DeFunis v. Odegaard , 82 Wash. 2d 11 ( 1973 )

Defendants, who include the members of the Board of Regents of the University of Washington, the president of the university, and the dean and certain members of the Admissions Committee of the University of Washington School of Law, appeal from a judgment ordering them to admit plaintiff Marco DeFunis, Jr., as a first-year student to the University of Washington School of Law, as of September 22,1971.

Broadly phrased, the major question presented herein is whether the law school may, in consonance with the equal protection provisions of the state and federal constitutions, consider the racial or ethnic background of applicants as one factor in the selection of students.

Marco DeFunis, Jr. (hereinafter plaintiff), his wife, and his parents commenced an action in the superior court, alleging that plaintiff, an applicant for admission to the University of Washington School of Lauf (hereinafter law school) for the class commencing September 1971, had been wrongfully denied admission in that no preference was given to residents of the state of Washington in the admissions process and that persons were admitted to the law school with lesser qualifications than those of plaintiff. The complaint asked that the court order the defendants to admit and enroll plaintiff in the law school in the fall of 1971 and, upon the failure of defendants to do so, that plaintiffs recover damages in the sum of not less than $50,000.

The superior court granted a temporary restraining order and order to show cause, restraining defendants from selecting students for admission to the law school during the pendency of the action. Defendants, in turn, moved to dismiss the complaint on the grounds that the court lacked jurisdiction of the cause and that the complaint failed to state a claim upon which relief could be granted.

The superior court dismissed that portion of the plaintiff’s complaint seeking monetary damages. The balance of defendants’ motion to dismiss was denied, and a temporary injunction was entered enjoining the defendants from admitting students to the law school “in a number which would preclude the admission of plaintiff, Marco DeFunis, Jr., to the 1971-72 first year class, should his admission eventually be ordered by the court.” After a nonjury trial, the court ruled that in denying plaintiff admission to the law school, the University of Washington had discriminated against him in violation of the equal protection of the laws guaranteed by the fourteenth amendment to the United States Constitution.

Law school admissions pose a complex problem, and require a sensitive balancing of diverse factors. To gain insight into the complicated process of selecting first-year law students, and to better appreciate the essence of plaintiff’s complaint against the law school, we turn first to the circumstances and operative facts — as delineated by the record — from which this litigation arises.

Under RCW 2BB.20.130 (3), the Board of Regents of the University of Washington has the power and duty to establish entrance requirements for students seeking admission to the university. The dean and faculty of the law school, pursuant to the authority delegated to them by the Board of Regents and the president of the university, have established a committee on admissions and readmissions to determine who shall be admitted to the law school. For the academic year September 15, 1970, to June 15, 1971, the committee was composed of five faculty members and two student members; on June 7, 1971, the faculty of the law school expanded the membership of the committee to six faculty members and three student members. The chairman estimated that the committee spent over 1,300 hours in the selection process for the 1971-72 first-year class.

The number of qualified applicants to the law school has increased dramatically in recent years. In 1967, the law school received 618 applications; in 1968, 704; in 1969, 860; and in 1970, 1,026 applications were received. The law school received 1,601 applications for admission to the first-year class beginning September, 1971. Under the university’s enrollment limitation there were only 445 positions allotted to the law school, and of these the number available for the first-year class was between 145 and 150. The chairman of the admissions committee stated that most of these applicants would be regarded as qualified by admissions standards at this and other comparable law schools in recent years. Hence, the task of selection is difficult, time-consuming and requires the exercise of careful and informed discretion, based on the evidence appearing in the application files. While many applicants are relatively easy to select for admission because of very outstanding qualifications, and others are relatively easy to reject, the middle group of candidates is much more difficult to assess. Plaintiff was in this latter category.

Applicants for admission to the law school must have earned an undergraduate degree and taken the Law School Admission Test (LSAT) administered by the Educational Testing Service of Princeton, New Jersey. They must also submit with their written application a copy of transcripts from all schools and colleges which they have attended prior to application for admission, together with statements from their undergraduate dean of students and letters of recommendation from faculty members in their major field of study. They may submit additional letters of recommendation and statements. The application for admission gives the applicant the option to indicate his “dominant” ethnic origin. The admissions process does not include personal interviews and does not reveal whether applicants are poor or affluent.

The committee’s basic criteria for selecting students are expressed in the “Guide for Applicants”, a copy of which plaintiff received with his 1971 application:

We below describe the process we applied to determine the class that entered the University of Washington School of Law in September 1970. We anticipate that the same process will be applied in determining membership in the class of 1971.

In assessing applications, we began by trying to identify applicants who had the potential for outstanding performance in law school. We attempted to select appli: cants for admission from that group on the basis of their ability to make significant contributions to law school classes and to the community at large.

For the purpose of a preliminary ranking of the applicants for the class of 1974, the junior-senior undergraduate grade point average and the Law School Admissions Test scores¹ for each applicant were combined through a formula to yield a predicted first-year of law school grade average for the applicant. This preliminary index number is called the Predicted First-Year Average (PFYA). The relative weight of grades and test scores in this formula was determined on the basis of past experience at the law school. The same formula is used for all applicants in a given year. If an applicant has taken the LSAT more than once in the past 3 years, the average score is employed rather than the latest score; this is done to offset a learning effect which statistical studies by the Educational Testing Service indicate occurs as the result of the multiple taking of the test.

Plaintiff’s PFYA, as determined by the law school, was 76.23. This figure was calculated by using a formula combining plaintiff’s junior-senior grade point average of 3.71, average LSAT score of 582 (512 plus 566 plus 668, divided by 3)² and average writing test score component of 61 (62 plus 58 plus 64, divided by 3).

Ranking of applicants by PFYA was used to help organize the committee’s processing of the applications. On the basis of the previous year’s applicant group, the committee decided that most promising applicants for the class of 1974 would be defined as applicants with predicted first-year law school averages over 77. Applicants with PFYAs above 77 were reviewed and decided by the full committee as they came in, in order to reach an early decision as to the acceptance of such students. Each of these files was assigned to a committee member for thorough review and for presentation to the committee.

Applicants with PFYAs below 74.5 were reviewed by the chairman of the committee, and were either rejected by him, or placed in a group for later review by the full committee. The decision of rejection or committee review of an application was based on the chairman’s judgment derived from information in the applicant’s file indicating whether the applicant had a significantly better potential for law study than the relatively low predicted first-year average tended to indicate. Cases of doubt were to be resolved in favor of deferring judgment until committee review could be undertaken.

