*1 No. Philip Regents University Colorado, F. DiLeo v. The Board of of Betz, Sr., Bean, Atkins, Schmidt, Fred Geraldine Eric Dale W. Thomas Moon, Anderson, Moses, Gilbert, S. Jack Kent Raphael J. Robert M. Johnson, Byron of Board members of the University of Colorado, Rautenstraus, C. Roland President of the University of Colorado, Peterson, Courtland Dean the University H. of Colorado Law, Jr., Corbridge, School James N. Vice-Chancellor Admissions, Academic Affairs and member of the Committee Law, University Kuo, of Colorado School of Alex Assistant Vice- Affairs, Colorado, Colvin, Chancellor for Academic Pearl I. Placement, Assistant Dean Admissions and of Colorado Law, Rentfro, Director, Special and William E. Academic Program, University Assistance of Colorado School of Law
(590 486) August Decided 1978. *2 Ternlund, plaintiff-appellant. David J. for Tharp, defendants-appellees. Richard A. Jr., Kinonén, Finley, O. John Brashich and Finley,
Donald W. Blinick, curiae, on Academic Michael for amici Committee Legal Integrity Nondiscrimination and and Mountain States Foundation. Banc. En
MR. CHIEF PRINGLE delivered the opinion JUSTICE Court.
This case involves a constitutionality Special Program (S.A.A.P.) Academic Assistance established and administered of Colorado School of Law. The law school’s is set forth in article of the Rules of l-6-2(c)(ii) law school. Rule eligibility establishes the standards for pertinent part reads in as follows: designed identify appear to law students who to prospective “[A] ability graduate the intellectual from this law school but would not standards, eligible otherwise be for admission under admission normal adequate which have not had groups who are members of identifiable opportunities educational and cultural available to them and which seriously are in the underrepresented legal profession. It is understood Negroes, American Indians are such groups, Mexican-Americans and most, all, may expected par- members of which to constitute intended, however, ticipants preclude partici- in this It is not of other identifiable are shown to fit pation by members which within the standards set forth in the first sentence of this subsection.” added.) (Emphasis the, by reviewing vari-
Groups which meet listed criteria are selected data, materials, which reflect such ous census bureau primarily income, information as per median and capita education level and repre- legal sentation in the profession. regional Both national and figures, when available, Regional figures are reviewed. in particular assessing are used in representation profession. review,
Using this method of the law school determined in 1974 that criteria, Asian Americans and Italian Americans did not fit the program’s at that time. The group of Italian foreign Americans was defined as born or native born with one foreign parent. born it was determined that Cubans Hawaiians were not to be included in the program but that Puerto Ricans would be included.
Applicants for the S.A.A.P. are screened to determine whether they are eligible members of an group. The S.A.A.P. is a competitive admis- sions program for those subjective objective and both criteria evaluating are used in eligible applicants.
The approximate number of students be admitted is determined in *3 advance, based on available facilities. This predetermined number of spaces filled if there are applicants available. We do not here determine whether this use of predetermined number affects the constitutionality of because we decide the case on another is- sue.
Plaintiff DiLeo applied admission to the law school S.A.A.P. for the entering class of 1973 subsequently for the entering class of 1974. In years, rejected both the application was on the basis that he was not a member of an group having identifiable inadequate educa- tional and opportunities cultural and seriously underrepresented in le- gal profession. Following rejections, these two brought this action in the District Court of Boulder challenging the S.A.A.P.
The trial court in granting the law school’s motion for summary judg- ment, held that DiLeo did not have to challenge the constitution- ality program itself since there were no S.A.A.P. he would not court, have been admitted to the law school. The stating trial that DiLeo could only challenge the exclusion his from the program, also held that the law school had arbitrarily not acted or in capriciously ex- cluding the group of which DiLeo was a member from in eligibility program.
