DeFunis v. Odegaard – Oral Argument – February 26, 1974

Media for DeFunis v. Odegaard

Audio Transcription for Opinion Announcement – April 23, 1974 in DeFunis v. Odegaard

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Warren E. Burger:

We’ll hear arguments next in 72-1454, excuse me, 72-235, DeFunis against Odegaard.

Mr. Diamond.

Josef Diamond:

Mr. Chief Justice and members of the Court.

The plaintiffs, petitioners rather, brought this action for the reason that Marco DeFunis, Jr. was, on two occasions, wrongfully denied admission to the law school.

Now, we do not contend that mathematical grades alone were the sole admission criteria employed by the law school, but the record is clear that, taking all criteria in account, in the law school’s own judgment its minority program resulted into the admission of minority students less qualified than non-minority students who were rejected particularly because there appears to be some misconception of the facts by many of the amici briefs, and possibly also the respondents.

I’d like to discuss a little bit of the background and the factual situation with reference to Marco DeFunis.

At the time we agreed to represent Marco DeFunis, we had not met him and knew very little about him.

From the facts related to us, in which we were later able to verify, we were certain that there was something wrong.

Marco attended grade school and high school in Seattle, was graduated from the University of Washington as an honor student in 1970.

He received Phi Beta Capa, Magna Cum Laude, and notwithstanding the fact that he had worked 20-40 hours a week all the time that he was in college as manual labor for the Park Department of the city.

He also taught Sunday school.

He had a Junior-Senior grade point average of 3.71 out of a possible 4 as calculated by the law school, or a 3.8 when you include 9 hours of straight-A he received in Latin in the first quarter of his Junior year in the summer of 1968, which the law school would not, for some reason, consider.

In 1971, after he had been rejected by the law school and advised that if he tried again the following year there might be room for him, he went to graduate school at the same University of Washington.

He took 24 hours of graduate work, again working 30-40 hours a week with the Park Department, and he turned in grades of 21 hours of A.

At the time of his application, there were 3 hours of incomplete because he hadn’t got the grades as yet.

He had taken the law school admissions test on three occasions and received scores of 512, 566, and 568, and had writing scores of 62, 58, and 64.

The law school aptitude test of 668, which is the final one he took, was within the top 7% of all law school applicants across the nation who had ever taken it in the past several years.

For DeFunis as well as all other applicants, the Junior-Senior grade point averages and the LSAT scores were combined, using a formula to arrive to what was referred to as a predicted first year average, which in DeFunis’ case, was 76.23.

He had little money, and his wife worked as a dental assistant to help him through school and he was also helped by his parents.

He didn’t know why he was denied admission to the law school.

We didn’t know what his religion was, nor his race, nor whether he belonged to a so-called minority group, nor what constituted a minority group.

We didn’t think it mattered what his religion was or whether he was Black, Red, or White.

It was inconceivable to us that an honor student with the grades that he has: Phi Beta Capa, Magna Cum Laude, from the same university would not be qualified and would be denied admission to the university law school.

To us, it wasn’t possible that all those who were being admitted were better qualified than DeFunis.

We first met with the Dean of the law school and inquired “what was the basis of denial,” he had the Chairman of the Admissions Committee?

The only answer we could get was that there were other students better qualified than DeFunis.

We told him we couldn’t accept that.

We had to see something to verify that fact.

The records were confidential.

Even though we said we weren’t interested in names, just records to establish that there were 150 or more better qualified.

Josef Diamond:

“No, that was confidential matters.”

We next appeared and met with the Board of Regents, took his parents with us, I don’t think we took the boy.

Again, Board of Regents listened and said they would let us know, advised us that “no,” they were going to stand by the decision made by the Dean of the law School and the Admissions Committee, and that there was no room for Marco DeFunis.

We had no any alternative after he’d been denied twice, but to bring a lawsuit, and it was only after litigation was started and during pretrial discovery in the taking of depositions and in fact only during the trial itself that we’re able to get a Court order requiring the university to produce the files and the records of some of those who were being admitted, and we had to look at them during the noon hour because the trial was in process and the Court ordered them to be brought down to the Courtroom, but not all 1,500 or 1,600.

We settled for about 300 or 400 and during the noon hour, we went through those records.

And, the record here will show you what we found when we went through them and we put them in evidence is who they were taking into the school.

Now, what the university admissions class really did, they admitted two classes, not one.

They took the non-minority group and they looked at their grades, and we’re not saying they looked only at their grades but what else was there to look at?

There were no personal interviews.

They looked at their grades, and the file they had the grades, honors, recommendations, everybody had a recommendation that they produced, the application of the student, and that’s about all.

And, they determined, the Chairman of the Committee, that anybody who had a predicted first year average of 77 would automatically be admitted with a few exceptions, most of those came in later, and they actually admitted those too.

So, everyone who had a 77 or higher are automatically admitted.

Then, they took the next list and anyone that were 75 — 74.5, they were automatically eliminated with the exception of the minorities.

Potter Stewart:

On the returning servicemen?

Josef Diamond:

Yes, there were some returning servicemen, except those two, and we’re raising no question about the returning servicemen.

Potter Stewart:

They are —

Josef Diamond:

Most of them had previously been admitted and they were brought back, and we never at any time raised an issue about that.

Potter Stewart:

Now that I’ve interrupted you, you said during the noon hour you were able to get the 300 or 400 out of the 1,600 total applications.

Josef Diamond:

That’s correct to look at them.

Potter Stewart:

And look at them during the noon hour at the trial.

Were the 300 or 400 just randomly chosen or did that represent a particular category of the 1600?

Josef Diamond:

We requested all of the minority groups that were brought in and some of the additional others that were kind of at random.

There were 1,600.

We couldn’t get them.

We knew we wouldn’t really look at them all.

Potter Stewart:

Right.

Josef Diamond:

And so, we got those that we could look and we looked at them in the jury room during the noon hour and there was markings on the cover with most of them.

Potter Stewart:

Right.

Josef Diamond:

So, we could hurriedly go through it.

Potter Stewart:

And did this 300 or 400 include all who had been admitted to the law school?

Josef Diamond:

Yes, I believe so.

Now, when they divide it into two classes, they took the non-minority group and they determined they were less than between those — between 77 and 74.5 with the exception of the minority groups.

Now, the minority groups they took, and the Black minority groups they gave to one of the admission members who was a Black student, a freshman at the law school, and gave him to review.

They took the other non — the other minority groups and gave them to Dean Hunter on the admission group and had him review that.

William J. Brennan, Jr.:

Who decides a Negro were in the minority group?

Josef Diamond:

What was that?

William J. Brennan, Jr.:

Who decides Negroes were in the minority group?

Josef Diamond:

In the minority group, besides the Negroes, they had the Chicanos, the American-Indians, the —

Potter Stewart:

Filipino-Americans.

Josef Diamond:

Filipino-Americans and I think that’s it.

Now, that too was just an arbitrary determination.