Two exceptions were made in regard to applicants with PFYAs below 74.5. First, the law school had established a policy that persons who had been previously admitted but who were unable to enter, or forced to withdraw from, the law school because of induction into the military service, had a right to reenroll if they reapplied immediately upon honorable completion of their tour of duty. Second, all files of “minority” applicants (which the committee defined for this purpose as including Black Americans, Chicano Americans, American Indians and Philippine Americans³) were considered by the full committee as warranting their attention, regardless of the PFYA'of the individual applicant.

Applicants with predicted first-year averages between 74.5 and 76.99 were accumulated and held until the applications deadline had passed and essentially all the applications were complete and ready for review, so that the critical decisions as to the remainder of the incoming class could be made with a relatively complete view of qualified applicants not therebefore admitted. Plaintiff’s application, presenting a 76.23 predicted first-year average, was placed in this third category. Included for consideration at that time, in addition to the minority group and those with PFYAs between 74.5 and 77, were some applicants with PFYAs above 77 upon whom the committee had reserved judgment, feeling that such applicants were not as promising as their PFYAs seemed to indicate.

These “close cases,” — i.e., where the applicant was neither clearly outstanding nor clearly deficient — required the most effort of the committee. In selecting the applicants from this narrow range, the committee used the process described in its Guide for Applicants, a copy of which was sent to all applicants:

We gauged the potential for outstanding performance in law school not only from the existence of high test scores and grade point averages, but also from careful analysis of recommendations, the quality of work in difficult analytical seminars, courses, and writing programs, the academic standards of the school attended by the applicant, the applicant’s graduate work (if any), and the nature of the applicant’s employment (if any), since graduation.

An applicant’s ability to make significant contributions to law school classes and the community at large was assessed from such factors as his extracurricular and community activities, employment, and general background.

We gave no preference to, but did not discriminate against, either Washington residents or women in making our determinations. An applicant’s racial or ethnic background was considered as one factor in our general attempt to convert formal credentials into realistic predictions.

Each file to be reviewed by the full committee was first assigned and read by a committee member who reported on its contents to the committee. There followed a discussion on the applicants under consideration, leading to a committee vote on the disposition of the application. Assignment of files to the committee member for initial reading was usually on a random basis. The files of Black applicants, however, were assigned to and separately read by both Professor Geoffrey Crooks and Mr. Vincent Hayes, the two committee members thought best equipped to report to the full committee on the contents of the file. Professor Crooks worked with minority applications during the summer of 1970 as director of the school’s Council on Legal Education Opportunities (CLEO) program⁴ and Mr. Hayes, a second-year Black law student, who previously served as director of the Governor’s Multi-Service Center in Seattle, a job involving considerable personnel evaluation. Applications of Chicanos, American Indians and Filipinos were reviewed by Associate Dean Robert S. Hunt for presentation to the committee.

In considering minority applicants, the committee was guided by a university-wide policy which sought to eliminate the continued effects of past segregation and discrimination against Blacks, Chicanos, American Indians and other disadvantaged racial and ethnic minority groups. At trial, the President of the University of Washington testified as to the origin of this policy:

More and more it became evident to us that just an open door, as it were, at the point of entry to the University, somehow or other seemed insufficient to deal with what was emerging as the greatest internal problem of the United States of America, a problem which obviously could not be resolved without some kind of contribution being made not only by the schools, but obviously, also, by the colleges in the University and the University of Washington, in particular, given the racial distribution of this state.

So that was the beginning of a growing awareness that just an open-door sheer equality in view of the cultural circumstances that produced something other than equality, was not enough; that some more positive contribution had to be made to the resolution of this problem in American life, and something had to be done by the University of Washington.

Thus, the university sought to achieve a reasonable representation within the student body of persons from these groups which have been historically suppressed by encouraging their enrollment within the various programs offered at the university. Policies for admission of minorities throughout the university recognized that the conventional “mechanical” credentializing system does not always produce good indicators of the full potential of such culturally separated or deprived individuals, and that to rely solely on such formal credentials could well result in unfairly denying to qualified minority persons the chance to pursue the educational opportunities available at the university.

The law school sought to carry forward this university policy in its admission program, not only to obtain a reasonable representation from minorities within its classes, but to increase participation within the legal profession by persons from racial and ethnic groups which have been historically denied access to the profession and which, consequently, are grossly underrepresented within the legal system. In doing so, the admissions committee followed certain procedures which are the crux of plaintiff’s claimed denial of equal protection of the laws.

First, in reviewing the files of minority applicants, the committee attached less weight to the PFYA in making a total judgmental evaluation as to the relative ability of the particular applicant to succeed in law school. Also, the chairman testified that although the same standard was applied to all applicants (i.e., the relative probability of the individual succeeding in law school), minority applicants were directly compared to one another, but were not compared to applicants outside of the minority group. The committee sought to identify, within the minority category, those persons who had the highest probability of succeeding in law school. Thus, the law school included within its admitted group minority applicants whose PFYAs were lower than those of some other applicants, but whose entire record showed the committee that they were capable of successfully completing the law school program.⁵

As a result of this process, the committee admitted a grdup of minority applicants, placed a group of such applicants on a waiting list, and rejected other minority applications. The dean of the law school testified that the law school has no fixed admissions quota for minority students, but that the committee sought a reasonable representation of such groups in the law school. He added that the law school has accepted no unqualified minority applicants, but only those whose records indicated that they were capable of successfully completing the law school program.

The admissions committee sent letters of acceptance to over 200 applicants. Normal attrition among those invited was expected to reduce this group to produce a class of about 150. Against the possibility of unusually high attrition among the group of accepted applicants, the committee placed approximately 155 additional applicants on a waiting list. The waiting list was ranked in approximate quartiles, with 46 applicants in the highest quartile, 38 applicants in the second quartile, 36 applicants in the third quartile, and 33 applicants in the fourth or lowest quartile. The remaining applicants — those receiving neither offers of acceptance nor waiting list assignments — received letters of denial. Plaintiff received an invitation to be placed on the waiting list and he was ranked in the fourth or lowest quartile. On July 21, 1971, the rate of attrition from the admitted applicants appearing to be within normal ranges, the committee decided to send letters of denial to those applicants in the third and fourth quartiles on the waiting list. Plaintiff was thus notified on August 2, 1971, that he was neither admitted nor any longer on the waiting list. As of August 1, 1971, 275 students were admitted to the freshman law school class and 55 students remained on the waiting list, making a total of 330 students.