The case is now appeal before us on and we affirm the trial court’s ruling to the extent it application rejected holds that DiLeo’s was properly consideration the S.A.A.P. issue, presents case before us a sensitive complex an issue the resolution of which important has moral and social consequences. The law school has established the S.A.A.P. to increase minority enrollment and minority representation community. programs Similar colleges been established by throughout and universities nation remedy past effects of societal discrimination. by operated as established that the
DiLeo claims He ar- is unconstitutional. of Colorado University of Law of constitutional, disadvantaged is itself for the that while a gues school is unconstitutional by the law as administered the S.A.A.P. their race or ethnic the basis of solely persons to exclude operates it her- American being he of Italian argues background. Specifically, and eco- schools, socially educationally, was of slum itage product and a eligible ap- an been considered disadvantaged and should have nomically S.A.A.P. for the plicant argument Amendment is that of Plaintiffs Fourteenth
The essence by denying of the laws right equal protection school violated his the law he claims admitting applicants school while who him admission to the law similarly situated. us, Supreme case was before the United States pending While this Court issued its decision of California (1978). In 2733,_L.Ed.2d_ Bakke,_U.S._, Bakke, validity of a medical reviewed a the Court of this review was that the The result special school’s at Davis was ordered to ad- Medical School of the California school. mit Alan Bakke to the male, Bakke, alleged pro-
Alan a white him on of his race in violation of the gram operated to exclude the basis Protection Clause of the Fourteenth Amendment of the United Equal Constitution, Constitution, provision States California §601 *4 seq. Act of 1964. The Bakke case et Rights VI of Civil Title the was considered posture reached the Court in a where Alan Bakke regular admission and have been admitted to the medical school program. for the admissions special but Bakke case. Only Court of the majority opinion
There was no Four of issue. the constitutional actually addressed of the Justices five Blackmun) White, found Marshall and (Brennan, Justices these Jus- These Constitution. did not violate the admissions special disadvan- minority students admitting goal Davis’ “that tices concluded jus- sufficiently important is past discrimination taged by the effects 98 at_, criteria.”_U.S admissions use of race-conscious tify at_(1978). 2789,_L.Ed.2d Court, of the found judgment Powell, announced who Justice Mr. 220
that the admissions served a state interest1 but compelling a However, racial was not to achieve this necessary interest. “quota” he did determine consideration of and ethnic competitive race origin be a of an might properly part program. Stevens, joined Justice Chief opinion by Burger,
Mr. an Justice Justice Stewart and Justice that Title VI Rehnquist, Mr. Mr. determined applied and that Bakke was excluded from the medical school in violation did of Title VI. These Justices not reach the constitutional issue of race can whether ever be a factor in an admissions Whether in the policy. considerations, given absence of Title VI or an amended of Title version VI, any might join of these Justices the Fourteenth Amendment conclu- Brennan, Marshall, sions of Justices White and Blackmun is be de- yet to cided.
The law school asserts that the in Bakke does decision not mandate agree. DiLeo’s admission to the law school. We The threshold to be addressed is question whether DiLeo has standing constitutionality general of the S.A.A.P. The standing a developed person rule Colorado to have to chal lenge constitutionality personally of state actions must be af adversely constitutional defect asserted. particular E.g., People fected v. Pueblo, (1978); v. 110, City P.2d 423 Garcia Stage, 195 Colo. 575 Peacock, 96, (1971); 489 200 157 People 176 Colo. v. Stark and following language 400 P.2d from McKinley Colo. Dunn, 487, 492, (1960) Colo. 349 P.2d is instructive in this regard:
“We follow the
con-
generally accepted
constitutionality
rule that
is to be
only
light
standing
sidered
in the
who seeks to raise the
party
question
may challenge
constitutionality
of a statute
person
being
applied
when and as
as it is
or is about
to be
to his
far
Bilett,
122 Colo.
The trial court’s
that DiLeo had no
was based
body
Powell found that the attainment of a diverse student
compelling
was
context
university’s
Supreme
previously recognized
The United States
Court has
Painter,
importance
goal.
629, 634,
848, 850,
In Sweatt of this
94 L.Ed.
(1950),
that Court stated:
“Moreover, although
highly
profession,
the law is a
learned
we are well aware that it
in-
is an
school,
tensely practical
proving ground
legal learning
practice,
one. The law
cannot effective in isolation from the individuals and institutions with which the law interacts. New stu-
study
vacuum,
practiced
dents and no one who has
law would choose to
in an academic
removed
*5
exchange
,[W]ith
interplay
views with which
is
from the
of ideas and
of
the law concerned.
. .
significant segment
society
.
such a substantial and
of
excluded.
. we cannot conclude that the ed-
substantially equal.
ucation offered ...
is
. . .”
