equal protection and benign racial classification: a

736 THE AMERICAN UNIVERSITY LAW REVIEW

nance of man. . . which proves the absolute right to an educationof every human being that comes into the world, and which ofcourse, proves the correlative duty of every government to see thatthe means of that education are provided for all."9

Equal education has to be given concreteness and specificity as educa-tional policy. Thus, where educational policy concludes that equal edu-cation requires certain specific practices, the courts should make thosepractices a part of the constitutional dimensions of the equal educationguarantee. The courts must ask the question: "what are the essentialingredients needed for equality of educational opportunity?" When thisquestion is answered, the mandate of the equal protection clause will beclear.

ROBERT E. GODWIN

Equal Protection and Benign Racial Classification: AChallenge to the Law Schools

In recent years remedial measures based on racial classifications havebeen initiated by the federal government and state governments andtheir agents to eliminate the effects of racial discrimination in areas suchas schooling' and employment practices.2 These "corrective" measureshave been upheld by the courts,3 and, indeed, the courts themselveshave initiated such measures.4

129. H. MANN, READINGS IN AMERICAN EDUCATION 336 (Lucio ed. 1963) (emphasisin original). There can be little doubt that Mann envisioned the absolute right to an

equal education. See note 2 supra.

1. See ILL. REv. STAT., ch. 122, § 10213 (1972); MASS. ANN. LAWS, ch. 71, § 37(c);ch. 15, § 1 (I), (J), (K); text accompanying notes 69-79 infra.

2. See, e.g.,the "Philadelphia Plan," issued under the authority of Exec. Order No.11246, 3 C.F.R. 339 (1965), under which federal contracts and federally assisted con-struction contracts were required to "set specific goals of minority manpower utiliza-tion."

3. See text accompanying notes 69-79 infra; Contractors Ass'n of Eastern Pa. v.Secretary of Labor, 311 F. Supp. 1002 (E.D. Pa. 1970), affd, 442 F.2d 159 (3d Cir,1971).

4. See Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 16 (1971)(United States Court of Appeals for the Fourth Circuit instituted an affirmative planinvolving busing of students to desegregate the Charlotte-Mecklenburg school system);Bradley v. Richmond School Bd., 338 F. Supp. 67 (1971) (United States Court of

[Vol. 21

BENIGN CLASSIFICATION

Representative of such actions is the University of Washington LawSchool's admission policy designed to increase minority representationin its entering first year class. To ensure greater minority representationthe Law School's Admissions Committee employed a different admis-sions procedure for minority applicants.5 This different procedure con-sisted of 1) full committee consideration, rather than singular considera-tion by the Chairman of the Committee, where an applicant's PredictedFirst Year Average (P FY A-consisting of junior/senior undergraduategrade point average and Law School Admission Test score) fell belowa certain level; and 2) instead of random assignment of applicant filesto Committee members, minority applicant files were assigned to thoseAdmissions Committee members best suited by reasons of backgroundand experience to give appropriate recommendations. 6 This procedureresulted in the acceptance of 44 minority students into the class of 1974,J36 of whom were arguably less qualified than several unsuccessful Cau-casion applicants.' Alleging that this procedure constituted a denial ofthe equal protection clause of the fourteenth amendment,9 the plaintiffin DeFunis v. Odegaard,10 an unsuccessful white applicant," filed suit

Appeals for the Fourth Circuit ordered consolidation of a Black school district withtwo surrounding White school districts): Bradley v. Milliken, 40 U.S.L.W. 2841 (U.S.June 27, 1972) (United States Court of Appeals for the Sixth Circuit ordered a desegre-gation plan for the Detroit metropolitan area); Hobson v. Hanson, 269 F. Supp. 401(1967). a/i'd sub non., Smuck v. Hobson, 408 F.2d 175 (1969) (United States Court ofAppeals for the District of Columbia Circuit ordered a long-range plan of pupil assign-ment and faculty integration).

5. Included within the category of minority applicants were Blacks, Chicanos, Ameri-can Indians, and Filipinos. Brief for Appellant at 8, Defunis v. Odegaard, No. 741727(Wash Super. Ct. King County, Sept. 22, 1971).

6. Id at 8, 32.7 Id at 6.8. On the sole basis of PFYA the 36 minority students were less qualified. However,

as will be demonstrated, recognizing all the factors an admissions committee must takeinto consideration in developing admissions criteria, the minority students may not havebeen less qualified, and from the standpoint of the law school, were more qualified. Id.at 36.

9. "No state shall ... deny to any person within its jurisdiction the equal protectionof the law."

10, Defunis v. Odegaard, No. 741727 (Wash. Super. Ct. Kings County, Sept. 22,1971).

1I. The question of standing, although not discussed in Defunis, must be considered.It may "ell be that Defunis lacked standing, for even if all 36 minority applicants hadbeen rejected and White students admitted in their place, he would not have beenaccepted. Defunis had been placed in the fourth quartile of the law school's waiting list,

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in the Superior Court of the State of Washington for King County.In upholding the petitioner's claim the trial court in DeFunis relied

upon Brown v. Board of Education.2 Interpreting Brown to hold thatany racial classification is invalid per se, the trial judge, in suspectreasoning,3 stated:

After that decision, the fourteenth amendment could no longer bestretched to accommodate the needs of any race. Policies of dis-crimination will inevitably lead to reprisals. The only safe rule isto treat all races alike and I feel that is what is required under theequal protection clause. 4

The ramifications of this reasoning when applied to efforts by a stateto ameliorate a past racially discriminatory practice are obvious-thestate's efforts would have to be halted. In light of this serious conse-quence further inquiry into the constitutional framework for the trialcourt decision in DeFunis as well as an examination of an alternativebasis of review of the case is crucial.

The fourteenth amendment provides that "No state shall . . . denyto any person the equal protection of the laws." However, logic dictatesthat laws cannot affect all classes of people equally. 5 If legislation is"to act at all it must necessarily impose special burdens upon or grantspecial benefits to special groups or classes of persons."' Therefore,

the first three quartiles comprising 120 applicants. Since those on waiting lists acceptadmission offers at a higher rate than applicants generally, Defunis would not have beenoffered admittance in any case. Brief for Appellant, supra note 5, at 13-14. Defunissuffered no direct injury because of the admission of the minority applicants and there-fore lacked standing to sue. Id. at 25. See Barrows v. Jackson, 346 U.S. 249 (1953),where the Court stated that ". . . a person cannot challenge the constitutionality of astatute unless he shows that he himself is injured by its operation." Accord, Tileston v.Ullman, 318 U.S. 44 (1943); Tyler v. The Judges, 179 U.S. 495, 410 (1900); McCabev. Atchison, Topeka, & Santa Fe R.R. Co., 235 U.S. 151, 162-164 (1914); Laird v.Tatum, 40 U.S.L.W. 4850 (U.S. June 26, 1972).

12. 347 U.S. 483 (1954).13. See text accompanying notes 34-39 infra.14. Defunis v. Odegaard, No. 741727, Oral Decision 2-3 (Wash. Super. Ct. King

County, Sept. 22, 1971).15. See Tussman & ten Broek, The Equal Protection of the Laws, 37 CALIF. L. REv.