Out of the 275 students given notice of admission, 127 were nonresidents of the state of Washington. Out of the 55 on the waiting list, 23 were nonresidents of the state of Washington. Thus, of the 330 applicants admitted or waiting, 180 were residents of the state of Washington. Ultimately, 32 nonresidents (21.6 percent of the entering class) actually enrolled in the first-year class.

Because of the judgmental factors in the admissions process, as outlined, the ultimate determination of applicants to whom admission was offered did not follow exactly the relative ranking of PFYAs. Of those invited, 74 had lower PFYAs than plaintiff; 36 of these were minority applicants, 22 were returning from military service, and 16 were applicants judged by the committee as deserving invitations on the basis of other information contained in their files. Twenty-nine applicants with higher PFYAs than plaintiff’s, were denied admission. Of the 36 minority group students invited 18 actually enrolled in the first-year class.

The trial court found that some minority applicants with college grades and LSAT scores so low that had they been of the white race their applications would have been summarily denied, were given invitations for admission; that some such students were admitted instead of plaintiff; that since no more than 150' applicants were to be admitted to the law school, the admission of less qualified students resulted in a denial of places to those better qualified; and that plaintiff had better “qualifications” than many of the students admitted by the committee. The trial court also found that plaintiff was and is fully qualified and capable of satisfactorily ¡attending the law school.

The trial court concluded that there is no constitutional restriction upon admitting nonresidential students; and no laws or regulations provide preference to residential students over nonresidential students for admission to the University of Washington School of Law; that, in denying plaintiff admission to the law school, the University of Washington discriminated against him and did not accord to him equal protection of the laws as guaranteed by the fourteenth amendment to the United States Constitution; and therefore, that plaintiff should be ¡admitted to the law school for the class of 1974, beginning September 22, 1971.⁶

I.

We first consider defendants’ threshold contention that the record establishes the law school would not have been able to accept him even if no minority students had been admitted; and, therefore, plaintiff has no standing to question the university’s minorities admissions policy. Defendants argue that the committee’s evaluation of plaintiff’s qualifications led it to place him in the fourth, or lowest, quartile of the waiting list. This low ranking was wholly without regard to the school’s minority admissions policy, but was based on a comparison of plaintiff’s qualifications with those of other nonminority applicants. Thus, contend defendants, even if the minority group students had not been admitted, all of the seats they occupied would probably have been filled by others higher than plaintiff on the waiting list.

There is no way of knowing that plaintiff would have been admitted to the law school, even had no minority student been admitted. We do not agree, however, that for this reason plaintiff lacks standing to assert the constitutional questions presented herein. As noted by the United States Supreme Court in Flast v. Cohen, 392 U.S. 83, 99, 20 L. Ed. 2d 947, 88 S. Ct. 1942 (1968):

The “gist of the question of standing” is whether the party seeking relief has “alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions.” Baker v. Carr, 369 U.S. 186, 204 (1962).

We have heretofore made similar statements. In State ex rel. Hays v. Wilson, 17 Wn.2d 670, 137 P.2d 10(1943), we stated that one seeking relief must show a clear legal or equitable right and a well-grounded fear of immediate invasion of that right. Further, in State v. Human Relations Research Foundation, 64 Wn.2d 262, 269, 391 P.2d 51 (1964), we stated:

A litigant who challenges the constitutionality of a statute must claim infringement of an interest peculiar and personal to himself, as distinguished from a cause of dissatisfaction with the general framework of the statute.

Plaintiff’s interest in this litigation clearly constitutes the requisite “personal stake in the outcome of the controversy” necessary to request an adjudication of the merits of this case.⁷

II.

The essence of plaintiff’s Fourteenth Amendment argument is that the law school violated his right to equal protection of the laws by denying him admission, yet accepting certain minority applicants with lower PFYAs than plaintiff who, but for their minority status, would not have been admitted.⁸

To answer this contention we consider three implicit, subordinate questions: (A) whether race can ever be considered as one factor in the admissions policy of a state law school or whether racial classifications are per se unconstitutional because the equal protection of the laws requires that law school admissions be “color-blind”; (B) if consideration of race is not per se unconstitutional, what is the appropriate standard of review to be applied in determining the constitutionality of such a classification; and (C) when the appropriate standard is applied does the specific minority admissions policy employed by the law school pass constitutional muster?⁹

A.

Relying solely on Brown v. Board of Educ., 347 U.S. 483, 98 L. Ed. 873, 74 S. Ct. 686, 38 A.L.R.2d 1180 (1954), the trial court held that a state law school can never consider race as one criterion in its selection of first-year students. In holding that all such racial classifications are per se unconstitutional, the trial court stated in its oral opinion:

Since no more than 150 applicants were to be admitted the admission of less qualified resulted in a denial of places to those otherwise qualified. The plaintiff and others in this group have not, in my opinion, been accorded equal protection of the laws guaranteed by the Fourteenth Amendment.

In 1954 the United States Supreme Court decided that public education must be equally available to all regardless of race.

After that decision the Fourteenth Amendment could no longer be stretched to accommodate the needs of any race. Policies of discrimination will inevitably lead to reprisals. In my opinion the only safe rule is to treat all races alike, and I feel that is what is required under the equal protection clause.

In Brown v. Board of Educ., supra, the Supreme Court addressed a question of primary importance at page 493:

Does segregation of children in public schools solely on the basis of race, even though the physical facilities and other “tangible” factors may be equal, deprive the children of the minority group of equal educational opportunities? We believe that it does.

The court in Brown held the equal protection clause of the Fourteenth Amendment prohibits state law from requiring the operation of racially segregated, dual school systems of public education and requires that the system be converted into a unitary, nonracially segregated system. In so holding, the court noted that segregation inevitably stigmatizes Black children:

To separate them from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone.

Brown v. Board of Educ., supra at 494. Moreover, “The impact is greater when it has the sanction of the law; for the policy of separating the races is usually interpreted as; denoting the inferiority of the negro group.” Brown at 494.