So, out of the total number of minorities that had applied, there was some 70 and something like 40 of those were admitted.

Something around 60 or 65, close to 70% of all of the minorities that applied were admitted to the law school, but on the other hand, there was only something less than 10% of everyone else that was admitted.

Now, the — as they singled out the minorities, they were not thrown out if they were below 74.5, and we find that minorities were admitted with grades like 69.7, 67.14 compared to DeFunis with a 76.23, when 77 would’ve admitted him.

Now, the — in determining that the Black-Americans and the Chicanos and the Filipino-Americans and the American-Indians were minority applicants, there wasn’t any determine — actually, what constitute and how would you determine that you were a Black-American or you were a Chicano?

It’s not always that easy.

What’s their percentages or what not?

Well, you made your own characterization on the application blank as to what you were, but you weren’t required to, and no one told anyone that if you were one of the minorities, you’re going to get special treatment, but you did get special treatment and they set up two classes.

Now, when they had these two classes, in order to determine how many you’re going to allow in from each class, you had to arrive at a racial, there was no other way.

You’re going to allow all the minorities in or not, you couldn’t.

Well, the fact of the matter is they left a great percentage, some 60% of the minorities in and only 10% of the Whites.

But, they had to make a determination and call it what you please, is recorded.

William H. Rehnquist:

These are people who were offered admission, not people who actually enrolled.

Is that the truth?

Josef Diamond:

These are the ones that were admitted, that were offered admission, invited.

Yes, that’s correct.

They invited some 311 and was later stretched to 330 that were invited, knowing that there was some that would not come into the class and would go elsewhere, who had applied in more than one school, so that they could reduce it down and they would only have approximately 150.

Potter Stewart:

Is there in the appendix or anywhere else a copy of the application form, either Black or —

Josef Diamond:

No, I don’t think there is, but there is in the special appendix at page 44, I believe it is, a list of all those and their qualifications as to how they appeared.

Potter Stewart:

On the application form there was a blank for filling in the applicant’s race or ethnic background, was there?

Josef Diamond:

On the application form you were requested to circle one of the following.

The Afro-American, American-Indian, Caucasian, Mexican, or a Mexican-American, Oriental or Other: Specify and you’re asked to either circle or to specify, but it awarded its law admissions’ preferences to Black-Americans, Chicano-Americans, American-Indians, and Filipino-Americans.

Now, an applicant couldn’t characterize himself as a Filipino-American and, although Filipino-Americans were granted special admission preferences, an applicant could characterize himself as an Oriental-American but an Oriental wasn’t granted any special preference.

There was no indication at anytime that the minorities would be granted some preference, but you were requested to fill that out and you could do so or not as you please and you made your own self-determination as where you belong.

Now, if Marco had been invited as one of the three–

Potter Stewart:

Since there were no personal interviews, I suppose if Mr. DeFunis had circled one of these, he wouldn’t have given–

Josef Diamond:

We wouldn’t be here today.

Potter Stewart:

He’d be — he would’ve been —

Josef Diamond:

We wouldn’t have any problem, none.

Now, as there were 311 and later 330 who were invited to be enrolled, obviously, Marco is very anxious to get in.

If he had been invited, he would’ve had accepted and he would’ve been in.

Potter Stewart:

What is his ethnic?

Josef Diamond:

What was that?

Potter Stewart:

What is he?

What kind of an American is he?[Laughter]

Josef Diamond:

Well, he comes of Jewish parents.

I didn’t know at the time we brought this action.

I think, Sephardic Jew, if I’m not mistaken.

His parents lived in Seattle for more than 50 years.

Whether they were born there, I’m not sure.

He grew up there.

He’s a middle family.

His father, I think, is a furniture salesman.

He went to school, as I indicated, worked all the time, got help from his parents, help from his wife to get through school, and made his grades at the same time.

Potter Stewart:

But as I said to the —

Josef Diamond:

Was he an underprivileged or disadvantaged?

Now, there was no indication that the minorities that were being helped were underprivileged or disadvantaged or somebody that was poor or needed help.

No determination of any kind.

If you just fit in this category, well, you got special privilege.

Potter Stewart:

Just circle one of those.

Potter Stewart:

You’ve got special —

Josef Diamond:

If you just circle one of those.

Potter Stewart:

That’s you’re point.

Josef Diamond:

That’s correct.

They never saw you.

They didn’t know anything about you.

Now —

Harry A. Blackmun:

Is Mr. DeFunis still in law school?

Josef Diamond:

Yes, Mr. DeFunis is still in law school.

Harry A. Blackmun:

When does your last quarter or semester begin?

Josef Diamond:

It begins sometime, I believe, in February.

This – now —

Harry A. Blackmun:

And so he will graduate this spring presumably?

Josef Diamond:

Well, I’m hoping that he will graduate.

DeFunis is in law school.

Now, you asked for some briefs on the question of mootness and we furnished them to them — to you.

Mr. DeFunis will graduate in June, and he’s doing exceedingly well, provided you do not sustain the Supreme Court.

If you sustain the Supreme Court, he is only in law school at the present time because we have a stay signed by Judge Douglas or Justice Douglas which prevents the law school and the university from doing anything about him being in the school.

I might go back and say that when the Supreme Court of the State of Washington reversed the lower Court, we had a problem.

Mr. DeFunis was notified that he better apply to the school and they would — the Admissions Committee, and they would determine whether they’d let him back in school or not or whether he could stay in school.

Potter Stewart:

When was this?

I missed that.

Josef Diamond:

Right after the Supreme Court of the State of Washington entered their remitter and it came down, and at that time —

Potter Stewart:

That was during his second year?

Josef Diamond:

That’s right.

He was in his second year in school at that time.

The sole process, no fault of any party on either side, but the Supreme Court was a little bit slower in coming out with a decision and Marco was in school all this time.

And when that happened, we got a stay from Judge Douglas which prevented the university from doing anything about it.

Now, what they would’ve done, I don’t know but certainly, they had the right and he was, according to the decision of the Supreme Court of our state, illegally in school and he has been there in the eyes of his — the faculty and fellow students, illegally there because the Supreme Court has said “you were not rightfully there, but you’re there until this decision is made by this Court pursuant to a stay.”

William J. Brennan, Jr.:

Incidentally, Mr. Diamond, somewhere in one of these briefs, there’s hundreds of them, there’s a statement I think by the state that there’s an interval in February within which he must apply for admission to the final semester.

Josef Diamond:

Yes.

William J. Brennan, Jr.:

Has he applied within that interval?

Josef Diamond:

Well, I believe that that application for his last quarter, we run in quarters at our school, is sometime this month and I assume that he has applied because there’s a stay and there’s nothing to stop him.

I don’t know.

I think he has applied and I think if he hasn’t, he will apply.

And, I might also state further —

Potter Stewart:

This month —

Josef Diamond:

For the first time —

William J. Brennan, Jr.:

This month, today and the day after tomorrow.