341, 344-45 (1949) [hereinafter cited as Tussman & tenBroek]; Developments in theLaw-Equal Protection, 82 HARv. L. REV. 1067, 1076 (1968) [hereinafter cited asDevelopments].

16. Tussman & tenBroek at 344; accord, Atchison, Topeka, & Santa Fe R.R. Co.v. Matthews, 174 U.S. 96 (1899):

It is the essence of classification that upon the class are cast certain duties and

[Vol. 21


where a classificatory scheme is alleged to be violative of the fourteenthamendment the initial inquiry focuses on the criteria to be employed inevaluating the constitutional propriety of the scheme.

Courts have traditionally employed two criteria or standards of re-view. In cases concerned primarily with business or economic regula-tions, courts apply a restrained equal protection standard17 involving atwo pronged test. The first inquiry is whether the classification em-ployed has a permissible purpose. 1" This is almost always answeredaffirmatively, 9 for the courts consider any reasonably conceived stateof facts existing at the time the classification is employed as justifyingthe classification.2 0 The second inquiry is whether the classificatoryscheme has a fair and reasonable relation to the purposes of the statute

burdens different from that resting on the general public . . . . The very idea ofclassification is that of inequality, so that it goes without saying that the fact ofinequality in no matter determines the matter of constitutionality.

Id it 106, Barbier v. Connolly. 113 U.S. 27 (1885); Lindsley v. Natural Carbonic GasCo . 220 U.S. 61 (1911); Railway Express Agency v. New York, 336 U.S. 106 (1949);McDonald v. Board of Election Comm'rs, 394 U.S. 802 (1969).

17. James v. Valtierra, 404 U.S. 811 (1971); United States v. Maryland Saving-ShareIns. Corp., 400 U.S. 4 (1970); McDonald v. Board of Elections, 394 U.S. 802 (1969);Dandridge v, Williams, 397 U.S. 471 (1970); McGowan v. Maryland, 366 U.S. 420(1961); Williamson v. Lee Optical Co., 348 U.S. 483 (1955); Railway Express Agencyv. New York, 336 U.S. 379 (1937); Goesaert v. Cleary, 335 U.S. 464 (1948); Kotch v.Board of River Port Pilot Comm'rs, 330 U.S. 552 (1947); West Coast Hotel Co. v.Parrish, 300 U.S. 379 (1937); F.S. Royster Guano Co. v. Virginia, 253 U.S. 412 (1920);see Tussman & tenBroek at 363-66; Developments at 1088-91.

18, It is suggested in Developments, that "the requirement of permissibility seemslittle more than a caveat intended to make the formula logically secure against theassertion that 'this classification is valid because it is rationally related to the purposeof promoting inequality.' " Id. at 1081.

19. Since Morey v. Doud, 354 U.S. 457 (1957), no business or economic regulationhas been found violative of the equal protection clause under the traditional standardof review. However, in two recent cases not concerned with business or economicregulations, the Court has struck down state statutes under this standard of review. Reed

Reed, 404 U.S. 71 (1971); Eisenstadt v. Baird, 40 U.S.L.W. 4303 (U.S. March 21,1972), This may indicate that meeting this standard will no longer be a perfunctoryexercise.

20. See McGowan v. Maryland, 366 U.S. 420 (1961), where the Court stated: "Astatutory discrimination will not be set aside if any state of facts reasonably may beconceived to justify it." Id. at 425-26; accord, United States v. Caroline Products Co.,304 U.S. 144, 154 (1938); Williamson v. Lee Optical Co., 348 U.S. 483 (1955); Goesaertv Cleary, 335 U.S. 464 (1948); Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61(1911).

19721


so that all those subject to it are treated equally.2' Even though theclassification scheme may actually be over 22 or under-inclusive,2 aslong as any rational relation between the classification and the permissi-ble state purpose can be found, the classification will be upheld. 24

Where a classification is based on "suspect" criteria 5 or affects afundamental interest,2 a different standard of review is invoked. Here

21. In McLaughlin v. Florida, 379 U.S. 184 (1964), the Court stated: "The Courtsmust reach and determine the question whether the classifications drawn in a statuteare reasonable in light of its purpose . I. " ld. at 191; see Atchison, Topeka, & SantaFe R.R. v. Matthews, 174 U.S. 96, 104-05 (1899); Southern Ry. v. Greene, 216 U.S.400, 417 (1909). See generally Developments at 1082-87.

22. Overinclusiveness results where individuals not in the same position with respectto the purpose of the law are benefited or burdened by defining a class encompassingmore than those persons similarly situated. Thus, in Korematsu v. United States, 323U.S. 214 (1944), while a military order placed all Japanese-Americans in concentrationcamps to reduce the danger of subversion and sabotage, certainly only a small percen-tage of those so placed were subversives. See generally Tussman & tenBroek at 347-48;Developments at 1086.

23. Underinclusiveness results where individuals in the same position with respect tothe purpose of the law are not benefited or burdened by defining a class encompassingless than those persons similarly situated. Thus, in Goesaert v. Cleary, 335 U.S. 464(1948), the Court upheld a Michigan statute which barred all women from receivingbartending licenses except wives and daughters of male bar owners. See Williamson v.Lee Optical Co., 348 U.S. 483 (1955); West Coast Hotel Co. v. Parrish, 300 U.S. 483(1937). See generally Tussman & tenBroek at 347-38; Developments at 1084-1086.

24. See Goesaert v. Cleary, 335 U.S. 464 (1948); Williamson v. Lee Optical Co., 348U.S. 483 (1955).

25. Among the classifications suggested at various times as "suspect" are race (Boil-ing v. Sharpe, 347 U.S. 497 (1954); McLaughlin v. Florida, 370 U.S. 184 (1964); Loving

v. Virginia, 388 U.S. 1 (1967); alienage and nationality (Graham v. Richardson, 403U.S. 365 (1971); Takahashi v. Fish & Game Comm'r, 334 U.S. 410 (1948); Korematsuv. United States, 323 U.S. 214 (1944); Hirabayashi v. United States, 320 U.S. 81(1943)); status of illegitimate children (Levy v. Louisiana, 391 U.S. 68 (1968); Weberv. Aetna Casualty & Surety Co., 40 U.S.L.W. 4460 (U.S. April 24, 1972). But seeLabine v. Vincent, 401 U.S. 532 (1971)); political allegiance (Williams v. Rhodes, 401U.S. 532 (1968)); residence (Shapiro v. Thompson, 394 U.S. 618 (1969)); and wealth(Bullock v. Carter, 405 U.S. 134 (1972); Harper v. Virginia Bd. of Elections, 383 U.S.663 (1966)). See generally Dienes, The Progeny of Comstoekeryv-Birth Control LawsReturn to Court, 21 Am. U.L. REV. 1, 101-02 (1971).