Brown did not hold that all racial classifications are per se unconstitutional; rather, it held that invidious racial classifications — i.e., those that stigmatize a racial group with the stamp of inferiority — are unconstitutional. Even viewed in a light most favorable to plaintiff, the “preferential” minority admissions policy administered by the law school is clearly not a form of invidious discrimination. The goal of this policy is not to separate the races, but to bring them together. And, as has been observed,

Preferential admissions do not represent a covert attempt to stigmatize the majority race as inferior; nor is it reasonable to expect that a possible effect of the extension of educational preferences to certain disadvantaged racial minorities will be to stigmatize whites.

O’Neil, Preferential Admissions: Equalizing the Access of Minority Groups to Higher Education, 80 Yale L.J. 699, 713 (1971).

While Brown v. Board of Educ., supra, certainly provides a starting point for our analysis of the instant case, we do not agree with the trial court that Brown is dispositive here. Subsequent decisions of the United States Supreme Court have made it clear that in some circumstances a racial criterion may be used — and indeed in some circumstances must be used — by public educational institutions in bringing about racial balance. School systems which were formerly segregated de jure¹⁰ now have an affirmative duty to remedy racial imbalance.

In Green v. County School Bd., 391 U.S. 430, 20 L. Ed. 2d 716, 88 S. Ct. 1689 (1968), the Supreme Court considered a school board’s adoption of a “freedom-of-choice” plan which allowed a student to choose his own public school. No student was assigned or admitted to school on the basis of race. In holding that, on the facts presented, the plan did not satisfy the board’s duty to create, a unitary, nonracial system, the court stated at pages 437-40:

In the context of the state-imposed segregated pattern of long standing, the fact that in 1965 the Board opened the doors of the former “white” school to Negro children and of the “Negro” school to white children merely begins, not ends, our inquiry whether the Board has taken steps adequate to abolish its dual, segregated system.

. . . The burden on a school board today is to come forward with a plan that promises realistically to work, and promises realistically to work now.

As Judge Sobeloff has put it,

“ ‘Freedom of choice’ is not a sacred talisman; it is only a means to a constitutionally required end — the abolition of the system of segregation and its effects. If the means prove effective, it is acceptable, but if it fails to' undo segregation, other means must be used to achieve this end. The school officials have the continuing ’duty to take whatever action may be necessary to create a ‘unitary, nonracial system.’ ” Bowman v. County School Board, 382 F.2d 326, 333 (C. A. 4th Cir. 1967) (concurring opinion).

Pursuing this principle further, the Supreme Court in Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 16, 28 L. Ed. 2d 554, 91 S. Ct. 1267 (1971), unanimously held that school authorities, in seeking to achieve a -unitary, nonracial system of public education, need not be “colorblind”, but may consider race as a valid criterion when considering admissions and producing a student body:

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 for the district as a whole. To do this as an educational policy is within the broad discretionary powers of school authorities; absent a finding of a constitutional violation, however, that would not be within the authority of a federal court.

The Supreme Court then approved the district court’s opinion requiring the school authorities to consider race in determining the composition of individual schools:

As we said in Green, a school authority’s remedial plan or a district court’s remedial decree is to be judged by its effectiveness. Awareness of the racial composition of the whole school system is likely to be a useful starting point in shaping a remedy to correct past constitutional violations.

Swann v. Charlotte-Mecklenburg Bd. of Educ., supra at 25.

Thus, the constitution is color conscious to prevent the perpetuation of discrimination and to undo the effécts of past segregation. In holding invalid North Carolina’s anti-bussing law, which flatly forbade assignment of any student on account of race or for the purpose of creating a racial balance or ratio in the schools and which prohibited bussing for such purposes, the court stated:

[T]he statute exploits an apparently neutral form to control school assignment plans by directing that they be “color blind”; that requirement, against the background of segregation, would render illusory the promise of Brown v. Board of Education, 347 U.S. 483 (1954). Just as the race of students must be considered in determining whether a constitutional violation has occurred, so also must race be considered in formulating a remedy.

North Carolina Bd. of Educ. v. Swann, 402 U.S. 43, 45, 28 L. Ed. 2d 586, 91 S. Ct. 1284 (1971). Accord, United States v. Jefferson County Bd. of Educ., 372 F.2d 836 (5th Cir. 1966), aff’d en banc, 380 F.2d 385 (5th Cir. 1967), cert. denied sub nom., Board of Educ. v. United States, 389 U.S. 840, 19 L. Ed. 2d 104, 88 S. Ct. 77 (1967).

Clearly, consideration of race by school authorities does not violate the Fourteenth Amendment where the purpose is to bring together, rather than separate, the races. The “minority” admissions policy of the law school, aimed at insuring a reasonable representation of minority persons in the student body, is not invidious. Consideration of race is permissible to carry out the mandate of Brown, and, as noted, has been required in some circumstances.

However, plaintiff contends that cases such as Green v. County School Bd., supra, and Swann v. Charlotte-Mecklenburg Bd. of Educ., supra, are inapposite, here since none of the students there involved were deprived of an education by the plan to achieve a unitary school system. It is questionable whether defendants deprived plaintiff of a legal education by denying him admission.¹¹ But even accepting this contention, arguendo, the denial of a “benefit” on the basis of race is not necessarily a per se violation of the Fourteenth Amendment, if the racial classification is used in a compensatory way to promote integration.

For example, in Porcelli v. Titus, 431 F.2d 1254 (3d Cir. 1970), cert. denied, 402 U.S. 944, 29 L. Ed. 2d 112, 91 S. Ct. 1612 (1971), a group of white teachers alleged that the school board had bypassed them in abolishing the regular promotion schedule and procedure for selecting principals and vice-principals, and had given priority to Black candidates in order to increase the integration of the system’s faculty. In upholding the board’s judgment to suspend the ordinary promotion system upon racial considerations, the court stated:

State action based partly on considerations of color, when color is not used per se, and in furtherance of a proper governmental objective, is not necessarily a violation of the Fourteenth Amendment.

Porcelli v. Titus, supra at 1257.

Similarly, the eighth circuit concluded that in order to eradicate the effects of past discrimination,

[I] t would be in order for the district court to mandate that one out of every three persons hired by the [Minneapolis] Fire Department would be a minority individual who qualifies until at least 20 minority persons have been so hired.

