate solution to the entire ing the opportunities of members of what are problem of equal representation within the described as "ethnic minorities." It thus legal system. suggests a new rule of constitutional inter- We hold that the minority admissions pretation to be applied here that, if the ad- policy of the law school, and the denial by the ministrative intentions are adequately noble in law school of admission to plaintiff, violate purpose, Mr. DeFunis may be deprived of neither the equal protection clause of the equal protection of the laws and certain fourteenth amendment to the United States special immunities and privileges may be Constitution nor Article 1 s. 12 of the granted to others which, on the same terms, Washington State Constitution.... are denied to him. One should keep in mind [The court also rejected various other the wisdom of the old saying that the road to arguments based on provisions of the perdition is paved with good intentions. Washington Constitution and on state statutes.] The court holds that the university law school may give preferential treatment to per- The judgment of the trial court is reversed. sons who come from groups "which have been The foregoing opinion was prepared by historically suppressed by encouraging their Justice Marshall A. Neill while a member of enrollment within the various programs this court. It is adopted by the undersigned as offered at the University." But what seems to the opinion of the court. me to be a flagrant departure from the con- FINLEY, HAMILTON, STAFFORD, stitutions, ignored by the court, is epitomized WRIGHT and UTTER, JJ., and TUTTLE, in the statement that the admission policy was J. pro tem., concur. adopted by the law school "to increase par- [Justice WRIGHT added a brief concurring ticipation within the legal profession by per- opinion, in which Justices FINLEY and sons from racial and ethnic groups which have STAFFORD concurred, recommending that been historically denied access to the profes- the law school make available "more com- sion and which, consequently, are grossly un- plete published standards for admission."] derrepresented within the legal system." This PAGE 276 THE BLACK LA W JOURNAL PAGE 276 THE BLACK LA WJOURNAL assertion confesses to prior racial discrimina- nority students were both poor and culturally tion which I doubt existed, and fails to deprived, supplied the modus vivendi for the recognize, in a case where the demand for scheme of preferences. It ignored the corre- seats in the law school is much greater than lative assumption which inevitably had to be the school's capacity, that the increased made that neither Mr. DeFunis nor any of the minority participation assured by such admis- nonminority applicants had been equally cul- sion procedures inevitably produces a cor- turally or economically deprived .... relative denial of access to nonminority The main stream of current constitutional applicants. law runs forthrightly against the dis- what may be describ- Thus, in keeping with criminatory practice of preferential treatment horizons of latter-day ed as the expanding based on race, color, or ethnic origin. In constitutional principles in perpetual McLaughlin v. Florida, 379 U.S. 184, 85 S.Ct and assertion, the court processes of invention 283, 13 L.Ed.2d 222 (1964), an adultery discovers in an administrative agency of the statute imposing greater penalties when the state the power to determine, first, who, participants were of different races was held among the applicants, shall be classified as unconstitutional under the Fourteenth Americans, Black Americans, Chicano Amendment. Despite the wide legislative American Indians and Philippine Americans judgment to be sustained in determining and, then, a concomitant power to exlude all whether an act is reasonably designed to at- other ethnic minorities, including Asian tack the evil aimed at, any classification based Americans, from the preferred classification. upon race must, it was held, be suspect at the It lets the agency grant preferences - or as outset on the general rule that the constitution in- they more accurately should be described, and amendments were intended to eliminate not dulgences - accordingly. For reasons all racial discrimination arising from official the record, Asian Americans and all clear in actions. Boiling v. Sharpe, 347 U.S. 497, 74 others of different ethnic derivation than those S.Ct. 693, 98 L.Ed. 884 (1954). enumerated are not included among those to receive such preferences or indulgences ... As pointed out in McLaughlin v. Florida, In deciding which particular groups should supra, racial classification has been held in- be classified as ethnic minorities, the com- valid in many cases: race was required to be mittee on admissions first made an assump- designated in voting and property records tion supported by no evidence whatever, i. e., (Virginia State Board of Elections v. Hamm, that all of the accepted minority students ex- 379 U.S. 19, 85 S.Ct. 157, 13 L.Ed.2d 91 cept Asian Americans were of a lower (1964)); designation of race on nomination economic status than Mr. DeFunis. No com- papers and ballots (Anderson v. Martin, 375 parative investigation or study as to the finan- U.S. 399, 84 S.Ct. 454, 11 L.Ed.2d 430 cial condition or economic background was (1964)); racial segregation in public parks made to establish the relative economic and and playgrounds (Watson v. Memphis, 373 cultural condition of the students applying. It U.S. 526, 83 S.Ct. 1314, 10 L.Ed.2d 529 was thus