26. Interests which have been singled out as fundamental include travel (Shapiro v.Thompson, 394 U.S. 618 (1969); United States v. Guest, 383 U.S. 745 (1966)); voting(Dunn v. Blumstein, 40 U.S.L.W. 4269 (U.S. March 21, 1972); Bullock v. Carter, 405U.S. 134 (1972); Evans v. Corman, 398 U.S. 419 (1970); Cipriano v. Houma, 395 U.S.701 (1969); Kramer v. Union Free School Dist., 395 U.S. 621 (1969); Harper v. VirginiaBd. of Elections, 383 U.S. 663 (1966); Reynolds v. Sims, 377 U.S. 533 (1964)); procrea-

[Vol. 21


the courts subject the classification "to the most rigid scrutiny, ' 27 re-quiring a showing of a compelling state interest in order to justify theclassification..2 1 The state has a "heavy burden of justification ' 29 toprove not only that the statute's or practice's purpose cannot beachieved by an act or criteria of a non-suspect nature or by infringingon a fundamental right, but also that the import of the public interestin the particular enactment or practice outweighs, in the balance, theburden placed on those who are either subject to the classification orwhose rights are burdened.'"

It is instructive to note that racial classifications are not deemedinvalid per se as the Court suggested in Strauder v. West Virginia'3 1

but rather are considered as being merely "suspect. 32 Despite language

lion (Skinner v. Oklahoma, 315 U.S. 535 (1942)); association (Williams v. Rhodes, 393t1 S. 23 (1968)): rights with respect to criminal procedure (Mayer v. City of Chicago,404 U.S. 1X9 (1971); Douglas v. California, 372 U.S. 353 (1963); Griffen v. Illinois, 351t .S. 12 (1956)); and education (Serrano v. Priest, 5 Cal.3d 584, 487 P.2d 1241, 96 Cal.l)usartz v. Hatfield, 334 F. Supp. 870 (D. Minn. 1971)). See generally, Developments(Serrano v. Priest, 5 Cal.3d 584, 487 P.2d 1241, 96 Cal. Rptr. 601 (1971) or to voteDlusart/ v. Hatfield, 334 F. Supp. 870 (D. Minn. 1971)); See generally, Developmentsat 1127-28. There is, however, uncertainty as to whether all the classifications andinterest,, listed are by themselves suspect or fundamental. A combination approach,% hereb a classificatory scheme conditions the exercise of a fundamental interest on thehasis of suspect criteria, may be required in certain situations. Thus, a wealth classifica-Iion has never alone triggered a strict scrutiny approach, but when the right to education(Serrano v. Priest. 5 Cal 3rd 584. 487 P.2d 1241, 96 Cal. Rptr. 601 (1971)) or to vote(Harper v. Virginia Bd. of Elections. 383 U.S. 663 (1966)) or the right to certain aspectsot criminal procedure (Griffen v. Illinois. 351 U.S. 12 (1956)) is conditioned on thebasis of wealth, then the state must show a compelling interest.

27. Korematsu v. United States, 323 U.S. 214, 216 (1944).25. In Loving v. Virginia, 388 U.S. 1 (1967), the Court held that the state must show

an "overriding purpose necessary to the accomplishment of some permissible stateohjective. Id. at 1I. Accord, Kramer v. Union Free School Dist., 395 U.S. 621 (1969);Shapiro v. Thompson, 394 U.S. 618 (1969); Hunter v. Erickson, 393 U.S. 385 (1969);Williams v. Rhodes, 393 U.S. 23 (1968): N.A.A.C.P. v. Button, 371 U.S. 415 (1963);McLaughlin v. Florida, 379 U.S. 184 (1964).

20. Loving v. Virginia, 388 U.S. 1, 9 (1967).30. This burden was met in Korematsu v. United States, 323 U.S. 214 (1944), where

the state's compelling interest to prevent subversion and sabotage during wartime justi-fied placing Japanese-Americans residing on the west coast in concentration camps. Seegenerally Developments at 1130.

31. 100 U.S. 303 (1880). In Strauder the Court stated: "What is this but declaringthat the law in the States shall be the same for black as for white; that all persons,skhether colored or white, shall stand equal before the laws of the States. . . . Id. at307.

32 Boiling v. Sharpe, 347 U.S. 497, 499 (1954).

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in a number of cases to the effect that the Constitution prohibits classifi-cations based on race from ever being invoked,33 resort to the label"suspect" alone would suggest that the Court does not deem all racialclassifications invalid.34 Thus, the trial judge's assertion in De Funisthat "the fourteenth amendment could no longer be stretched to accom-modate the needs of any race" 35 appears to be erroneous.

The language of Brown v. Board of Education" is not necessarilyinconsistent with this result. The adjudicative backdrop of Brown wasnot Strauder,37 but rather Plessy v. Ferguson," wherein the SupremeCourt had held that "separate but equal" in public accommodations waspermissible. Plessy, having succeeded Strauder, appears to have over-ruled it, if not explicitly, at least implicitly.39 Furthermore, if the Court

33. Plessy v. Ferguson, 163 U.S. 537 (1896) (Harlan, J., dissenting). "Our constitu-tion is color-blind, and neither knows nor tolerates classes among citizens." Id. at 559.Accord, Strauder v. West Virginia, 100 U.S. 303, 307 (1880); Nixon v. Herndon, 273U.S. 536, 541 (1927); Edwards v. California, 314 U.S. 160, 184-85 (1941) (Jackson, J.,concurring); Kotch v. Board of River Port Pilot Comm'rs, 330 U.S. 552, 556 (1947)(Rutledge, J., dissenting); McLaughlin v. Florida, 379 U.S. 184, 198 (1964) (Stewart,J., concurring); Loving v. Virginia, 388 U.S. 1, 13 (1967) (Stewart, J., concurring). Seegenerally A. BLAUSTEIN & C. FERGUSON, DESEGREGATION AND THE LAW (1957).

34. What purpose would rigid scrutiny of a suspect classification serve unless classifi-cations could at times pass constitutional review; see Gagan, De Jure Integration InEducation, I I CATHOLIC LAW. 4, 12 (1965).

The Courts discussion in other cases further supports this contention. See, e.g.,McLaughlin v. Florida, 379 U.S. 184 (1964), where the Court suggested that racialclassifications might be permitted if "there clearly appears in the relevant material someoverriding statutory purpose" justifying treatment on a racial basis. Id. at 192; Hunterv. Erickson, 393 U.S. 385 (1969); Loving V. Virginia, 388 U.S. 1 (1967). See also W.DOUGLAS, WE THE JUDGES 398-99 (1956), where Justice Douglas suggests that racialclassifications are, at times, permissible; Vierra, Racial Imbalance, Black Separatism,and Permissible Classification By Race, 67 MICH. L. REV. 1553 (1969), where theauthor states:

The decisions of the Supreme Court do not establish a rigid principle of constitu-tional color-blindness. Rather, the opinions although not yielding a clear neutralprinciple suggest that in appropriate circumstances-usually described in termsof 'justification'-the state and national governments may classify by race.

Id. at 1605-06.35. DeFunis v. Odegaard, No. 741727, Oral Decision 2 (Wash. Super. Ct. King

County, Sept. 22, 1971).36. 347 U.S. 483 (1954).37. 100 U.S. 303 (1880).38. 163 U.S. 537 (1896).39. The outright prohibition in Strauder against racial classifications could no longer

be constitutionally authoritative after Plessy since the concept of separate-but-equalnecessarily entails racial classifications.