Carter v. Gallagher, 452 F.2d 315, 331 (8th Cir. 1971), cert. denied, 406 U.S. 950 (1972). Thus, the court ordered the department to hire minority applicants, although in doing so a more qualified nonminority applicant might be bypassed. Cf. Contractors Ass’n v. Secretary of Labor, 442 F.2d 159 (3d Cir. 1971), cert. denied, 404 U.S. 854 (1971).

We conclude that the consideration of race as a factor in the admissions policy of a state law school is not a per se violation of the equal protection clause of the Fourteenth Amendment. We proceed, therefore, to the question of what standard of review is appropriate to determine the constitutionality of such a classification.

B.

Generally, when reviewing a state-created classification alleged to be in violation of the equal protection clause of the Fourteenth Amendment, the question is whether the classification is reasonably related to a legitimate public purpose. And, in applying this “rational basis” test “[A] discrimination will not be set aside if any state of facts reasonably may be conceived to justify it.” McGowan v. Maryland, 366 U.S. 420, 426, 6 L. Ed. 2d 393, 81 S. Ct. 1101 (1961).

However, where the classification is based upon race, a heavier burden of justification is imposed upon the state. In overturning Virginia’s antimiscegenation law, the Supreme Court explained this stricter standard of review:

The clear and central purpose of the Fourteenth Amendment was to eliminate all official state sources of invidious racial discrimination in the States. [Citations omitted.]

. . . At the very least, the Equal Protection Clause demands that racial classifications, especially suspect in criminal statutes, be subjected to the “most rigid scrutiny,” [citation omitted] and, if they are ever to be upheld, they must be shown to be necessary to the accomplishment of some permissible state objective, independent of the racial discrimination which it was the object of the Fourteenth Amendment to eliminate. . . .

There is patently no legitimate overriding purpose independent of invidious racial discrimination which justifies this classification.

Loving v. Virginia, 388 U.S. 1, 10-11, 18 L. Ed. 2d 1010, 87 S. Ct. 1817 (1967). Accord, McLaughlin v. Florida, 379 U.S. 184, 13 L. Ed. 2d 222, 85 S. Ct. 283 (1964); Hunter v. Erickson, 393 U.S. 385, 21 L. Ed. 2d 616, 89 S. Ct. 557 (1969).

It has been suggested that the less strict “rational basis” test should be applied to the consideration of race here, since the racial distinction is being used to redress the effects of past discrimination; thus, because the persons normally stigmatized by racial classifications are being benefited, the action complained of should be considered “benign” and reviewed under the more permissive standard. However, the minority admissions policy is certainly not benign with respect to nonminority students who are displaced by it. See O’Neil, Preferential Admissions: Equalizing the Access of Minority Groups to Higher Education, 80 Yale L.J. 699,710 (1971).

The burden is upon the law school to show that its consideration of race in admitting students is necessary to the accomplishment of a compelling state interest.

C.

■[7] It can hardly be gainsaid that the minorities have been, and are, grossly underrepresented in the law schools —and consequently in the legal profession — of this state and this nation.¹² We believe the state has an overriding interest in promoting integration in public education. In light of the serious underrepresentation of minority groups in the law schools, and considering that minority groups participate on an equal basis in the tax support of the law school, we find the state interest in eliminating racial imbalance within public legal education to be compelling.

Plaintiff contends, however, that any discrimination in this case has been de facto, rather than de jure. Thus, reasons plaintiff, since the law school itself has not actively discriminated against minority applicants, it may not attempt to remedy racial imbalance in the law school student body, and, consequently, throughout the legal profession. We disagree.

In State ex rel. Citizens Against Mandatory Bussing v. Brooks, 80 Wn.2d 121, 128, 492 P.2d 536 (1972), we held that whether the nature of segregation is de jure or de facto is of no consequence where a voluntary plan of eliminating racial imbalance is adopted by school officials:

Reason impels the conclusion that, if the constitution supports court directed mandatory bussing to desegregate schools in a system which is dual “de jure,” then such bussing is within the appropriate exercise of the discretion of school authorities in a system which is dual “de facto.”

This conclusion is supported by the reasoning of the district court in Barksdale v. Springfield School Comm., 237 F. Supp. 543, 546 (D. Mass. 1965), vacated on other grounds, 348 F.2d 261 (1st Cir. 1965):

It is neither just nor sensible to proscribe segregation having its basis in affirmative state action while at the same time failing to provide a remedy for segregation which grows out of discrimination in housing, or other economic or social factors.

Significantly, this case does not present for review a court order imposing a program of desegregation. Rather, the minority admissions policy is a voluntary plan initiated by school authorities. Therefore, the question before us is not whether the Fourteenth Amendment requires the law school to take affirmative action to eliminate the continuing effects of de facto segregation; the question is whether the constitution permits the law school to remedy racial imbalance through its minority admissions policy. In refusing to enjoin school officials from implementing a plan to eradicate de facto school segregation by the use of explicit racial classifications, the second circuit observed: “That there may be no constitutional duty to act to undo de facto segregation, however, does not mean that such action is unconstitutional.” Offermann v. Nitkowski, 378 F.2d 22, 24 (2d Cir. 1967).

The de jure-de facto distinction is not controlling in determining the constitutionality of the minority admissions policy voluntarily adopted by the law school.¹³ Further, we see no reason why the state interest in eradicating the continuing effects of past racial discrimination is less merely because the law school itself may have previously been neutral in the matter.

The state also has an overriding interest in providing all law students with a legal education that will adequately prepare them to deal with the societal problems which will confront them upon graduation. As the Supreme Court has observed, this cannot be done through books alone:

[A] Ithough the law is a highly learned profession, we are well aware that it is an intensely practical one. 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. New students and no one who has practiced law would choose to study in an academic vacuum, removed from the interplay of ideas and the exchange of views with which the law is concerned.

Sweatt v. Painter, 339 U.S. 629, 634, 94 L. Ed. 1114, 70 S. Ct. 848 (1950).

The legal profession plays a critical role in the policy making sector of our society, whether decisions be public or private, state or local. That lawyers, in making and influencing these decisions, should be cognizant of the views, needs and demands of all segments of society is a principle beyond dispute. The educational interest of the state in producing a racially balanced student body at the law school is compelling.

Finally, the shortage of minority attorneys — and, consequently, minority prosecutors, judges and public officials —constitutes an undeniably compelling state interest.¹⁴ If minorities are to live within the rule of law, they must enjoy equal representation within our legal system.