categorically assumed that the ethnic (1963)); segregation in the public schools minority applicants were, to use the descrip- (Brown v. Board of Education, 349 U.S. 294, tive term current in academic circles, cul- 75 S.Ct. 753, 99 L.Ed. 1083 and 347 U.S. 483, turally deprived - meaning, one must sup- 74 S.Ct. 686, 98 L. Ed. 873 (1954)); segrega- pose, that the environmental factors sur- tion of the races in public transportation rounding a minority student and tending to (Gayle v. Browder, 352 U.S. 903, 77 S.Ct. affect his academic achievements were of a 145, 1 L.Ed.2d 114 (1956)); and as a social lower order than those surrounding white or practice even without sanction of ordinance or majority students. This sweeping and unsup- statute in public restaurants (Lombard v. ported assumption, derived from no real evi- Louisiana, 373 U.S. 267, 83 S.Ct. 1122, 10 dence whatever, that all of the admitted mi- L.Ed.2d 338 (1963)); and in public swimming THE BLACK LA WJOURNAL PAGE 277 THE BLACK LAWIOURNAL PAGE 277 areas. Baltimore v. Dawson, 350 U.S. 877, 76 classification which is based on race is valid," S. Ct. 133, 100 L.Ed. 774 (1955). All were and answered it with a statement of principles held repugnant to the constitution. If the which ought to control here: Fourteenth Amendment stands for anything Preferential treatment under the guise of at all, it should be clear from these decisions "affirmative action" is the imposition of one that it stands for the principle that all dis- form of racial discrimination in place of crimination based on race, religion, creed, another. The questions that must be asked in this regard are: must an individual sacrifice color or ethnic background by any state, its his right to be judged on his own merit by constitutions, its subdivisions, or its agencies, accepting discrimination based solely on the is prohibited. color of his skin? How can we achieve the goal of equal opportunity for all if, in the process, The majority concedes and the record is in- we deny equal opportunity to some? disputable that Petitioner DeFunis was ousted Mr. DeFunis came before the bar of the from the list of acceptable students solely Superior Court much as did petitioners, because of preference accorded others, and parents of school children, in Brown v. Board that this preference was granted to many sole- of Education, 347 U.S. 483, 74 S.Ct. 686, 98 ly becuase of race and ethnic origin. Even L.Ed. 873 (1954), asking that he not be denied though there are many areas of public admission to the university law school because endeavor where it would be deemed a valid of race or ethnic origin. The trial court and constitutional exercise of the police power properly ordered his admission. So, too, to provide special assistance for those would I, and, therefore, I would affirm. segments of our population described as dis- HUNTER, J., concurs. advantaged or poor, or culturally deprived, such special assistance could not con- HUNTER, Justice (dissenting). stitutionally deprive Mr. DeFunis of a seat in The majority supports a laudable purpose the law school and award it to a member of a - to enable students of certain minority races group whose existence is defined or controlled to enter the University of Washington School by considerations of race or ethnic origin. of Law in order that ultimately there will be a When the seat in the law school is awarded on greater representation of practicing lawyers of the basis of race or ethnic origin, the those races in the legal profession - with procedure necessarily falls within the con- which purpose I do not disagree. This must stitutional principles prohibiting racial be accomplished, however, by clear and segregation or preference.... not willful discrimination against students of The rationale of Anderson v. San Francisco other races as the Admissions Committee of Unified School Dist. (N.D. Cal. 1972), an opi- the University of Washington School of Law nion dated October 30, 1972, filed in the has done in this case by denying admission to United States District Court, Northern the respondent, Marco DeFunis, Jr., to this District of California, I think, expresses the school, as found by the trial court and amply principles which should govern the DeFunis supported by the record. case. That court held unconstitutional a This action by the Admissions Committee school district's plan to give preference in of the School of Law constitutes arbitrary and employment and promotions to members of capricious action, flaunting the guarantees of ethnic minorities in administrative and super- the equal protection provisions to all citizens visory positions, such as principals, assistant as provided in our state and federal con- principals, deans and heads of departments - stitutions. a plan designed to increase the numerical representation of ethnic minorities in the ad- The line of federal cases cited by the ma- ministration of the schools. That court, in jority are not in point. They stand for the holding the scheme unconstitutional, said that proposition that full opportunity for educa- "The key issue in this case is whether or not a tion be afforded to students of all races; PAGE 278 THE BLACK LA WJOURNAL whereas, the present case denies the oppor- Admissions Committee to admit the respon- tunity of education to students of one race to dent, Marco DeFunis, Jr., to the University of make room for students of other races and Washington School of Law. with lesser qualifications. HALE, J., concurs. I would affirm the trial court, directing the