[Vol. 21


had intended to revive Strauder and activate other absolute prohibitionsagainst the use of racial classifications,"' one must question why it wentto such lengths in detailing the psychologically deleterious effect of even"separate but equal" segregated public school facilities on Blacks.', Anargument can in fact be made that Brown dealt with the problem ofunequal education due to segregation, rather than with the unlawfulnessof racial classifications per se.'2 The Brown Court stressed the import-ance of the fact that the discrimination was in the arena of publiceducation, thus leaving open to speculation whether Plessy was stillvalid in other areas."3 If racial discrimination alone was enough towarrant invalidating a segregated school system, then the Court's dis-cussion in Brown of the importance of public education44 would havebeen merely surplusage.

The Brown opinion said nothing about barring affirmative action toremedy past unlawful discrimination. Moreover, it is questionablewhether one should apply the language of Brown-designed to attack asystem of school segregation-to bar an affirmative plan designed toremedy discrimination. As the appellants in DeFunis pointed out, thisprecludes the achievement of the very goals Brown attempted to in-sure.

1"

The question that should be asked is not whether a racial classifica-tion is invalid per se, as the trial judge so held in DeFunis, but ratherwhat standard should be invoked to assess the constitutionality of an

40 See cases cited in note 33 supra.41. See generally Developments at 1089.42 Fiss, Racial Imbalance in the Public Schools: The Constitutional Concepts, 78

H&ARx L. Ruv. 564, 588-595 (1965).43 Cm mpare Kauper, Segregation in Public Education, 52 MICH. L. REv. 1137

(1954),The Court's opinion . . placed emphasis upon the intangible factors that makethe Plesi doctrine inapplicable to the public schools. Education is an experienceand not merely an enjoyment of public facilities. But with respect to commoncarrier and public recreational facilities, the emphasis is upon the enjoyment ofthe physical facilities and services so that it is more nearly possible to speak ofequality of enjoyment within the pattern of segregation.

Id at 1154with McKay. Segregation and Public Recreation, 40 VA. L. REv. 697 (1954):

Ilhere appears to be no reason to believe that the sense of inferiority engenderedby segregation in recreation is any less than in education, although its manifesta-tions will of course be different.

Id at 724.44. Brown %v. Board of Educ., 347 U.S. 483, 493-495 (1954).45. Brief for Appellant, supra note 5, at 17.

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affirmative state program designed to remedy discrimination. At thevery least, an affirmative action plan employed to offset past discrimi-natory practice, whether de facto or de jure, should be evaluated underthe stricter equal protection theory." However, even taking into consid-eration the arguments why the strict scrutiny approach should be em-ployed, it is asserted that the reasonableness test47 is the correct ap-proach to use when judging a benign racial classification.

There are a number of reasons why a strict scrutiny as opposed to areasonableness test should be applied even where a racial classificationis benign. A fundamental objection to a benign or special treatmentprogram is that it offends basic concepts of individualism." It has beensuggested that the equal protection clause confers equality upon individ-uals rather than groups.49 This concept of individualism implies thatwhen judging equality of treatment, the focus of review should be uponindividuals not races, for race is supposedly irrelevant to a compellingpublic purpose.5 Thus, while it would be consistent with this concept ofindividualism to review an individual minority student's application ondifferent standards, it would be inconsistent to implement such a proce-dure for all minority applicants across the board. Additionally, a benignclassification may also have the effect of perpetuating the premise ofinequality between races in that the use of racial preferences may rein-

46. See text accompanying notes 25-36.47. See text accompanying notes 17-24.48. See Fiss, supra note 42; Kaplan, Equal Justice in an Unequal World: Equality

for the Negro-The Problem of Special Treatment, 61 Nw. U.L. REv. 363 (1960);Developments at 1111.

49. See Shelly v. Kraemer, 334 U.S. 1 (1948), where the Court stated:The rights created by the first section of the Fourteenth Amendment are, by itsterms, guaranteed to the individual. The rights established are personal rights. Itis, therefore, no answer to these petitioners to say that the courts may also beinduced to deny white persons rights of ownership and occupance on grounds ofrace or color. Equal protection of the law is not achieved through indiscriminateimposition in inequalities.

Id. at 22.50. See Developments at I 112. However, because of past discrimination one's race

may be a proper guide for his needs. (See United States v. Jefferson County Bd. ofEduc., 372 F.2d 836, 891-92, affd en banc, 380 F.2d 385 (5th Cir. 1966), cert. denied,389 U.S. 40 (1967)). For example, if most Black children in a school district havereceived an inferior education due to exclusion from White schools, a measure thatrequires the school board to provide remedial classes for all Black children would seemto provide a fairly reliable means of overcoming hardships imposed by previous discrim-ination.

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force pre-existing racial prejudices.5 Certainly the use of benign classifi-cations is counter-productive to the goal of eliminating a "color-blind"judgment of individuals." Furthermore, it has been argued that to allowthe government to introduce racial classifications is directly contrary tothe assertions of the plaintiffs attorneys in Brown that the Constitutionbars differential treatment on the basis of race.53 Racial classificationsare deemed to be dangerous for it is difficult to ascertain whether aclassification is truly benign:54 and even if it was benign at one time, theclassification "tomorrow . . . might well prove a precedent for a muchless happy result." 55

If a compelling state interest in employing a particular classificationcould be illustrated, the affirmative action, though based on a racialclassification, would have to be upheld.5" However, to apply the stan-dard of strict scrutiny is to ignore the distinction between affirmativeaction designed to offset past discriminatory practice and actions de-signed to implement and maintain discriminatory practices. While mostcourts have held that a state or its instrumentality does not have anaffirmative duty to eliminate de facto segregation, local schools that

51. Kaplan, supra note 48, at 379-80.52. However, there are arguments to the contrary. A member of a minority group

cannot stand on equal terms with another unless he or she has had the same opportuni-ties to advance in society as others have had. To achieve equal status racial preferencemay have to be stressed until equality results. Moreover, members of the majority canboth better understand the discrimination of the past and present and the positive desireof their government to achieve equality when benevolent racial classifications are af-firmatively employed. In the end, if the measures succeed in aiding minorities to obtainequal opportunities within all of society the use of racial classifications may be worththe cost. See Developments at 1113.

53. See Kaplan, Segregation Litigation And The Schools-Part I1 The GeneralNorthern Problem, 58 Nw. U.L. REv. 157, 188 (1963).

54. Id,55. Id.56. See notes 32, 34 supra.57. See Keys v. School Dist. No. 1. 445 F.2d 990 (10th Cir. 1971), cert. granted,

404 U.S. 1036 (1972); United States v. Board of Educ. of Tulsa County, 429 F.2d 1253(10th Cir. 1970); Deal v. Cincinnati Bd. of Educ., 369 F.2d 55 (5th Cir. 1966), cert.denied, 389 U.S. 847 (1967); Springfield School Comm. v. Barksdale, 348 F.2d 261 (1stCir. 1965): Downs v. Board of Educ. of Kansas City, 336 F.2d 988 (10th Cir. 1964),cert denied, 380 U.S. 914 (1965); Craggett v. Board of Educ. of Cleveland, 234 F. Supp.381 (N.D. Ohio 1964): Bell v. School Bd. of Gary, Indiana, 324 F.2d 209 (7th Cir.1963), cert. denied, 377 U.S. 924 (1964); Sealy v. Department of Public Instruction ofPennsylvania, 252 F.2d 898 (3d Cir. 1958), cert. denied, 356 U.S. 975 (1958); Henry v.Godsell, 165 F. Supp. 87 (E.D. Mich. 1958). Contra, Blocker v. Board of Educ. of