Josef Diamond:

That’s right, and I think so he must be due.

I have not been in touch with him in the last couple of days I have been here.

I might state further that, for the first time, we have something in writing.

In the brief, respondent’s brief, they state that Mr. Marco DeFunis will graduate.

William J. Brennan, Jr.:

If he makes the application within this interval?

Josef Diamond:

I think that’s right, but if this Court reverses this decision, and assuming they could do it in the next — sometime before June or before he gets his diploma —

William J. Brennan, Jr.:

Well, if he —

Josef Diamond:

What have I got to protect Marco DeFunis?

I don’t know who’s going to be.

We just had a change in the Presidency of the university.

We can have a change in the faculty.

I have nothing, but a statement in the brief that says “we’re going to let him finish,” under a Court decision that says you are illegally in the school.

I don’t think we can rely on that.

I think we are entitled to and I think there’s something more.

William J. Brennan, Jr.:

Well, if — I guess the university should let him finish.

He’s on the law review, isn’t he?

Josef Diamond:

I don’t know.

I can’t answer that.

William J. Brennan, Jr.:

If he should finish and graduate, what about the question?

This is not a —

Josef Diamond:

Well, if this Court —

William J. Brennan, Jr.:

This is not a class type —

Josef Diamond:

If this Court keeps the decision under wraps until after June and he gets his diploma and graduates, I don’t think even if you then reverse it or what happens, I don’t think anybody will come and take his diploma away from him, but he — I don’t know whether you’re going to keep it that long.

I might also say and we have a brief, there’s more than just this one case now that we’ve got this far.

William J. Brennan, Jr.:

But this is not a class action, is it?

Josef Diamond:

No, it is not a class action and we’re not concerned with that.

But, under the authorities which we have submitted to you, and I think you’ve reviewed before you called to set this grant of certiorari, we did point out that there are other like situations which are going to come up and that this case ought to be decided.

Now, counsel has not taken the position that this case is moot.

We have not taken that this — a position that this case is moot and it is not, as far as we’re concerned.

We still have a live situation in spite of the statement which appeared just — when we got the respondent’s brief, which was only about two weeks ago, three weeks ago, where they stated that he would stay in school and finish if he registers, and he probably has registered by now.

Thurgood Marshall:

Mr. Diamond, would it be possible for you to find out whether or not he has registered and what happened if he did try to register, and let us know?

Josef Diamond:

Oh, I can, but I think you can assume that he either has or he will.

I don’t think anybody would stop at —

Thurgood Marshall:

I can’t speak for anybody, but myself and I cannot assume anything unless it’s in the record.

Josef Diamond:

Well, of course —

Warren E. Burger:

You’ll supply it.

Josef Diamond:

I’ll be glad to supply that to you.

Thurgood Marshall:

Well, why is it you don’t want to?

Josef Diamond:

I have no hesitancy about it, none whatsoever.

No, none whatsoever.

I just don’t have the information.

Maybe counsel has it.

I’m assuming that he has and I’m sure he has because he was instructed to go ahead and do it, and there’s no reason why he shouldn’t.

Harry A. Blackmun:

Mr. Diamond, if he does graduate and if this decision of the Washington Court is affirmed, will he nevertheless be eligible to take the Washington Bar Examination even though your Supreme Court has said he has been illegally in law school?

Josef Diamond:

I would think so, but I’m not too sure I can answer that question.

I believe, in the State of Washington, you can’t take the Bar Examination without having a degree.

I think you can, through an association with a lawyer obtain it and I do believe that he would be permitted to pass the Bar.

I think though that on the question of mootness, I think we have decided that or this Court has prior to this time, I think he is entitled to know and have a degree that he earned that is legally his, and that he has not got it by default.

And, I think in the briefs of the respondent, they say that this question will arise again and, as a matter of fact, I have in my office two clients, one girl and one man, waiting for the determination of this to see whether they can get into law school.

William H. Rehnquist:

But nothing in Justice Douglas’ stay order required the university to give him passing grades.

Josef Diamond:

Oh no, not at all.[Attempt to laughter]

William H. Rehnquist:

I don’t see how —

Josef Diamond:

No, he’s earning them.

William H. Rehnquist:

I don’t see how you could call his degree one by default then if we held the case were moot.

Josef Diamond:

No, I’m not saying that his degree would be one by default.

I am saying that he is in law school illegally.

The fact that he is making his grades and he is going to get his degree because he has passing grades and I think he’s near the top of his class, so that on that score we will have no problem.

But, he is not there, as far as his faculty — the faculty is concerned and as far as the other students.

He has had a difficult time because he is there only because of the time element involved in getting this question decided, and I think he is entitled to have a decision of this Court saying that he is rightfully there.

Now, I did want to make sure because I don’t know just how the respondents are going to present this matter, but I do want the Court to understand that it isn’t — there’s no question in this case but what the minorities were given per — preferential treatment and that Mr. DeFunis, if he was Black, he would’ve been admitted in the school.

The lower Court found that.

The Supreme Court of the state found that.

Now, the only thing they said, he was given — in the Supreme Court, he was given preference.

He was given special — the Blacks were given special treatment and the minorities, and the only reason that they reversed the lower Court was that they said there was an overriding public interest and I submit and we’ve set it forth in the briefs that there cannot be an overriding public interest on this question to admit those who are not equally qualified into the law school, and that’s the only basis and the only reason our Supreme Court allowed reversal of that case.

And, I want to be sure that we understand the testimony of Professor Kumer —

William H. Rehnquist:

Mr. Diamond.

Josef Diamond:

Yes?

William H. Rehnquist:

Let me interrupt you just a minute.

You’re not suggesting that a Law School Admissions Committee has to take the 150 brightest of the applicants or the ones who demonstrate the highest scores on a test, are you?

Josef Diamond:

No, sir.

I’m not saying that.

I am saying that they’ve got treat everybody alike and they’re not going to set up two classes, one minority and one non-minority.

They can set up any test they like and their going to have to, in my opinion, going to treat them alike and not treat them as two separate classes as they did here.

You had two separate groups, separate tests, and separate consideration for each of these two groups.

And, that, I think is a violation of the Fourteenth Amendment and a violation of the Civil Rights Act which we have pointed out.

William J. Brennan, Jr.:

And was it found here, Mr. Diamond, but for the special consideration given to minority groups, he would have been admitted?

Josef Diamond:

That’s right.

That was found in the lower Court.

It was also found in the Supreme Court of our state, and the only reason they didn’t was they found an overriding public interest to try and do something for past discrimination against minority students, of which of course, DeFunis had nothing to do with.

Now, we have no quarrel with any effort that you can on the affirmative program to try and help minorities.

We have no quarrel with that, and we didn’t even know we’re in a minority case when we tried to get Mr. DeFunis into this law school.

Josef Diamond:

We have no quarrel and there are plenty of affirmative action programs that can be undertaken to get more minorities into the law schools, and we are in favor of that.