Once a constitutionally valid state interest has been established, it remains for the state to show the requisite connection between the racial classification employed and that interest. The consideration of race in the law school admissions policy meets the test of necessity here because racial imbalance in the law school and the legal profession is the evil to be corrected, and it can only be corrected by providing legal education to those minority groups which have been previously deprived.

It has been suggested that the minority admissions policy is not necessary, since the same objective could be accomplished by improving the elementary and secondary education of minority students to a point where they could secure equal representation in law schools through direct competition with nonminority applicants on the basis of the same academic criteria. This would be highly desirable, but 18 years have passed since the decision in Brown v. Board of Educ., 347 U.S. 483, 98 L. Ed. 873, 74 S. Ct. 686, 38 A.L.R.2d 1180, and minority groups are still grossly underrepresented in law schools. If the law school is forbidden from taking affirmative action, this underrepresentation may be perpetuated indefinitely. No less restrictive means would serve the governmental interest here; we believe the minority admissions policy of the law school to be the only feasible “plan that promises realistically to work, and promises realistically to work now.” Green v. County School Bd., 391 U.S. 430, 20 L. Ed. 2d 716, 88 S. Ct. 1689 (1968) at 439.

We conclude that defendants have shown the necessity of the racial classification herein to the accomplishment of an overriding state interest, and have thus sustained the heavy burden imposed upon them under the equal protection provision of the Fourteenth Amendment.

There remains a further question as to the scope of the classification. A validly drawn classification is one “which includes all [and only those] persons who are similarly situated with respect to the purpose of the law.” Tussman & tenBroek, The Equal Protection of the Laws, 37 Calif. L. Rev. 341, 346 (1949). The classification used by defendants does not include all racial minorities, but only four (Blacks, Chicanos, Indians and Philippine Americans). However, the purpose of the racial classification here is to give special consideration to those racial minority groups which are underrepresented in the law schools and lega] profession, and which cannot secure proportionate representation if strictly subjected to the standardized mathematical criteria for admission to the law school.

In selecting minority groups for special consideration, the law school sought to identify those groups most in need of help. The chairman of the admissions committee testified that Asian American, e.g., were not treated as minority applicants for admissions purposes since a significant number could be admitted on the same basis as general applicants. In light of the purpose of the minority admissions policy, the racial classification need not include all racial minority groups.¹⁵ The state may identify and correct the most serious examples of racial imbalance, even though in so doing it does not provide an immediate solution to the entire problem of equal representation within the legal system.

We hold that the minority admissions policy of the law school, and the denial by the law school of admission to plaintiff, violate neither the equal protection clause of the fourteenth amendment to the United States Constitution nor article 1, section 12 of the Washington State Constitution.¹⁶

III.

Apart from his equal protection argument, plaintiff contends that the procedures employed by the law school in selecting first-year students constitute arbitrary and capricious administrative action, and that the law school’s denial of admission to plaintiff pursuant to these procedures must be set aside.

We recently reaffirmed our long-standing test of arbitrary and capricious action:

Arbitrary and capricious action of administrative bodies means willful and unreasoning action, without consideration and in disregard of facts or circumstances. Where there is room for two opinions, action is not arbitrary or capricious when exercised honestly and upon due consideration, even though it may be believed that an erroneous conclusion has been reached.

DuPont-Fort Lewis School Dist. 7 v. Bruno, 79 Wn.2d 736, 739, 489 P.2d 171 (1971). Plaintiff must carry the burden of proof on this issue. State ex rel. Longview Fire Fighters, Local 828 v. Longview, 65 Wn.2d 568, 572, 399 P.2d 1 (1965).

In determining whether the denial of plaintiff’s application to the law school constitutes arbitrary and capricious action, we turn first to the ultimate admissions goals of the law school, pursuant to which the policy and procedures of the admissions committee have been formulated. In light of the tremendous increase in the number of qualified applicants, the law school sought to identify applicants with the potential for outstanding performance in the law school, and then “to select applicants for admission from that group on the basis of their ability to make significant contributions to law school classes and to the community at large.” The guide for applicants also stated that the criteria to be applied by the law school in the selection process would not be limited to numerical indicators such as test scores and grade point averages, but would also include several other factors requiring the exercise of judgmental evaluation. Among these other factors were recommendations, the quality of work in difficult analytical seminars and writing programs, the academic standards of the applicant’s undergraduate school, and the nature of the applicant’s graduate work or employment (if any) since graduation. The guide added that race would be considered as one factor in the law school’s attempt to convert formal credentials into realistic predictions.

Plaintiff first contends that no standards were applied by the committee in its evaluation of these criteria for admission. However, the trial court specifically refused to make a finding of fact proposed by plaintiff that:

[T]he Admissions Committee selected and denied students for admission to the University of Washington School of Law with no set standards or procedures.

We particularly note that while race was a major factor, it was not the only factor considered by the committee in reviewing minority applications. No minority quota was established; rather, a reasonable representation of such groups in the law school was sought. Also, the dean of the law school testified (and the trial court did not find otherwise) that only “qualified” minority applicants were admitted — i.e., minority persons, whose entire record showed the committee that they were capable of successfully completing the law school program. Many minority applicants were denied admission. The trial court did find that some minority students admitted would have been summarily denied had they been white, since their predicted first-year averages were relatively low. Also, the court found that some minority students were admitted with “lower qualifications” than plaintiff. Thus, the record overwhelmingly indicates that the admissions committee did employ predetermined standards and procedures in selecting students.

Plaintiff further contends that the committee failed to consider all applicants on the same basis, but instead judged minority applicants by different standards. In reviewing the files of applicants, the committee did ask the same fundamental question in every case: what is the relative probability of the individual succeeding in law school and making significant contributions to law school classes and the community at large? However, minority applicants were directly compared to one another under this test, but were not compared to nonminority applicants.

The question thus raised is whether, in selecting those applicants most likely to make significant contributions to law school classes and to the community at large, it is arbitrary and capricious for the admissions committee to consider race as a factor in admitting qualified minority applicants whose strict academic credentials yield a lower PFYA than that of some nonminority applicants who are not admitted. The answer depends on whether race is relevant to the goals of the law school’s admissions program as stated in the guide for applicants.