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initiate action to overcome it, have been granted discretion in theirpolicy-making. " The rationale for permitting such discretion, and thestandard to be applied in evaluating the constitutional propriety or theexercise of that discretion has been proferred by Judge J. Skelly Wright:

The function of equal protection . . . is to shield groups or individ-uals from stigmatization by government. Whether or not particularlegislation stigmatizes is largely a sociological question requiringconsideration of the structure and history of our society as well asexamination of the statute itself. Legislation favoring Negroes,then, would be constitutional because it is rational and because inour society it would not stigmatize whites. "

Thus, where there is no constitutional duty to act to undo segregation,and a state or its agency uses a racial classification "to insure against,rather than to promote deprivation of equal educational opportunity,"",a court should not find a denial of equal protection. The assertion byJustice Harlan in Plessy that the constitution is color-blind" cannot beviewed as a limitation on affirmative actions.6 2 The Constitution, in thecontext of DeFunis, may very well be "color conscious to prevent dis-crimination being perpetuated and to undo the effects of past discrimi-nation. The criterion is the relevance of color to a legitimate governmen-tal purpose. 63

Closer examination of the "suspect classification" theory supportsthis analysis. Racial classifications are considered suspect because when

Manhasset, 226 F. Supp. 87 (E.D.N.Y. 1964); Jackson v. Pasadena City School Dist.,59 Cal.2d 876, 382 P.2d 878, 31 Cal. Rptr. 606 (1963): Branche v. Board of Educ. ofTown of Hempstead, 204 F. Supp. 150 (E.D.N.Y. 1962).

58. See text accompanying notes 69-78 infra.59. Wright, The Role of the Supreme Court in a Democratic Society-Judicial Ac-

tivism or Restraint?, 54 CORNELL L. REv. I, 18 (1968).60. Offermann v. Nitkowski, 248 F. Supp. 129 (W.D.N.Y. 1965), afl'd, 378 F.2d 22,

24-25 (2d Cir. 1967).61. 163 U.S. 537, 559 (1965) (Harlan, J., dissenting).62. In Dowell v. School Bd. of Oklahoma City, 244 F. Supp. 971 (W.D. Okla. 1965),

af'd. in part and remanded, 375 F.2d 158 (10th Cir. 1967), the court stated:The admonition of the first Mr. Justice Harlan . . . was directed against the"separate but equal" doctrine, and its rejection in Brown . . . was an explicitrecognition that separate educational facilities are inherently unequal, and did notconvert Justice Harlan's metaphor into constitutional dogma barring affirmativeaction to accomplish purposes of the Fourteenth Amendment.

244 F. Supp. at 981.63. United States v. Jefferson County Bd. of Educ., 372 F.2d 836, 876 (5th Cir. 1966),

aft'd en bane, 380 F.2d 385, cert. denied, 389 U.S. 840 (1967) (emphasis supplied).

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witnessed from an historical viewpoint they have been used to discrimi-nate against politically impotent groups who have been concomitantlysubjected to prejudicial behavior.64 But where an attempt to remedy pastdiscriminatory behavior is made, the political system, rather than stig-matyzing the race, is working to offset such stigmas through the vehicleof remedial legislation.65 Additionally, racial classifications have beenconsidered "suspect" because "race is a characteristic generally thoughtto be irrelevant to any legitimate public purpose." 6 Consequently, whenthere is a demonstrable showing of need in a certain area, race may bean appropriate consideration in fulfilling that need and hence relevantto a legitimate public purpose.67 Viewed in this light, the use of a reason-ableness approach would afford the state greater flexibility in respond-ing to that need.

A number of courts have dealt with voluntary attempts by the stateto eliminate de facto segregation through the use of racial classifica-tions. While giving expression to the reasonableness approach, mosthave failed to explicitly define the test employed in evaluating theseattempts." However, two courts have recently delineated the standardto be used. In Tometz v. Board of Education,69 the Illinois court, inholding that legislation requiring school boards to revise school atten-dance zones to take racial balance into consideration was permissible,adopted a traditional approach stating that the proper test should be"one of reasonableness."-7 0

The court in School Committee of Boston v. Board of Education7

64. See United States v. Caroline Products Co., 304 U.S. 144 (1938), wherein theCourt discusses:

• . whether prejudice against discreet and insular minorities may be a specialcondition, which tends seriously to curtail the operation of those political pro-cesses ordinarily to be relied upon to protect minorities, and which may call fora correspondingly more searching judicial inquiry.

Id at 154 n.4. See also Hobson v. Hansen, 269 F. Supp. 401 (1967), affd sub nom.,Smuck v. Hobson, 408 F.2d 175 (D.C. Cir. 1969).

65. See Developments at 1108.66 Id.67. See text accompanying notes 89-115 infra.68. See e.g., Offerman v. Nitkowski, 248 F. Supp. 129 (W.D.N.Y. 1965), affd, 378

F.2d 22 (2d Cir. 1967); Pennsylvania Human Relations Comm'n v. Chester SchoolDist., 427 Pa. 157, 233 A.2d 290 (1967).

69. Tometz v. Board of Educ., 39 Ill.2d 593, 237 N.E.2d 498 (1968).70, Id. at 597, 237 N.E.2d at 502.71. School Comm. of Boston v. Board of Educ., 352 Mass. 693, 227 N.E.2d 729

(1967), appeal dismissed, 388 U.S. 572 (1968).

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more explicitly defined the test to be employed. This controversy wasprovoked by a Massachusetts racial imbalance law which required thatstatistics on the racial population of each school district be reported tothe state board of education. If the statistics revealed the presence of aracial imbalance in the schools (defined as where any one school wasmore than fifty percent non-white), then the state board was requiredto order that a plan be implemented by the local committee to end theracial imbalance. In evaluating the constitutional propriety of this effortby the state to curb de facto segregation, the court applied a traditionalstandard of review, holding that the elimination of racial imbalance wasa reasonable legislative objective:

The purpose is within the constitutional powers of a state legisla-ture. The heart of the matter is whether the means are reasonablyrelated to the objective and hence are free of sound constitutionalcriticisms.