We’re not suggesting for a moment, that you shouldn’t have it, but we do not think that you can use race to — and to keep out one group solely and only because of race, and that’s what was done here.

If DeFunis had been Black, he would’ve been in.

He was kept out because he was White.

The only reason he was kept out, no other reason.

Warren E. Burger:

Mr. Diamond, you’re now impinging into your rebuttal time.

Josef Diamond:

I better save a little time, thank you.

Warren E. Burger:

Mr. Attorney General.

Slade Gorton:

Mr. Chief Justice and may it please the Court.

I will vary from my opening argument only in connection with one of the questions which obviously bothers this Court as to the status of the case itself and that relates to whether or not it is moot.

We think it is not moot, though such a decision on your part obviously would reinstate the State Supreme Court decision and vindicate our program.

William J. Brennan, Jr.:

No.

Slade Gorton:

Mr. DeFunis will enter —

William J. Brennan, Jr.:

That wouldn’t follow.

Slade Gorton:

It will, at least as far as this group is that — students are concerned subject to some further challenge —

William J. Brennan, Jr.:

But if we find it moot, I expect we’d vacate it and send it back for reconsideration.

Slade Gorton:

If you found it moot on the grounds that he was already graduated, Mr. Justice Brennan, or were about to graduate?

William J. Brennan, Jr.:

Well, what do you and your state do if the case becomes moot as far as final?

Slade Gorton:

I suppose the original action might have dismissed — might have simply been dismissed.

William J. Brennan, Jr.:

Well — [Laughter]

Slade Gorton:

That would validate —

William J. Brennan, Jr.:

We might do that if we found it moot.

Slade Gorton:

It might very well.

That would validate our program.

In any event —

William J. Brennan, Jr.:

Why would it?

Warren E. Burger:

For the past.

Slade Gorton:

For the past.

Warren E. Burger:

Yes.

Slade Gorton:

Until someone else brought another challenge and came back here, probably under the same circumstances which is the principal ground on which we regard the case not as being moot.

Slade Gorton:

As far as Mr. DeFunis is concerned, the time for registration for the final quarter of his law school began on February 20, it ends on March 1, the day after tomorrow.

On Thursday, when we left, he had picked up his application forms.

He may or may not, Mr. Justice Marshall, have filed them.

He certainly will have by Friday.

He would — even if he had been required to ask readmission, he would have been granted that readmission assuming that he was acceptably performing his law school studies, which he is.

He is not law review, Mr. Justice Rehnquist.

He’s roughly in the middle of his class.

Once he has registered on the — no later than the first of March, there will be — he will then complete his law school studies assuming he passes his courses in the last semester.

The only discretion which would then remain in the law school would be if he failed a course in his last semester and requested special permission to come back in the fall to make up for it, in which case of course he’d be in exactly the position as any other student who had failed would be.

William H. Rehnquist:

What if a decision of this Court came down, say, on May 1 affirming the judgment of the Supreme Court of Washington?

What would the Board of Regents do with the petition?

Slade Gorton:

Nothing.

He would — assuming he passes his courses, he would receive his degree and he would take his Bar Examination.

It is not correct to characterize the State Supreme Court’s decision as saying he was illegally in law school.

The State Supreme Court decision said the program of Admissions adopted by the law school was valid, and that he was not deprived of equal protection.

It did not order us to take him out of law school.

Warren E. Burger:

How about the others who had 76.4, would they have an equal protection claim, not having been given a special dispensation here?

Slade Gorton:

I suspect that they have probably rested on their rights too long at this point, Mr. Chief Justice.

The University of Washington Law School has selected its limited number of students from a large pool of clearly qualified candidates.

The considerations employed in the difficult, but necessary choice between applicants have included, among several other factors, that of the race of those applicants.

One goal of that policy has been to improve the quality of the education of all law students by better preparing them to practice law in a pluralistic society.

24 years ago, this Court said the law school, the proving ground for legal learning and practice, cannot be effective in isolation from the individuals and institutions with which the law interacts.

A related goal has been the improvement of the entire legal profession by helping it better to reflect and to understand and to represent all elements in the pluralistic society in which the Bar plays so important of a role.

This system of law school admissions is not unique or isolated to the University of Washington.

With minor variations, it is the system used by a wide range of American law schools, many of whom have joined in briefs in its defense.

William O. Douglas:

Does the State of Washington have a pro rata system for the admission of the minorities to practice law?

Slade Gorton:

It does not, Mr. Justice Douglas, of the —

William O. Douglas:

Is the race disclosed on the examination?

Slade Gorton:

It is not.

The Bar Examination in the State of Washington is entirely anonymous as to every person who takes it and entirely neutral as to race.

Slade Gorton:

I can say, however, that 10 of the 13 members of these 4 minority groups who were in the class of 1973 in law school passed the July 1973 Bar Examination.

So, they were obviously qualified without any regard to race whatsoever, though I suspect their so-called predicted averages were much lower.

Harry A. Blackmun:

Maybe that in and of itself doesn’t prove that.

What is the percentage of the others?

Slade Gorton:

The percentage of all, last year, was extraordinary, Mr. Justice Blackmun.

It was 92%.

So that the percentage of the minority students was slightly lower, but it still was very highly successful.

Harry A. Blackmun:

Well, 3 out of 13 is 20 —

Slade Gorton:

21%, something like that.

Harry A. Blackmun:

Substantially more than 92%.

Slade Gorton:

The difference between 92 and 79.

It still is quite a high success rate.

I mean, of course, you get more than one crack at the Bar Examination there.

William O. Douglas:

Is this policy of the university the outcome of an increasing demand —

Slade Gorton:

A tremendous —

William O. Douglas:

For minority lawyers among the public at large?

Slade Gorton:

It is in the sense that the law school and the university itself has recognized their almost total exclusion from the Bar in the society as a whole and in the State of Washington.

One of the major elements in the record in this case, of course, is Dr. Odegaard’s testimony to exactly that extent.

Actually here, in the name of equal protection, this petitioner asks you to return us to a system of law school student selection which at the University of Washington, which has never engaged in racial discrimination, by force of law, only produced 12 Black graduates out of 3,812 between 1902 and 1969.

Warren E. Burger:

Perhaps that was because they didn’t apply.

Do you have anything in the record on that?

Slade Gorton:

I don’t believe we do, Your Honor.

They applied in very small numbers.

There’s no question about that.

I think it is probable, but I can’t prove that they applied in somewhat larger numbers than they were admitted, because in this particular case, if you followed the guidelines which the petitioner has asked you to follow, we would’ve had an absolutely White law school.

William O. Douglas:

Some of the most common members of your bench in the Seattle-Tacoma area are Black?

Slade Gorton:

There is a Black judge of the Court of Appeals.

There is a Black judge of the Superior Court who was appointed just last month in Seattle.

Those are all in Court’s record.

There are also justice court judges.

Slade Gorton:

Yes, just two in the state.