The thrust of plaintiff’s objection here is that the action of the committee was arbitrary because, in admitting students, it deviated from the relative numerical ranking provided by the PFYAs. Thus, argues plaintiff, by taking subjective (i.e., nonmathematical) factors into consideration, and weighting them differently for different applicants, the committee arbitrarily denied him admission. We do not agree that the exercise of judgment in evaluating an applicant’s file constitutes arbitrary and capricious action. Nor do we find an abuse of that judgment here.

The president of the university testified that the decision to consider race in interpreting a minority applicant’s numerical grade averages and test scores was reached because of the opinion within the university that such standardized indicators inherently exclude a disproportionate number of minority applicants.

[We] recognize' the conventional standards that have been used with regard to most students are even less reliable in dealing with students who come from culturally deprived backgrounds. I do not think this means reducing the standards. It admits that the conventional standards are not good indicators and that something more is needed.

. . . by paying more attention to evidence obtained by the background of the individual and from all kinds of evidence that could be adduced . . . the judgment could be made as to whether or not this particular individual seemed to have greater potential than would be indicated if they were to rely entirely on the mechanical standards.

“Basic intelligence must have the means of articulation to manifest itself fairly in a testing process.” Griggs v. Duke Power Co., 401 U.S. 424, 430, 28 L. Ed. 2d 158, 91 S. Ct. 849 (1971). We express no opinion as to whether the LSAT bears a cultural bias which renders the test less reliable as a predictor of law school performance for minority students than for others. But this is certainly a factor which the law school may consider in its discretion. See Hobson v. Hansen, 269 F. Supp. 401, 484 (D.D.C. 1967); O’Neil, Preferential Admissions: Equalizing Access to Legal Education, 1970 U. Tol. L. Rev. 281, 303 (1970). It would be unnecessary, of course, for the law school to consider race in interpreting the standardized numerical indicators for nonminority students, because the alleged bias operates in favor of those applicants.

The fallacy of plaintiff’s argument is the assumption that, but for the special consideration given minority applicants, selection decisions by the committee would have been based solely upon objective, measureable mathematical projections of the academic performance of applicants. Actually, although the PFYA was a very important factor, it was not the sole determinative factor for any group of students. Rather, the committee utilized the PFYA as a starting point in making its judgment as to the fundamental criterion for admission: the applicant’s potential for contributing to law school classes and to the community. That the committee considered more than the standardized numerical indicators in reviewing the files of all students is indicated by the fact that 16 nonminority, general applicants were admitted with lower PFYAs than plaintiff.

Moreover, we question tne assumption that a minority applicant is ipso facto “less qualified” than a nonminority applicant who has a higher predicted first-year average. When judging “qualifications,” the primary criterion of the law school in admitting students must be remembered. In light of the gross underrepresentation of minorities in the legal system, can it be said with such certainty as to leave no room for differing opinions that a white applicant with a higher PFYA will make a greater contribution to the law school and the community? We think not. While the probability of applicant achieving high grades in his first year of law school is an important criterion for admission, it is not the sole permissible criterion.

Where the criteria for admissions are not arbitrary and capricious, we will not vitiate the judgment of the admissions committee unless a constitutional violation is shown. Considering the debatable nature of the criteria, we do not find the consideration of race in the admission of those minority applicants who indicate competence to successfully complete the law school program to be arbitrary and capricious. Law school admissions need not become a game of numbers; the process should remain sensitive and flexible, with room for informed judgment in interpreting mechanical indicators. The committee may consider the racial or ethnic background of an applicant when interpreting his standardized grades and test scores.

As a final point, plaintiff argues that the consideration of race here was arbitrary because no inquiry was made into the background of each minority applicant to make certain that the individual was in fact educationally, economically and culturally deprived. However, the mere fact that a minority applicant comes from a relatively more affluent home does not mean that he has not been subjected to psychological harm through discrimination. See Hobson v. Hansen, supra at 482. Likewise, every minority lawyer is critically needed, whether he be rich or poor. A showing of actual deprivation is unnecessary for the accomplishment of the compelling state interests here.¹⁷

Plaintiff has failed to show that the policy and procedures of the law school in denying him admission were so unreasoned and in disregard of the facts and circumstances as to constitute arbitrary and capricious action.

IV.

Plaintiff also contends that article 9, section 1 of the Washington State Constitution¹⁸ and certain of the statutes governing the University of Washington¹⁹ require preference to be given Washington residents over nonresidents in admission to the school of law, and that in failing to give this preference to plaintiff, the law school wrongfully denied him admission. The trial court ruled against plaintiff’s contention on this issue. We agree with the trial court.

Article 9 does not apply to the University of Washington, Litchman v. Shannon, 90 Wash. 186, 155 P. 783 (1916), but is addressed only to the “common schools.” (Article 9, section 2.) See, e.g., Edmonds School Dist. 15 v. Mountlake Terrace, 77 Wn.2d 609, 611, 465 P.2d 177 (1970); Newman v. Schlarb, 184 Wash. 147, 152-54, 50 P.2d 36 (1935); State ex rel. School Dist. 37 v. Clark County, 177 Wash. 314, 321, 31 P.2d 897 (1934); Litchman v. Shannon, supra at 191. Thus, article 9 does not call for preferential admission treatment of residents: over nonresidents at the law school.

Nor do the statutory provisions cited by plaintiff dictate the contrary. Although these provisions differentiate residents from nonresidents for various purposes (such as qualifying for state aid, RCW 28B.10.800) they cannot be read for the sweeping purpose desired by plaintiff. The only preferential treatment clearly stated is in RCW 28B.15.200, in which the legislature has prescribed a higher fee for nonresidents than residents for enrollment at the University of Washington. This fee undoubtedly affects the ratio of nonresidents to residents actually enrolled within the law school.²⁰ However, this fee provision is the only statutory indication of preference; any further limitations upon the admission of nonresidents to the law school are controlled by the Board of Regents, who shall “Establish entrance requirements for students seeking admission to the university.” RCW 28B.20.130 (3). We hold that the university is not required to give admission preference to residents of the state of Washington.

The judgment of the trial court is reversed.

The foregoing opinion was prepared by Justice Marshall A. Neill while a member of this court. It is adopted by the undersigned as the opinion of the court.

Finley, Hamilton, Stafford, Wright, and Utter, JJ., and Tuttle, J. Pro Tern.

1 The Law School Admissions Test yields two scores for each candidate, a general law aptitude score and a writing ability score.