71

The court, moreover, explicitly rejected the "strict scrutiny" standardof review since racial factors were taken into consideration by the stateonly in so far as an attempt was being made to alleviate past educationaldeprivations.7 3

The New York and New Jersey courts appear to have employed thereasonableness approach in judging state or local school board actionsdesigned to curtail de facto segregation. Cases in which racial balancingwas attempted through rezoning of school districts, 7 pairing ofschools, 75 busing of students76 and voluntary transfer plans17 were upheld

72. 352 Mass. at 697, 227 N.E.2d at 733.73. Id. at 698, 227 N.E.2d at 734.74. In Balaban v. Rubin, 14 N.Y.2d 193, 199 N.E.2d 375, 250 N.Y.S.2d 281, cert.

denied, 379 U.S. 881 (1964), the court characterized a New York City School Boardplan, which drew attendance boundaries so that a new junior high school would be one-third Black, one-third Puerto Rican and one-third White, as reasonable where racialbalance was one of the factors considered in drawing the school zones. Accord, Udutv. Nyquist, 63 Misc.2d 1066, 314 N.Y.S.2d 396 (1970); Redford v. Gage, 59 Misc.2d948, 301 N.Y.S.2d 28 (1969); Katalanic v. City of Syracuse, 44 Misc.2d 734, 254N.Y.S.2d 960 (1964); Vetere v. Mitchell, 21 App. Div.2d 561, 251 N.Y.S.2d 480 (1964);Vetere v. Allen, 15 N.Y.2d 259, 206 N.E.2d 174, 258 N.Y.S.2d 77, cert. denied, 382U.S. 825 (1965); Van Blerkom v. Donovan, 15 N.Y.2d 399, 207 N.E.2d 503, 259N.Y.S.2d 825 (1965); Fuller v. Volk, 230 F. Supp. 25 (D.N.J. 1964), vacated on othergrounds, 351 F.2d 323 (3d Cir. 1965), adhered to on the merits, 250 F. Supp. 81 (D.N.J.1966); Schults v. Board of Educ., 86 N.J. Super. 29, 205 A.2d 762 (App. Div. 1964).

75. In Addabbo v. Donovan, 22 App. Div.2d 383, 256 N.Y.S.2d 178, affd, 16 N.Y.2d619, 209 N.E.2d 112, 261 N.Y.S.2d 68, cert. denied, 382 U.S. 905 (1965), it was held

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by the courts as long as there was a reasonable basis for the state orlocal board action. Equal educational opportunity realized through ra-cial balancing was considered a proper objective, hence obviating thenecessity to scrutinize the state or school board's action.7 In fact, to ourknowledge in only one case concerned with a voluntary plan by a stateor its instrumentality to eliminate de facto segregation was a strictscrutiny approach explicitly employed, 79 and in this case the strict scru-tiny test was satisfied.

The use of a reasonableness approach received additional supportfrom the Supreme Court's decision in Swann v. CharlotteMecklenburg0 wherein an affirmative plan (busing) to desegregate theCharlotte school system fashioned by a federal district court was up-held. Writing for the Court, Chief Justice Burger stated:

School authorities are traditionally charged with broad power toformulate and implement educational policy and might well con-clude, for example, that in order to prepare students to live in apluralistic society each school should have a prescribed ratio ofNegro to white students reflecting the proportion for the districtas a whole. To do this is within the broad discretionary powers ofschool authorities .... 91

Since the federal court formulated the plan in Swann, an attempt by astate administrative body to itself remedy unequal treatment of minori-

that a local school board's pairing of two schools to achieve, among other factors, racialbalance was reasonable. Accord, Steinberg v. Donovan, 45 Misc.2d 432, 257 N.Y.S.2d306 (Sup. Ct. 1965). Schnepp v. Donovan, 43 Misc. 2d 917, 252 N.Y.S.2d 543 (Sup.Ct. 1964).

76. In Strippoli v. Bickal, 21 App. Div.2d 365, 250 N.Y.S.2d 969, affd, 261N.Y.S.2d 84 (1964), it was held that the busing of nonwhite students to schools outsideof their neighborhoods was not unreasonable or arbitrary where racial balance was themain consideration.

77. Etter v. Littwitz, 47 Misc.2d 473, 262 N.Y.S.2d 924 (Sup. Ct. 1965); DiSano v.Storandt, 22 App. Div.2d 6, 253 N.Y.S.2d 41 (Sup. Ct. 1964).

78. See generally Eliott v. Board of Educ. Of the Township of Neptune, 94 N.J.Super. 400, 228 A.2d 696 (1967); Booker v. Board of Educ., 45 N.J. 161, 212 A.2d 696(1967); Morean v. Board of Educ. of Town of Montclair, 42 N.J. 237, 200 A.2d 97(1964). For similar holdings in other states, see Mason v. Board of Educ., 6 Mich. App.364, 149 N.W.2d 239 (1967); Guida v. Board of Educ. of New Haven, 26 Conn. Supp.121, 213 A.2d 843 (1965).

79. Olsen v. Board of Educ., 250 F. Supp. 1000 (E.D.N.Y.), appeal dismissed, 367F.2d 565 (2d Cir. 1966).

80. 402 U.S. 1 (1971).SL. Id at 16 (emphasis added).

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ties was not at issue. Hence, this case would have little direct preceden-tial value in terms of upholding the power of the state instrumentalityto prepare affirmative action plans; however, it is instructive for pur-poses of the inquiry. If a federal court can act to eliminate segregationon a local level, certainly state authorities who have a greater knowledgeof local needs and whose resources are much more readily adaptable tolocal problems can do the same.8

Similarly, the Supreme Court assessed the validity of the 1965 VotingRights Act, 3 passed by Congress pursuant to section 5 of the four-teenth amendment, 4 under the reasonableness test and not the strictscrutiny test.85 The Act, which had the effect of nullifying a New Yorkelection law requiring the ability to read and write English as a precon-dition to voting eligibility, was held to be constitutional under a reasona-bleness test because the Congressional measure was "plainly adopted tofurthering these aims of the Equal Protection Clause." 8 Singling outthose who completed the sixth grade in Puerto Rico in schools wherethe language of instruction was not English was deemed to be a positivemeasure enforcing rather than restricting or diluting the fourteenthamendment. 87 When this approach is applied to the context of theDeFunis case, an affirmative action plan adopted by a state instrumen-tality, if the admissions policy is deemed both to extend benefits and tobe predicated on a benign or remedial purpose, the reasonableness testwould appear to be the appropriate standard of judicial inquiry. If thereasonableness test is applied in evaluating the benign racial classifica-tion, then it will most likely be upheld. 8 Clearly, there is a rational basisfor concluding that such minority applicants, being disadvantaged andwhose presence would add to the total educational environment of theschool, were a suitable object for the remedial admissions policy.

However, even under a strict scrutiny approach, where the State ofWashington would have to show a compelling state interest in order to

82. The Washington Supreme Court held in State ex reL Citizens Against MandatoryBusing v. Brooks, 80 Wash.2d 121, 492 P.2d 536 (1972), that Swann allows schoolauthorities to affirmatively act through racial classifications to achieve a racial plural-ism in school populations.

83. 42 U.S.C. § 1973b(e) (1970).84. "The Congress shall have power to enforce by appropriate legislation, the provi-

sions of this Article."85. Katzenbach v. Morgan, 384 U.S. 641 (1966).86. Id. at 653.87. Id. at 657.88. See note 19 supra.

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justify the benign admissions policy, the policy should pass constitu-tional muster. This contention requires that the state interest be exam-ined.

There is a compelling need for minority law students in the legalcommunity. It is asserted that law school special admissions policiesdesigned to answer this need should be constitutionally upheld even ifthe strict scrutiny test were applied. Adequate justification to supportthe stringent test can be found in three compelling state interests: thestate's desire to insure that all its citizens receive proper legal services;the state's interest in seeing that law schools fulfill their educationalobligations to both their student bodies and society; and the state's dutyto see that all its citizens obtain a fair measure of administrative andpolitical representation.