Warren E. Burger:

Your record, somewhere, indicates I think a Negro population or at least one of the minority group populations of 2.2 or some such figure.

Would you think it would be appropriate for the State of Washington to say that we will admit 2.2% to the law school a particular minority that was — had a 2.2 membership in the total population of the state?

Slade Gorton:

I do not, Mr. Chief Justice Burger, feel that way.

Your statistic is accurate and it is matched in connection with the Chicano population of the state, and I do not for three reasons; first the University of Washington is a national law school.

It is not limited to the State of Washington.

Second, the goal of this policy was an educational goal.

It wished to have a sufficient variety of students in the law school so that their own educational experience which, as you well know, is largely, at least in discussions among students, would be broadened and so that the outlook of the White students as well as of the minority students would be more understanding.

It’s goal was also to see to it that the Bar had that same advantage of representing all the classes and groups in society in the State of Washington and simply to fix some kind of quota-based precisely on state population would meet neither of those goals.

William O. Douglas:

Mr. Attorney General, is this policy limited to the law school by the university?

Slade Gorton:

No, there are similar policies in other schools of the university but I cannot describe them in the detail which I can describe the one as the law school.

William O. Douglas:

An Indian has, under constitutional laws, a reservation of so many seats.

He would be untouchable.

Are you promoting that here?

Slade Gorton:

I am not, Mr. Justice Douglas.

I am promoting here equal opportunity on the basis —

William O. Douglas:

The pro rata system, we’ve had another cases.

Slade Gorton:

Alright, but we are not — we do not operate such a system and we are not asking you to validate such a system.

What we are saying is that the statistical judgments or the statistical scores which are used in connection with law school admissions are not invariable and totally accurate predictors of success nor do they solve the problem of ending the effects of racial discrimination.

In this particular case, we’re dealing with a student who was only marginally qualified when he was compared with all of the people who were admitted into the school.

There were 1,601 applications.

Most of them were qualified people.

330 were eventually given letters or notices of admission.

On predicted first year averages, Mr. DeFunis ranked about 290th in that group of 330.

A number of people above him were denied admission.

A number of people below him were given admission.

Had we picked the top 330 and students simply on the basis of predicted first year average, one minority person would have been among it and he didn’t enter the school, and we would’ve had a Lily White school.

We might have been subject to a challenge on the basis that we were deliberately discriminatory.

We did give notice to these students that other matters except for law school admission test scores and grades were counted in connection with law school.

You have it on page 8 of our brief.

Slade Gorton:

Each student, before he applied, received a notification, three paragraphs of which are quoted on page 8 which says, in the last paragraph, “we gave no preference to, but did not discriminate against either Washington residents or women in making our determination, and applicant’s racial or ethnic background was considered as one factor in our general attempt to convert formal credentials into realistic predictions.

This is precisely what the law school did.

Warren E. Burger:

Does it really make any difference, the basic issues of this case whether he was number one or number 290?

Slade Gorton:

No, it does not, Your Honor.

I think it was a matter of considerable interest here, and I think it may have been somewhat misstated by petitioner, but it does not.

What matters here is whether or not the law school admissions policy was based on appropriate educational judgments on the part of the law school itself.

Obviously, neither Mr. DeFunis nor any other individual had a constitutional right to enter the University of Washington Law School.

That was impossible.

Byron R. White:

Do you think past discrimination, either in Washington or elsewhere, as an educational consideration?

Slade Gorton:

I think that it is, Mr. Justice White, as long as it is relatively narrowly conceived, remember to gain —

Byron R. White:

I understand your education — your argument on educational consideration and otherwise, but I don’t quite understand that.

I’m not saying it isn’t any —

Slade Gorton:

Alright.

Byron R. White:

— qualification, I just wonder why you call it education, why do you think you have to?

Slade Gorton:

Let me answer the question more precisely.

We feel that, in connection with these particular minorities, the fact of discrimination against them in our society over literally hundreds of years has had a very real effect.

It means that fewer of them actually graduate from college by percentage than other groups in our society.

It means those who do frequently have lower grade points, and certainly have shown up with lower law school admissions test scores.

So that if we used only these mathematical determinants of admission for law school, we would continue to exclude them.

We didn’t admit any of them who were not qualified.

I think this is vitally important.

Even on a statistical basis, coupled with other background items not related to race at all, they were qualified and they’ve shown themselves to be qualified.

William H. Rehnquist:

But when you say qualified, Mr. Gorton, really by the time you’ve diluted that phrase as much as you have in your approach to admissions, it doesn’t mean a whole lot, does it, when you consider the minority applicants separately and really don’t have any base — any cutoff point on the predicted first year average?

Slade Gorton:

Neither of those assumptions are correct, Mr. Justice Rehnquist.

They were not considered separately, except on the same kind of preliminary basis that everyone was considered separately.

All of the people, other than those who were of such high intellectual attainments that they received almost immediate admission after their applications came in, were considered by an individual member —

Byron R. White:

These were the only groups that were automatically excluded because they were below 74?

Slade Gorton:

That is not true either, Mr. Justice White.

Byron R. White:

Except for veterans, you’re right.

Slade Gorton:

No, even beyond veterans.

Slade Gorton:

There were — there was the ability on the part of the Dean of Admissions to say that he felt there were factors involved in a particular application of a White non-veteran with a PFYA of below 74.5 which would cause him to be considered by the entire Admissions Committee.

William H. Rehnquist:

But it took the Dean’s intervention to do that with a White person, and it did not —

Slade Gorton:

It did that, Mr. Justice Rehnquist.

William H. Rehnquist:

And that was — so that was a difference in treatment, was it not?

Slade Gorton:

That was clearly a difference in treatment, but it was a difference in treatment which was required by the admissions policy which, of course, was based on the particular educational and professional rules which the university adopted.

However, remember that large numbers of the members of these minority groups were in fact excluded from law school.

There was — they had to have a predicted first year average either alone or coupled with other precise academic qualifications which would indicate that they could successfully complete a law school education.

If, for example, one of them came in with a PFYA of 59 where the lowest passing grade in law school is 68, he would not have been admitted.

Very few were admitted below 68 and, only in those cases where something else indicated that they could actually attain a 68 or better average.

Now, we were faced with a situation, all of society was faced with a situation in connection with particular minorities who’ve been the subject of discrimination in the past which could not be cured by a simple application of a number of statistical formulae.

If we were to continue the old system, we would’ve continued the old method of not having these minority groups represented in law school.

Moreover, this particular program is, in effect, self-liquidating.

As the effects of discrimination lessened or seized, presumably more of these minorities will graduate from college.

They will get better test scores.

They will have better grades and in precisely — to precisely that extent, the preference itself will disappear.

This Court has never, have never declared invalid or even subject to strict judicial scrutiny and — a program which was directed at benefiting minorities who were the subjects of previous racial discrimination.

Thurgood Marshall:

Mr. Attorney General, what do you do with the findings that there were minority people below this man, inferior to him?