Accord,
Education,
1,
1267,
Charlotte-Mecklenburg
Swann v.
Board
402 U.S.
91
28
11,
Odegaard,
(1971);
(1973),
DeFunis v.
vacated as
L.Ed.2d 554
82 Wash.2d
221 its view in effect there would be no remedy available DiLeo if agreed allegations even the court with his unconstitutionality. We agree. similar to Alan position we DiLeo is not in a
Initially Philip note that Bakke would special program” for the existence of the Bakke in that “but admission to medical the benefit of been entitled to educational have eligible not been clear the record that DiLeo would school. It is from under normal of Colorado School Law for admission in were unconstitutional Thus even the S.A.A.P. admissions standards.2 if there would have been admitted respect applicant to an who like Bakke to is situated so as make DiLeo not special program, were no admissions challenge. fact, to special program the admissions In DiLeo does want Rather, along non he wants it to redrawn be declared unconstitutional. along drawn established the law school is racial lines. as program the is group example, program lines. For one of criteria principal of a in applicant group underrepresented that the be a member which is us this community. DiLeo asks to declare unconstitutional But would down the aspect program. pro this be in effect to strike gram is function of a court to es presently proper constituted. It not the university, for a nor to rewrite the tablish an admission argument would according import to its Thus the of DiLeo’s own notions. university be to no admissions Since DiLeo special leave with a through regular program, would not be admitted success constitutionality posi ful would leave DiLeo’s program’s unchanged. tion holding
Our
170 Colo.
796
People,
Lee
had
(1969),
at
we noted that the defendant
applicable
point.
is
this
Lee
standing
argument
no
because the
equal protection
raise an
and,
ruling
a
here
any way by
could not benefit in
such
“[defendant
Colo,
therefore,
case.”
is in no
to raise the issue
this
position
a
MR. eligible had In fact it is not clear that even if DiLeo been considered the S.A.A.P. he S.A.A.P., applicants of 59 admission have been admitted. In who were offered higher applicants prediction had indexes who were members of than higher (A prediction prediction index and had indexes than DiLeo denied admission. (1) composite by combining applicant’s derived factor which is in a mathematical formula degree school, average, (2) (3) grade point quality rating applicant’s applicant’s LSAT score, (4) score.) applicant’s writing ability *6 MR. dissenting: JUSTICE ERICKSON view, respectfully I dissent. In my the record injury demonstrates an to DiLeo is likely to be redressed a by favorable decision on be- his Bakke, half. _U.S. California _, (n. 14), 98 S.Ct. 2743-44 _L.Ed.2d _(1978) Seldin, Worth (Powell, J.); 490, 498, L.Ed.2d 343 Bakke, by
Guided which admittedly divergent reflects and diverse views the Justices of the Supreme pro- Court of the United States and guidelines sense, vides definitive ephermeral most I hold the University of Colorado School of Law Special Academic Assist- (S.A.A.P.) Program ance is unconstitutional.
I. Standing ruling The trial court (1) which we are called upon review assumed was DiLeo denied admission because group designated, his was not (2) designated, had his been he would have been admitted as a stu- dent.