There is a severe shortage of minority lawyers in the United States. 9

While this shortage is easily understood when one considers the manyfactors which have prevented and continue to hinder minority studentsfrom seeking a legal education," the magnitude of the scarcity may not

X9. For an argument that it is irrelevent to measure the shortage since it is so severe,we Sumners, Preferential Admissions: An Unreal Solution to a Real Problem, 1970 U.Toi EDO L. REV. 377:

There is no need to define exactly what constitutes 'shortage' or to discuss thequestion whether the number of minority lawyers should be exactly proportionateto the minority population. The number of minority lawyers is now so small thatthere is a shortage by definition, and we are obviously years from having toconfront the question whether the shortage no longer exists.

Id at 381 n8. See O'Neil, Preferential Admissions: Equalizing Access To LegalEducation, 1970 U. TOLEDO L. REv. 281, 294-97.

90. Law School is an expensive proposition and the correlation between being bothpoor and a member of a minority group is high. O'Neil, Preferential Admissions:Equalizing the Access of Minority Groups to Higher Education, 80 YALE L.J. 699, 730(1971): TmSIE, Jan. 5, 1970, at 32. Counseling practices in the junior and senior highschools have channeled minority students into technical and vocational trades. O'Neil,%upra at 730. Malcolm X vividly described this so typical pattern. When his eighth gradeteacher asked him if he had been thinking of a career he indicated he would like to bea lawyer. The teacher, surprised, said half-smiling:

• . . One of life's first needs is to be realistic. Don't misunderstand me, now. Weall here like you, you know that. But you've got to be realistic about being anigger. A lawyer-that's no realistic goal for a nigger. You're good with yourhands. . . . Why don't you plan on carpentry.

AtITOBIOGRAPH' OF MALCOLM X 36 (1966). Discrimination in hiring and advancementof minority lawyers has deterred minority students from seeking entrance to law school.Shuman, .4 Black Lawyer's Study', 16 How. L.J. 225, 260 (1971); McGee, BlackLawyvers And The Struggle For Racial Justice In The American Social Order, 20

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be as readily apparent.9'This shortage has resulted in a need in the minority community for

both more lawyers and better legal counseling-which the state mustsatisfy in order to provide adequate legal services for all its citizens.More lawyers are needed because the minority community is patentlyunderrepresented.92 The white, middle-class community has far greateraccess to attorneys.9 3 For instance, in New York City in 1970 there was

BUFFALO L. REV. 423, 424 (1971). Past exclusionary practices employed to deter minor-ity students from seeking admission to law school has made a legal career an unlikelyaspiration. Gellhorn, The Law Schools And The Negro, 1968 DUKE L.J. 1069, 1072(1968). Racial discrimination in society has itself deterred minority students from devel-oping plans for a legal career. Rosen, Equalizing Access to Legal Education: SpecialPrograms for Law Students Who Are Not Admissible by Traditional Criteria, 1970 U.TOLEDO L. REV. 321. The "elitist" and "exclusionary" standard of law school admis-sions policy has been identified as another barrier. Id. at 325.

91. Through August, 1971, there were 350,000 lawyers in the United States-only4,300 were Black. National Bar Foundation, Black Lawyers, Judges, Professors, &Students, (August 7, 1971) (unpublished memorandum). As of 1970, there was a partic-ular shortage of Black lawyers in the South. In Arkansas there were ten Black lawyersout of a total Black population of 357,000 and in South Carolina eleven Black lawyersout of a total Black population of 789,000. 116 CONG. REC. 7996 (daily ed. Sept. 2,1970). Even in the urban areas, where Black lawyers tend to congregate, (Note, NegroLawyers in Virginia: A Survey, 51 VA. L. REV. 521, 523-24 (1965)), Black citizens areunderrepresented by legal counsel. See text accompanying note 96 infra. The situationis similar if not worse for Spanish speaking Americans and Indians. See note 94 infra.Through 1968 not one Indian had ever received a law degree from the Universities ofUtah, Arizona or New Mexico. No Indian was practicing law in New Mexico orArizona, even though the total Indian population of these two states was over 135,000.Special Scholarship Program in Law for American Indians, 1968 University of NewMexico brochure at 4. However, steps have been taken to improve the situation. By the1969-70 academic year 71 American Indians were enrolled in law schools. A.A.L.S.BULL. NEWSLETTER No. 70-2, May 4, 1970, at 3.

92. It has been estimated that "even if the size of the profession could be keptconstant, an additional 30,000 Negro attorneys would need be trained before the Negrocould achieve parity in the legal profession." Gellhorn, supra note 90, at 1073. In 1967,Denver, with a nine percent Chicano population, had ten Chicano attorneys, accountingfor one-half of one percent of the total number of lawyers in the city. University ofDenver College of Law, Progress Report to the Ford Foundation: Law School Prepara-tory Program for College Graduates of Spanish American Descent 3 (mimeo 1967). Seealso note 91 supra.

93. This fact is borne out when one considers the correlation between race andpoverty. Gellhorn, supra note 90, states: "Legal services are still the reserve of themiddle and upper incomes." Id. at 1074. See also LAW AND POVERTY 1965: REPORTTO THE NATIONAL CONFERENCE ON LAW AND POVERTY 44-46 (1965):

[P]rivate lawyers do not serve any substantial segment of the poor; in New York

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one white lawyer for every 334 white persons, but only one Black lawyerfor every 2180 Black persons. 94 Moreover, while white attorneys couldprovide legal services for the minority community, in some sections ofthe country they are actually dissuaded from representing minorityclients through community pressure.15 This is especially true in the fieldsof civil rights and social welfare where social, political, and economicfactors have kept white lawyers from serving the minority community. 6

Furthermore, the inability of many members of minority groups to payfor legal services has restricted the number of attorneys available tomembers of these groups.17

Better legal counseling is also needed because the white lawyer facesinherent disadvantages in representing minorities. The white lawyer isless able to comprehend the background of the problem at hand (be-cause of cultural and linguistic difficulties), is unable to effectively inter-view witnesses from the minority community and cannot adequatelyestablish an understanding relationship with his client.9 8 These problemsare accentuated when the more personalized role of the attorney comesinto play. Certainly, these are problems the minority lawyer does notface. "

City where more than half of the residents have an income below $5000, only 5%of the Bar reported the medium income of their clients below that amount.

Id. ,at 45. Dorsen & Gillers, We Need More Lawyers, JURis DOCTOR, April, 1972, at7, .

94. 116 CONG. REC. 7996 (daily ed. Sept. 2, 1970).9i. Comment, Negro Members of the Alabama Bar, 21 ALA. L. REv. 306 (1969).96 Gellhorn, wupra note 90, at 1071.97. Id. at 1074. Gellhorn has indicated that even considering the government spon-

,ored and voluntary legal service programs, the need for attorneys in the minoritycommunity is not being met. Not all sections of the country have these services availablenor is representation provided in all types of cases.

98. O'Neil, supra note 90, at 728.99. Some commentators argue that minority clients have little confidence in minority

attorneys because the latter are less educated and will face discrimination in court. Id.But see Toepfer, Harvard's Special Summer Program, 18 J. LEGAL EDUC. 443 (1966):

There are reasons why a special effort should be made to attract Negro studentsto study law. In the effort to provide equal rights and opportunities for Negrocitizens, there are heavy responsibilities and burdens for lawyers to carry. Thesecan best be met by a Bar which includes Negro lawyers in significant numbers,for it is those lawyers who most clearly understand the problems and difficultiesftaced by members of the Negro community. In bringing legal counsel to the poor,in administering criminal justice, as well as in the struggle for civil rights, anincreased number of Negro lawyers can make a great contribution.