I’ve forgotten what the grades were.

Slade Gorton:

What we do with those findings is to admit that, on the statistical basis of predicted first year averages, they were below, but that the law school was not simply looking for the 150 persons with the highest predicted first year averages, that it had other valid social values.

These people who were below Mr. DeFunis in predicted first year averages were, nevertheless, qualified into law school work, and were determined by the Law School Admissions Committee to be ready and able and, as a matter of fact, that they would contribute more, given the nature of the whole class, first to the law school and to the educational experience of every student within it: White, Black, Chicano, the whole works, and that they could contribute more to the Bar which, obviously, is the goal of law school which, of course, is only intermediate itself.

William O. Douglas:

Mr. Attorney General, when I was teaching law many years ago, I discovered to my consternation that these tests, these so-called tests, had built in racial bias.

Is there any finding in this record as to your test?

Slade Gorton:

There is no finding in this record, Mr. Justice Douglas, because neither party wished even to bring that subject up.

Obviously, Mr. DeFunis would not make that claim, and the University of Washington did not attempt in Court to prove that he’d engaged in previous racial discrimination.

I think, however, that you are perfectly capable of looking for example of the single appendix in this case, seeing —

William O. Douglas:

No, but when I was teaching I couldn’t find out how they did it, but it was very subtle built in system to see that certain minorities didn’t get into the school.

Slade Gorton:

Mr. Justice Douglas, I don’t think that there has ever been, at least in this school, any kind of such deliberate attempt.

I think because of the difference, because of the effects of racial discrimination that happens in fact even with what you called in the Griggs case, for example, a test which is neutral on its surface, and you might very well, in a proper case, find that the predicted first year average had a built in racial bias.

But, that is not included in particular findings or particular charges in this case.

What we have done, you see, is to try this — is to say that the Court — this Court has now, for 20 years, said there is a very tremendously high value in an integrated society.

Slade Gorton:

We don’t think this Court says you can only get to an integrated society as a result of orders of this Court, that you can only walk, not run to the nearest exit from discrimination.

We have engaged in a voluntary program, very precise in its outlook.

Racial discrimination was the problem.

Therefore, race had to be the criterion for solving that problem.

We are precisely within Mr. Justice Burger’s holding for this entire Court in Swann v. Charlotte.

“Remedial judicial authority does not put judges in the shoes of school authorities whose powers are plenary.

School authorities are traditionally charged with broad power to formulate and implement educational policy and might well conclude, for example, that in order to prepare students to live in a pluralistic society, each school should have a prescribed ratio of Negro to White students reflecting the proportion of the district as a whole.

To do this as an educational policy is within the broad discretionary powers of school authorities.”

Warren E. Burger:

Is there anything in that context that would keep anyone out of any school however?

Slade Gorton:

There is not, Your Honor, but lots of people are kept out of the University of Washington Law School.

Only if one characterizes Mr. DeFunis’ constitutional entitlement to be to a state financed law school education does that become a relevant question.

In the Swann case, parents who expected in good faith to be able to choose their children’s school by the choice of their residence, teachers who in good faith felt they could choose their assignments were told that they could not because integration, the end of segregation, was a more important social goal.

What Mr. DeFunis was entitled to here was essentially the same thing.

He was entitled to a policy, not a narrow policy which says the highest grades get all the positions, but a policy which took into account valid educational and professional grounds which include the effects of discrimination in the world as a whole, outside of the halls of this law school and under those circumstances —

Warren E. Burger:

Did you personally —

Slade Gorton:

— he was in exactly the same position as the school children in Swann.

Warren E. Burger:

Did the university or the law school conduct any sort of generalized study to determine whether grades had a direct correlation with success and defectiveness in the practice of law?[Laughter]

Slade Gorton:

The university did not do so in connection with this particular program, Mr. Chief Justice, but the amici — many of the briefs of friends of the Court here have indicated that the statistics, both grades in college, for that matter grades in the law school frequently, together with the law school admissions test, do not make such predications.

At the very best, the statistics which Mr. Diamond uses predict your first year average in law school.

They predict nothing about the contribution you will make to the Bar, the contribution you will make to the law school, how much income you’ll make in the Bar, what kind of legal career you will seek.

So, the University of Washington was saying that we have a responsibility to do more than to predict or to pick those students who will get the highest first year law school grades.

We have a duty to pick people who will serve their nation, their society.

We have a duty to see to it that the effects of an exclusionary policy which may have not been required by law will be ended not only in our school, but in our society as a whole.

We were doing, I submit, precisely what you said we have the discretion to do when you wrote the opinion for the entire Court in the Swann case.

Warren E. Burger:

But you haven’t pointed out how that would exclude anyone, as Mr. DeFunis would has been excluded?

Slade Gorton:

It is clear that, at the primary school and secondary school level, no one is excluded, but whether or not that is a greater or a lesser rate than was — than we are concerned with here is really a question — a distinction without a difference.

Everyone goes to school through high school or at least is entitled to.

No one is entitled to a law school education at the expense of the state.

1,300 people were excluded from this class of the University of Washington Law School, some of one race and some of the very races who were the beneficiaries of this special program.

The point is that what the children and their parents and the teachers lost in Swann was every bit as vital a right or every bit as vital a privilege as the privilege which Mr. DeFunis lost here.

Slade Gorton:

He wasn’t entitled to admission.

He was entitled to an appropriate judicial or an appropriate admissions process, but that — he is telling you that process must be limited.

It must be – it must be without any regard to its effects on society as a whole.

He got not only a proper consideration of his application.

He got the best possible consideration to his application and his law school career is much improved now, today because it includes in it, 18 members of these minority groups.

This will help him in his law school career.

It will help him in his practice, but he would have you deny them a position in law school by the use of mechanical criteria not in some theoretical possible model, but in exactly the same system which we’ve always used before and which did, in fact, result in the exclusion of minority students of the law school.

Harry A. Blackmun:

Mr. Attorney General, I think you haven’t told us who has formulated this precise policy?

Is it the Board of Regents of the University?

Slade Gorton:

No, sir.

It is the law school itself.

Our — the statute creating the university and creating the Board of Regents —

Harry A. Blackmun:

When you say the law school itself, you mean the Dean or the Admissions Committee or the Faculty, who?

Slade Gorton:

The Dean – the Dean, the faculty, and the Admissions Committee.

The governing – the governing body of the law school, in effect, the policy setting body of the law school is the entire faculty when they meet together.

Now, they do operate under broad guidelines from the Board of Regents.

Harry A. Blackmun:

Now, how many are on the Admissions Committee?

Slade Gorton:

Mr. Anderson?

Anderson:

Five or Seven.

Slade Gorton:

I think it was — at this particular time, it was five faculty and two students.

Harry A. Blackmun:

Two students?

Slade Gorton:

Yes.

Harry A. Blackmun:

So you do have some who are not members of the faculty, although just now you said it was the faculty that set the policy for the school.

