Major Jewish Groups Divided over Marco De Funis Case — by Joseph Polakoff

May a public university, even when faced with intense social problems, establish two standards of admission –one for white students and another, at a lower level of qualifications, for non-whites? The U.S. Supreme Court now has a test case that revolves around a Jewish student, Marco De Funis Jr. of Seattle, who had been barred from entering the University of Washington Law School because of this question.

The tribunal’s decision, expected after March 18 but not later than June 30, is certain to have nationwide repercussions socially and educationally. According to some legal authorities this case constitutes the most important civil rights case since the courts acted in 1964. Although de Funis is Jewish the issue involved is not discrimination against a Jewish student but on the principled question of admissions policy.

The constitutional issues the case has raised have divided the American Jewish community as they have other strata of national organizational life. When the case was aired on Feb. 26 all nine justices evinced their strong interest by participating in the questioning of the presentations. Josef Diamond, a Seattle attorney, argued the case for De Funis. Appearing for the university and its former president. Dr. Charles Odegaard, now retired, was Washington State’s Attorney General Slade Gorton.

COURTS DIFFER ON ISSUES INVOLVED

De Funis, a Phi Beta Kappa and a Magna Cum Laude graduate at Washington’s undergraduate college, sued the law school after it had twice refused to admit him. A trial in a Washington state court showed that by the university’s own standards, based on college grades and the school’s aptitude tests, only one of the 37 Blacks, Spanish surnamed, and Philippine-Americans scored better than De Funis but they were all admitted. Asian-Americans were treated the same as whites and given no special consideration.

Of the 1601 applicants for the 150 places in the class entering in Sept. 1971, the highest grade achieved was 81. De Funis scored 76.23. Any white applicant who achieved under 74.5 was in effect automatically denied admission. Among the minorities, 30 who scored below that figure were eventually accepted.

The Washington lower court upheld de Funis and he was enrolled in the law school. On appeal, however, the State’s Supreme Court ruled for the university. When De Funis took his case to the U.S. Supreme Court, Justice William O. Douglas ruled he may remain in school until the federal tribunal decided the issues. He is now expected to be graduated in June.

Among those taking the De Funis or single standard position are the Anti-Defamation League of B’nai B’rith, the American Jewish Congress and the American Jewish Committee, each of which filed separate briefs. Supporters of the university’s or double standard position include the National Council of Jewish Women and the Commission on Social Action of the Union of American Hebrew Congregations.

Two of America’s leading constitutional lawyers, Alexander M. Bickel and Philip B. Kurland of Yale and University of Chicago Law Schools, respectively, contended in their brief for the ADL that the school’s policy validated discrimination by race. “If the Constitution prohibits exclusion of Blacks…on racial grounds,” they contended, “it cannot permit the exclusion of whites on racial grounds.” Had De Funis been Black, Indian, Chicano or American Filipino, such exclusion, it was held, would have been unconstitutional. “The racial quota is of particular concern to the Jewish minority in this country,” the ADL said “because of the long history of discrimination against Jews by the use of quotas.”

JEWISH GROUPS PRESENT THEIR VIEWS

The AJ Congress contended that “Our system of constitutional liberties would be gravely undermined if the law were to give sanction to the use of race in the decision-making process of governmental agencies.” The AJ Committee held that a quota system would result in “erosion of standards…in the long run detrimental to the best interests of the Black community.” The Jewish Rights Council of New York called admission on a merit basis “one of the keystones for success of the Jew and other minorities in America.”

Siding with the university. Albert Arent of Washington, chairman of the UAHC’s Commission and Mrs. Eleanor Marvin of New York, the National Council of Jewish Women president, asserted that the issue “represents neither a case of discrimination on the part of the university nor a quota case against Jews,” and noted that the university’s admissions policy is a reasonable one. The joint statement added, “As Jews we must continue to fight for all of our rights and causes. However, our long history for social justice demands that we not turn our backs on other minority groups seeking the same advantages so long withheld from us….We do not believe that Jewish groups should seek to undermine legitimate affirmative action programs by seeking to equate them with ‘quotas’ and ‘reverse discrimination’ where such charges are not warranted by the facts.”

In her brief for these two Jewish organizations and 15 others, Mrs. Marion Wright Edelman observed that the issue is “whether the Fourteenth Amendment of the U.S. Constitution forbids a discretionary admissions process whereby a state university law school affirmatively seeks qualified students from racial minority groups when such groups have long been victims of racial discrimination and had only token membership in the law schools and the legal professions.

The Edelman brief also held that the university does not use a quota system but is involved in weighing individual minority students’ qualifications within a traditionally discretionary admissions process that does not consider any application on scores alone. The National Association of Manufacturers and the AFL-CIO also would prohibit preference based on race. Management and labor leaders both are said to consider that such a precedent in public education would lead to a quota system in private employment.

Two former U.S. Solicitors General, Archibald Cox, representing Harvard University, and Erwin Griswold, for the American Association of Law Schools, supported the Washington University. In his brief, Cox contended that the Fourteenth Amendment does not prohibit a selective admissions policy nor requires the judiciary to prescribe standards of selections. Others supporting the university are the American Bar Association, the Americans for Democratic Action and the State of Ohio.