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Secondly, the state has a compelling interest to see that law schoolswithin its jurisdiction provide legal training which will result in theavailability of effective legal services for all its citizens.' As the Su-preme Court recognized in Sweatt v. Painter, to achieve a proper educa-tional environment, law schools must ensure that participants in theeducational process represent as fairly as possible the "individuals andinstitutions with which the law interacts."'' Further, the Court indi-cated that the law school does not adequately prepare its students if theyare "removed from the interplay of ideas and the exchange of views withwhich the law is concerned."'' 0 The appellants in DeFunis take note ofthese comments:

The Court showed a profound appreciation of the nature of legaleducation. Law is not a body of fixed principles that can be trans-mitted by a teacher to a passive group of students. It is at best aprocess of thought, a way of perceiving and attacking problemswithin a general committment to reasoned conflict resolution.0 3

Thus, a legal education can only serve its purposes when there is exten-sive communication among all those involved in the legal process, andthis "depends above all on the quality and texture of the student popula-tion."'' With a student population reflecting a cross-section of thosewhom the legal profession will represent, the law school will performits function for white students who will be better able to understand theperceptions, needs and desires of minorities and, at the same time, beprepared to more adequately handle the multifarious problems the lawwill present to them.0 5 Moreover, the law school will also fulfill itsobligation of providing society with minority lawyers willing to assumeresponsibilities heretofore not properly served by the legal profession.Furthermore, an additional benefit resulting from increased minorityrepresentation in the law schools will be more minority law professors.'The law school faculties are presently predominately Caucasion.' 7

100. Brief for Appellants, supra note 5, at 29.101. Sweatt v. Painter, 339 U.S. 629, 634 (1950).102. Id.103. Brief for Appellants, supra note 5, at 29.104. Id.105. Katz, Black Law Students in White Law Schools: Law in a Changing Society,

1970 U. TOLEDo L. REV. 889.106. Brief for Appellants, supra note 5, at 29-30.107. As of August 1971, there were 3100 law professors in the United States-102

were Black. National Bar Foundation, supra note 91.

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Legal education will be improved when the views of minority professorsare reflected in the classroom and in general law school policy.'

Finally, the state has a compelling interest that all its citizens receivenot only efficient legal services but also administrative, political, andcommunity representation. Lawyers play a significant role in adminis-trative positions, 10 politics," 0 and the community at large."' At thesame time, minorities are disproportionately represented in theseareas."12 The state must seek to correct this imbalance by providingmeans whereby a greater number of minority lawyers will be available.With more minority lawyers assuming positions in these fields, govern-mental policy will better reflect the interests of the minority com-munity"I and, in turn, minority groups will begin to understand thatthe government will better serve their needs." 4

Thus there is a compelling need for minority law students and law-yers. By establishing a preferential admissions policy the law schoolswill answer the state's interest in reducing the severe shortage of minor-ity lawyers and in providing a comprehensive legal education for all lawstudents. Moreover, the result will be a greater percentage of minoritylawyers to meet those numerous legal problems faced by members ofminority communities which, at the present time, are not being suffi-

108. Katz, supra note 105.109, The American Bar Association has indicated that ten percent of American

lawyers are employed in governmental capacities, including service as judges and prose-cutors and in various types of civil service positions. It has additionally pointed out thata legal background is recommended for various kinds of policymaking and agencypositions in the executive branch. AMERICAN BAR ASSOCIATION, CAREERS IN LAW, THE

LAW'YERS ROLE IN SOCIETY 17 (1968). See also Edwards, The Black Law Graduate, 69MI( ii, L. REv. 1407 (1971).

110. There has always been a high percentage of politicians with law degrees-25%of state legislators, over half of the House of Representatives, and 70% of the Senate.American Bar Association, supra note 112, at 18.

I11. O'Neil, supra note 90, at 728; Brief for Appellants, supra note 5, at 31.112. For instance, only 0.3% of all elected officials in the United States are Black,

with 60% of those Blacks elected serving in local capacities. JOINT CENTER FOR POLITI-"Al STUDIES, NATIONAL ROSTER OF BLACK ELECTED OFFICIALS (1971). Of the 20,059judges in the United States as of August, 1971, only 280 were Black. Black Lawyers,Judges. Profesvor'. & Students, supra note 91; Brief for Appellants, supra note 5, at31.

113. See Edwards, note 109 supra.114. The growth in the number of minority lawyers will also serve as an impetus for

those in the minority community who aspire for a legal career. The desire will not ebbso quickly and the promise will not seem as distant. There will appear to be "an avenueand an evidence of advancement." O'Neil, supra note 90, at 728.

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ciently resolved. Finally, with additional minority lawyers, administra-tive agencies and the local, state and national governments will be pro-vided with minority representatives, who in turn will be better equippedto answer the needs of the minority community and the needs of thestate.

By responding to these compelling state needs through preferentialadmissions standards, law schools will perhaps reject qualified whiteapplicants."5 However, in order to meet the state's compelling interestfor more minority students, law schools must recognize race among thefactors considered for acceptance." 6 This recognition of race as a factoris not unique; admission committees have traditionally considered cri-teria of a non-numerical nature."7

The use of race as an admission criterion represents a recognition ofthose special contributions minority students can and must make to thelaw school and the profession. A greater emphasis on those qualitieswhich cannot be measured by numerical indices will permit minoritystudents greater access to law schools, improve the quality of legaleducation for all students, and permit the minority community toachieve adequate legal, political and administrative representation.Moreover, an increasing body of literature in the field of educationalmeasurement suggests that numerical indicators of academic abilitymay not necessarily be accurate for those outside of the mainstream ofthe dominant culture and that a single measure for all groups may notbe warranted."'

115. This statement is understood when one recognizes that only a small percentageof law school applicants are members of minority groups (Brief for Appellants, supranote 5, at 32); the total number of applicants is far greater than the law schools resourcesand capacities (Rudd, That Burgeoning Law School Enrollment, 58 A.B.A.J. 146(1972)): and if numerical factors were alone considered as criteria for admissions therewould be few minority law students (for example, if numerical factors were aloneconsidered at the University of Washington Law School, at the most, there would havebeen one minority law student in the 1971 entering class).

116. Brief for Appellants, supra note 5, at 32.117. E.g., employment record, recommendations, extra-curricular activities, etc.118. Gozanski & DeVito, An Enlightened Comparison: The Relevant Strengths and

Weaknesses of the CLEO Program and the Pre-Start Program of Emory University,1970 U. OF TOLEDO L. REv. 719; Fleming & Pollack, The Black Quota at Yale LawSchool, PUBLIC INTEREST, Spring, 1970, at 44; Comment, Current Legal Educationof Minorities: A Survey, 19 BUFFALO L. REV. 639 (1970); Scoles, Challenge andResponse in Legal Education, 48 ORE. L. REv. 129 (1969). With respect to this con-tention the Law School Admissions Test has generated a great deal of controversy.Arguments arise over its fairness in measuring the ability of minority students to do

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equal protection and benign racial classification: a

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