Slade Gorton:

The — I think under those circumstances, in that narrow sense, I would have to say the Admissions Committee didn’t set the policy.

It executed the policy.

Harry A. Blackmun:

And these students, how far along in their law school careers?

Slade Gorton:

Each of these students were first year law students.

Harry A. Blackmun:

So they’re passing on the admission of the next succeeding class.

Slade Gorton:

Of the next succeeding class, that’s right, but they are passing it on only in the sense that they are a minority of the members of the Admissions Committee.

No person was admitted without the approval of the entire committee, though almost every particular application was viewed initially by one or one or two of the members of the committee, and his application is passed on.

Harry A. Blackmun:

So one denial vote on the committee would keep a person out.

Slade Gorton:

No, that is not true.

That is not true, Your Honor.

Harry A. Blackmun:

And no one was admitted without the approval of all members of the committee?

Slade Gorton:

A few people were denied admission without everyone reviewing it.

Most of those persons whose predicted first year averages were below 74.5 and whom the Dean didn’t feel should get some extra kind of consideration.

However, no one was admitted without the entire committee viewing it and often the recommendation of the individual person who first viewed the file was overruled.

The appendix to our brief deals with —

Harry A. Blackmun:

You’re speaking in terms of viewing it.

One can view it and vote negatively.

Slade Gorton:

That’s right.

One can —

Harry A. Blackmun:

What I’m trying to find out is, how is a person denied admission, by vote?

Slade Gorton:

A person was denied admission in one of two fashions; either if his predicted first year average was below 74.5 and he did not fall in one of three categories, he is —

Harry A. Blackmun:

Yes I understand.

Slade Gorton:

Minorities and so on, including some of the late students or, alternatively, by action of the entire committee.

Harry A. Blackmun:

A majority vote?

Slade Gorton:

Majority vote, I believe, yes.

Harry A. Blackmun:

So that the students do vote —

Slade Gorton:

The students —

Harry A. Blackmun:

On their successors in the next class.

Slade Gorton:

— did vote on their successors, all of their successors, White as well as minority.

William H. Rehnquist:

Mr. Gorton, you said the Admissions Committee just executed the policy, it didn’t formulate it.

Who did formulate it, the faculty as a whole?

Slade Gorton:

The faculty of the law school and I’m sure that it went through the Board of Regents and was generally approved by the Board of Regents.

It is — one of the earlier questions asked whether this was general university policy and applied in other schools as well, and the answer to that question is yes.

William J. Brennan, Jr.:

How many other state law schools are there in Washington?

Slade Gorton:

There are none.

There is — there are now, although there weren’t when Mr. DeFunis started, the two private law schools in the State of Washington.

There was one at that time.

William J. Brennan, Jr.:

Rather more expensive than the state?

Slade Gorton:

They are more expensive than the state law school.

William J. Brennan, Jr.:

Then Mr. DeFunis would have to rather have a Hobson’s choice?

Slade Gorton:

Some students would’ve had a Hobson’s choice, Mr. Justice Brennan.

Whether Mr. DeFunis falls into this category, I don’t know and the record doesn’t indicate.

All of the law schools, of course, have scholarship programs, so does the University of Washington.

Harry A. Blackmun:

You made the statement a while ago that the law school was a national school.

Do you charge non-residents more tuition than Washington residents?

Slade Gorton:

We do.

Harry A. Blackmun:

So to that extent, it is something less than a national law school?

Slade Gorton:

Well, to that extent, Michigan is something less than a national law school I suppose, too.

I believe that every state university law school probably has a majority or at least a plurality of its students from its own state, and the University of Washington is certainly that.

It has attempted to be a national law school and it has many students from other states.

Harry A. Blackmun:

Well, certainly, it discourages non-residents from coming, doesn’t it?

Slade Gorton:

It is — it is an element.

With the number of law school applications, however, I think it’s probably a relatively small element to that.

Thank you.

Warren E. Burger:

Mr. Diamond, you have about six minutes remaining.

Josef Diamond:

Thank you.

Counsel has stated that a number of minority students or a number of non-minority students that had grades below 74.5 were accepted.

I call Court’s attention to Schedule A in the single appendix at page 37, and there it lists all of those who were admitted to the class as of August 1, 1971 and you’ll find that not a single non-minority student was accepted with grades anywhere near as low as — that were accepted for the minorities.

They’re all spelled out and there isn’t one.

I also want to call the Court’s attention to the fact that we do not contend that the applicants were accepted on grades alone and, as a matter of fact, the testimony of the witnesses was not that they accepted students with lower grades alone, they accepted lower — students with lower grades and qualifications.

They examined the entire record on all the students, the minorities and the non-minorities, and they accepted those with lower grades.

The same question answers the other one as to who set up this policy.

The question, which is in the record, was asked of the President of the law school, Mr. Odegaard, in connection with the new policy with reference to minorities that you have approved.

Thurgood Marshall:

Is he the President of the law school?

Josef Diamond:

The President of the university, I’m sorry.

Thurgood Marshall:

You mean, the President of the University, don’t you?

Josef Diamond:

Excuse me, president of the law school.[Attempt to Laughter]

Josef Diamond:

If the new policy with reference to minorities — university, I’m sorry, that you have approved and the Regents have approved or adopted, whether that policy permits the law school admissions to admit minority students with lower grades and qualifications and the other students.

And, his answer was “I think it does,” and the same thing with reference to Dean Ronis.

When he was the dean of the law school, he testified to the same thing, and the Court found — the lower Court found and the Supreme Court found that they were allowing students in with lower grades and qualifications.

We’re not just talking about mechanical grades.

The question was asked and counsel made the statement —

Thurgood Marshall:

What are the qualifications you’re talking about?

Josef Diamond:

What was that?

Thurgood Marshall:

What are the qualifications you’re talking about?

Josef Diamond:

The qualifications are what were in their application file, filled out by them.

The recommendations that they furnished their grades, their honors, the courses that they took are listed along with their grades that were submitted, and their work habits.

As was shown there, DeFunis worked.

Thurgood Marshall:

Can the record show that you or the Court or somebody went through all of them and you found it up?

Josef Diamond:

No, sir.

The record shows that that’s all that the Admissions Committee had to look at.

Thurgood Marshall:

Well, how do you know that there was some with lower qualifications?

Josef Diamond:

How do we know what?

Thurgood Marshall:

That there was some minority people with lower qualifications, not lower averages.

Josef Diamond:

Because the university, in their testimony stated so.

The President said so, Dean Ronis said so, the Chairman, Mr. — Professor Kumer said so that they were accepted.

Thurgood Marshall:

Without qualifications?

Josef Diamond:

Yes, without qualifications, they testified that students with lower qualifications and without lower grades were accepted.

They did, and they said that they were reaching out to get more.

Thurgood Marshall:

Do I understand that what they meant for qualifications were just what you said?

Josef Diamond:

They had nothing else to go on.