2 Plaintiff took the Law School Admissions Test on three different occasions: August 1969, November 1969 and December 1970.

3 The chairman of the admissions committee testified that Asian Americans, e.g., were not treated as “minority” applicants for admissions purposes, since a significant number could be admitted on the same basis as general applicants.

As used herein, the term “minority” refers to and includes only Black Americans, Chicano Americans, American Indians and Philippine Americans.

4 A federally (OEO) funded program, sponsored by the American Bar Association, the American Association of Law Schools, the National Bar Association and the Law School Admission Council, which provides summer training programs and financial assistance to disadvantaged college students seeking admission to law school.

5 For example, many of the minority group applicants were first screened through special compensatory summer programs, operated primarily by CLEO.

6 At time of oral argument in this court it was stated that plaintiff had actually been admitted to the law school in September, 1971, and was still in attendance. Due to the conditions under which plaintiff was admitted and the great public interest in the continuing issues raised by this appeal, we do not consider the case to be moot.

7 Ireaching this conclusion we have also taken into consideration the university’s urgent need ior certainty in planning and administering its admissions policy.

8 Our review is specifically limited to a consideration of the alleged constitutional infirmities in the law school’s admissions policy and procedures. Beyond question, it would be inappropriate for this court to determine the actual composition of the first-year class through an independent evaluation of each applicant’s file, substituting our criteria and judgment for those of the admissions committee. In regard to the scope of judicial review in this area, the United States Supreme Court has stated that:

In seeking to define even in broad and general terms how far this remedial power extends it is important to remember that judicial powers may be exercised only on the basis of a constitutional violation. Remedial judicial authority does not put judges automatically in the shoes of school authorities whose powers are plenary. Judicial authority enters only when local authority defaults.

Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 16, 28 L. Ed. 2d 554, 91 S. Ct. 1267 (1971).

9 Considering the statutory delegation of power to establish entrance requirements for students to the university, no serious question is raised as to whether the action of the law school here complained of constitutes “state action” within the meaning of the Fourteenth Amendment.

10 “De jure” segregation generally refers to “segregation directly intended or mandated by law or otherwise issuing from an official racial classification,” Hobson v. Hansen, 269 F. Supp. 401, 492 (D.D.C. 1967), aff’d sub nom. Smuck v. Hobson, 408 F.2d 175 (D.C. Cir. 1969), or, in other words, to segregation which has, or had, the sanction of law. In the context of public education the United States Supreme Court has expanded the meaning of the term “de jure segregation”

[T]o comprehend any situation in which the activities of school authorities have had a racially discriminatory impact contributing to the establishment or continuation [of racial imbalance] . . .

State ex rel. Citizens Against Mandatory Bussing v. Brooks, 80 Wn.2d 121, 130, 492 P.2d 536 (1972).

Where the segregation is inadvertent and without the assistance or collusion of school authorities, and is not caused by any “state action”, but rather by social, economic and other determinants, it will be referred to as “de facto” herein. See Fiss, Racial Imbalance in the Public Schools: the Constitutional Concepts, 78 Harv. L. Rev. 564. 565-66, 584, 598 (1965).

11 Plaintiff alleged in his complaint that he had previously applied to and been accepted by the law school at each of the following universities: University of Oregon, University of Idaho, Gonzaga University and Willamette University.

12 Report of Black Lawyers and Judges in the United States, 1960-70, 91st Cong., 2d Sess., 116 Cong. Rec. 30786 (1970); U.S. Dep’t of Commerce, Bureau of Census, General Population Characteristics of the State of Washington, Tables 17 and 18 (1970); Office of Program Planning and Fiscal Management of the State of Washington, Pocket Data Book (1971); Rosen, Equalizing Access to Legal Education: Special Programs for Law Students Who Are Not Admissible by Traditional Criteria, 1970 U. Tol. L. Rev. 321 (1970); Edwards, A Neta Role for the Black Law Graduates — A Reality or an Illusion? 69 Mich. L. Rev. 1407 (1971); Gelhorn, The Law Schools and the Negro, 1968 Duke L.J. 1069 (1968); Reynoso, Laraza, the Law and the Law Schools, 1970 U. Tol. L. Rev. 809 (1970); Toles, Black Population and Black Judges, 17 Student Lawyer J. 20 (Feb. 1972); O’Neil, Preferential Admissions: Equalizing Access to Legal Education, 1970 U. Tol. L. Rev. 281 (1970); Atwood, Survey of Black Law Student Enrollment, 16 Student Lawyer J. 18 (June 1971); Comment, Selected Bibliography: Minority Group Participation in the Legal Profession, 1970 U. Tol. L. Rev. 935 (1970).

In relying on statistical evidence to establish the underrepre-sentation of minority groups in the legal profession, defendants are supported by ample precedent. See, e.g., Hobson v. Hansen, supra note 10.

13 We do not, therefore, reach the question of whether there is an inherent cultural bias in the Law School Admission Test, or in the methods of teaching and testing employed by the law school, which perpetuates racial imbalance to such an extent as to constitute de jure segregation.

14 See O’Neil, Preferential Admissions: Equalizing Access to Legal Education, supra note 12.

15 See O’Neil, Preferential Admissions: Equalizing the Access of Minority Groups to Higher Education, 80 Yale L.J. 699, 750 (1971).

16 As we have held, the equal protection clause of U.S. Const, amend. 14, and the privileges and immunities clause of Const, art. 1, § 12, have the same import, and we apply them as one. Markham Adv. Co. v. State, 73 Wn.2d 405, 427, 439 P.2d 248 (1968), appeal dismissed, 393 U.S. 316 (1969).

17 See generally O’Neil, Preferential Admissions: Equalizing the Access of Minority Groups to Higher Education, supra at 751.

18 Art. 9 “§ 1 Preamble. It is the paramount duty of the state to make ample provision for the education of all children residing within its borders . . .”

19 RCW 28B.20.020, 28B.15.011, et seq., and 28B.10.800.

20 Out of the 275 students admitted to the law school’s first-year class for the 1971-72 school year, 127 were nonresidents. However, only 32 nonresidents (21.6 percent of the entering class) actually enrolled. As the trial court noted, this high attrition rate (74.8 percent) tends to indicate that the substantially higher fees for nonresidents significantly affect the percentage of nonresident students in the law school.