The trial court not upon did rule the constitutionality of the S.A.A.P. on the theory program unconstitutional, even were DiLeo lacked he was because not for general admission under the admission standards. out, this case differs from the Bakke majority
As the opinion points fact situation in that Bakke would have been admitted but the special California at Davis Medical Here, School. DiLeo he claims that was entitled to be considered ad- mission under the 106-2(c)(ii), S.A.A.P. Under Law School Rule students are admitted to (1) the S.A.A.P. who are members of identifiable seriously underrepresented (2) which are profession which adequate had educational and opportunities cultural available to years them. both 1973 and when applied DiLeo for admission S.A.A.P., under in the law were places class allocated in ad- Mexican-Americans, vance to program. Only those Black- who Americans, and American Indians were considered for those places August 1, 1974, added, On 1973. Puerto Rican-Americans were but ineligible. Asian-Americans and Italian-Americans were declared he background asserts that comes from a which is character- by ized indicia of mi- deprivation by designated as severe as faced norities. Specifically, grew up he has established that he in New York’s crime, violence; drugs “Little a slum with Italy,” inflicted that he was that, uneducated, by working raised parents; class his second- education, ignorance beset ary by attended slum schools and indiffer- such, As ence. he claims that he must great surmount difficulties as given those faced those minorities preference. Law School asserting
DiLeo is not that it is unconstitutional for the students, is disad- disadvantaged a S.A.A.P. to aid but claims he to have him for consideration. As vantaged background qualifies and that his such, the S.A.A.P. he asserts that he would be for admission under meaningful and that he has been denied applied, if non-racial criteria were out, majority points in that because of his race. The participation *7 2, at note that: 1973, of applicants
“In 59 who were offered admission the S.A.A.P., higher and 24 prediction applicants 50 had indexes than DiLeo higher who were members of and had indexes prediction than DiLeo were denied admission.” this, that, majority
From the draws the conclusion even if were con- sidered in the program, admissions would not have been ac- cepted by the Law School. finding
The majority’s misappre- reference to this indicates that it Bakke. hends the of Nine in a import persons who were participants race, from which DiLeo program, was excluded on the basis of his were considered, less only and not but also were offered admis- Thus, unnecessary sion the Law School. it is that DiLeo claim that he general would have been admitted under the and in program the absence of the It University Colorado’s S.A.A.P. is sufficient purposes that DiLeo establish that he was not considered as a disadvantaged student under the S.A.A.P. because he was not a member designated of a minority.
Moreover, I am that once it was ex- persuaded shown that DiLeo was cluded from the S.A.A.P. because of his race the burden of proof shifted University Colorado to demonstrate that DiLeo would not have accepted been if he had been considered for admission under the S.A.A.P. short, University would have to demonstrate DiLeo would have been if pro- considered for admission under the S.A.A.P. even Regents, not use race as a decisive factor. Bakke v. Board of gram did Franks 34, 1152, v. Bowman (1976); 18 Cal.3d 553 1172 Co., 747, 1251, Transportation (n. 32), 424 47 U.S. 773 96 S.Ct. 444 L.Ed.2d
II.
Suspect Classification
The issue common to both Bakke
and this
whether a racial
case is
minorities,
which is
but which has the ef-
classification
intended to assist
enjoy
fect of
but
they
those not so classified of benefits
depriving
race,
“impor-
invokes
interest” or
an
“compelling
for their
state
governmental objectives”
Only
Supreme
tant
test.
Court of the United
See
Oregon
v.
question.
States can
the final words on that
pronounce
Hass,
714,
1215,
(1975). majority
the Justices of that Court have 2756-60, supra id. at 2783-84 (Powell, J.); (Brennan, White, at Mar- shall, Blackmun, J.J.) (concurring part dissenting and in part). However, time, present at order to meet the set requirements forth Powell, by Justice we must assume that must demonstrate a compelling state interest maintaining program its no less re- will purpose. strictive method effect its
The cannot meet that burden in this The case. S.A.A.P. by administered essentially Law is and fatally similar to that by established School at Medical Davis. crucial fact is that both Bakke and DiLeo were meaningful denied participation in least some major facet of the the basis their solely race. S.A.A.P., administered,
Once
has been
it
demonstrated that the
se
per
Bakke
classification,
created a
racial
strict
requires that the
scru-
tiny
applied.
If
affects
fundamental interest or
test
em-
classification,
ploys
invoked,
a suspect
strict
scrutiny
can be
upheld only
necessary
interest,
it is
promote
compelling state
E.g.,
Dunn
promoted
that interest cannot be
onerous
less
means.
Blumstein,
Loving
(1972);
U.S.
S.Ct.
erence to individuals. Nor does he the Universi- on its ty’s reliance belief that the fact that an individual is member of an identifiable, disadvantaged group probable makes a member it more in the Bakke Nothing prevents is disadvantaged. opinion clear, making judgment. Law from Justice Powell makes how- ever, define it designates must those disad- vantaged is, racially desig- neutral terms. That when the Law School prefer, members it it minority group, may nates a of which wishes to designate reference to its racial group by characteristics. herein, DiLeo, For reasons has my opinion, stated per se racial classification the S.A.A.P. creates S.A.A.P. imposed must because of the limitations which is fail prohibited California, supra. Bakke
No. C-1193 Company Insurance Murray Montgomery Bill F. Ward Life 78) (584 P.2d Rehearing August denied October 1978. Decided 1978.