There couldn’t be anything else.

All they had was the same thing that they had with reference to Mr. DeFunis.

One other thing —

Potter Stewart:

Well, as I understand it, the phrase was in the interrogator’s question and the answer was yes.

Josef Diamond:

In some case, and that one I read, but the others it was not.

It was — in Dean Futeus it was not — in Dean Ronis it was not.

Josef Diamond:

He testified to it himself.

The other question that was asked —

Byron R. White:

In terms of the university — in terms of the law school’s policy, these people were fully qualified.

Josef Diamond:

Well, that’s a relative matter.

The university testified that they were qualified for the law school, but it’s a relative matter.

They set up these two classes.

If they took those that had better qualifications as they admitted, they wouldn’t have had room for these.

So, they had to set up a ratio between them.

If they did say and they did testify that any of the 1,600 they thought could have maintained themselves in school, and would’ve passed.

But, you’ve got a relative situation.

You can’t take 1,600.

So, they were — should be taking, we would assume, the better qualified, not necessarily the better grades.

Byron R. White:

Yes, but perhaps by old standards the — perhaps by the standards that part of the people were judged by, these people were qualified, but in terms of the overall policy, admissions policy of the school, the school district people were distracted by their purposes.

Josef Diamond:

I think if you look at the record and you look at the findings of the Courts, you’ll find that they did not.

Byron R. White:

But in terms of their goals, in terms of their —

Josef Diamond:

The university’s goals?

Byron R. White:

In terms of the law school’s goals and their policies, they challenge the people who would —

Josef Diamond:

Let me —

Byron R. White:

— satisfy those policies.

Josef Diamond:

Let me answer that with this —

Byron R. White:

The question really is whether the law school may have these priorities as preferences.

Josef Diamond:

I think if they use the same test for everyone, they would have that right, but let me answer you that with this notation —

Thurgood Marshall:

The same test, what test?

Aren’t you rearing back on the test?

Isn’t the test the qualifications to use —

Josef Diamond:

Whatever they use, when you have 1,600 people making application, and you only have room for 150, you’re going to have to make some determination of which are the best qualified.

Now, the only thing we’ve got here is the President of the University, the Dean of the law school, the Chairman of the Admissions Committee telling us that they did not select the best qualified students.

I can’t give you any more than that.

Thurgood Marshall:

I submit that’s not all you had.

You had all the discovery —

Josef Diamond:

Let me —

Thurgood Marshall:

You had all the discovery you could use, if you wanted to use it.

Josef Diamond:

We got enough.

Thurgood Marshall:

Well, I want to show exactly what any of these — what this has meant for the worst qualifications —

Josef Diamond:

Well —

Thurgood Marshall:

In the record.

Josef Diamond:

Let me cover this one for just a moment.

On January 9, 1974 —

Thurgood Marshall:

For the two?

Josef Diamond:

What was that?

Thurgood Marshall:

There were two.

Josef Diamond:

Yes, I owned there for two.

On January 9, 1974, I requested and received a letter from the Attorney General with reference to the 19 specially admitted students, and this is what they tell me.

“Of the 19 specially admitted in the class commencing September 1971, 10 of whom are Black, 3 Chicano, 3 Asian-American, 3 Native-American, 15 are currently enrolled in the law school, 7 of whom are Black, 3 Chicano, 3 Asian-Americans, and 2 Native-Americans.

Now, out of the 19 then we have 15 remaining today in the law school.

If my mathematics are correct, there’s 22% that are no longer in the law school.

I don’t know why they’re not there, but they’re not there, and counsel would have you believe that they were maintaining their percentage.

This does not establish that, and I submit it does not.

Now, may I answer you question of — I don’t remember exactly what it was, Justice.[Laughter]

What was that?

Thurgood Marshall:

You have my permission to forget it.

Josef Diamond:

Thank you.

Lewis F. Powell, Jr.:

May I ask you a question?

Josef Diamond:

Yes.

Lewis F. Powell, Jr.:

You don’t want to repeat it?

Thurgood Marshall:

No.

Josef Diamond:

You may, Justice.

Lewis F. Powell, Jr.:

The guide for applicants that you have referred to does not suggest that race is a controlling criteria.

It suggests a number of factors in addition to the college scores and accumulative grade scores.

It refers to extra curricula and community activities, to employment records, to general background, and then states that one factor in our general attempt to convert formal credentials into realistic predictions is racial or ethnic background.

Lewis F. Powell, Jr.:

Is it your position that only the formal scores may be considered or do you agree that admissions committees have broad discretion and may consider these factors that are in this policy guide?

Josef Diamond:

Yes, I think they can.

They apply them to everyone on the same basis.

Lewis F. Powell, Jr.:

Is it your position that if the guide had been followed, you wouldn’t be here today?

Josef Diamond:

There is no question about that.

Lewis F. Powell, Jr.:

In other words, you’re claiming that the guide, promulgated by authorities, would not in fact apply.

Josef Diamond:

That is correct.

It does not.

Harry A. Blackmun:

Mr. Diamond.

Josef Diamond:

Yes, sir?

Harry A. Blackmun:

The Chief Justice will permit me with the red light on.

Let me get away from this racial aspect a little bit.

Let’s speak of our sister profession of medicine, in which I have a little familiarity in the past.

There’s been a great deal of talk about the need for general practitioners and the need for newly trained physicians to get out into small communities.

Suppose in the University of Washington law — Medical School, there were some applicants who said “I would like to go into the mountains or into the dessert or wherever it is, [Laughter] and I’m not desire as to specialize in orthopedics or neurosurgery.

I just want to be a general practitioner.”

And yet, his qualification is undergraduate work and grade-wise was less than a number of others who wanted to specialize.

Do you think this factor, whether it’s valid or not as a matter of medical concern, but today it is assumed to be I think, do you think this factor of the need for general practitioners and the desire for general practitioners would be something that the Admissions Committee of the Medical School could validly take into consideration?

Josef Diamond:

Not at that level.

I think an affirmative action program, and I think that’s what you’re talking about, I think is good, valid, and I’m all for it whether it’s for law students or whether it’s for medical.

And, I think it should be based not on race.

It should be based on the disadvantage, the under-privilege, the under-cultured, those that need help, the poor, and I think what you should do is go out and recruit them, give them some special training, some special service, set up a special category, make lawyers and make doctors out of the people that want to do the things that you want to do, but not on the basis of race, not on the basis of anything except the under-privileged.

Harry A. Blackmun:

My question was an attempt to get away from race.

It was an attempt to focus on the need of the community, not on the qualifications, particularly of the applicant.

I take it you feel that they could not take this into consideration.

Josef Diamond:

I’m not ready to subscribe to the theory that minority clans are looking for minority lawyers or doctors.

I think they are looking for the best qualified doctors and lawyers to look after their needs, and I submit that they better look for the best qualified and not one that matches their own skin or color.

Warren E. Burger:

Thank you, Gentlemen.

The case is submitted.