The Supreme Court refused 6 to 3 yesterday to consider a plea by the son of an immigrant Italian janitor that he has a right to sue a law school for barring him from its special minorities-admissions program on account of his race or ethnic heritage.
Philip F. DiLeo said he had a culturally and educationally deprived upbringing in New York City's "Little Italy," where his family of six shared a three-bedroom flat without hot water or a bathroom.
Overcoming what his lawyer termed "myriad social injustices," DiLeo obtained a college degree and, in 1973 and 1974, asked the University of Colorado School of Law to admit him to its Special Academic Assistance Program.
The program, similar to those in numerous other law and professional schools, set aside 29 of 175 openings for applicants judged to have the capacity to be lawyers but deemed ineligible for regular admission because of disadvantaged cultural and educational backgrounds.
The school rejected DiLeo on the main ground that he was not a member of one of the deprived "identifiable groups" for which the program was established in order to offset their under-representation in the legal profession. These groups are principally blacks, Hispanics and American Indians.
DiLeo brought a lawsuit, lost at the trial level, and filed an appeal with the Colorado Supreme Court. While the appeal was pending last June, the U.S. Supreme Court handed down its decision in the famed case of Allan P. Bakke. The decision held that, while a University of California law school had to admit Bakke, who is white, special admissions programs for graduate schools could take race into account.
In a split decision in August, the Colorado tribunal rejected DiLeo's complaint that, as a victim of a socially disadvantaged background, he had a legal right, or standing, to challenge the special program's constitutionality.
The majority opinion said that, unlike Bakke, DiLeo would not qualify for the regular admissions program even if 29 slots weren't taken from it by the special program.
Consequently, the majority said, DiLeo wouldn't get into law school even if the special program were knocked out. Because he couldn't benefit from a ruling invalidating the program, "he has no standing to raise that issue," the opinion said.
A dissenting judge wrote that the special program is unconstitutional because it provides guidelines only "in the most ephemeral sense."
In the U.S. Supreme Court, where four justices are needed to grant a petition for review, only three voted to do so: Justices William J. Brennan Jr., Byron R. White and Thurgood Marshall.
DiLeo, who for a long time was a police officer, is now training in Aurora, Colo., to be a firefighter.
The court took other actions.
RIGHTS OF THE HANDICAPPED
By watching the nimble hands and silent lips of interpreters Carol Pace and Pam Carchio, about 15 deaf persons in the court's spectator section "heard" oral argument yesterday on an effort by a federally funded North Carolina college to bar Frances B. Davis from registered-nurse training solely because she has a severe hearing impairment. Davis, 46, has been a licensed practical nurse for 12 years, helped by a hearing aid and lip reading.
The court agreed to decide whether Schaumberg, Ill., violated the First Amendment rights of Citizens for a Better Environment with an ordinance requiring all organizations classified as charities to spend directly for their charitable purposes 75 percent of the money solicited from the public, mainly in door-to-door canvassing.
Granting a petition by the state of Nebraska, the court agreed to decide whether due process-mainly advance written notice and a hearing-must be accorded to a felon when he is to be transferred involuntarily from a prison to a mental hospital.
The court rejected a plea by the state of North Carolina to review a decision that two men convicted of safe-cracking were denied due process when the trial judge refused to let them address him before sentence was imposed.
The court cleared the way for Capt. John W. Pence, 30, a pediatrician, to be tried by a court-martial at Minot Air Force Base, N.D., on a charge of desertion.
As a medical student in 1973, Pence made an agreement to let the Armed Forces Health Professions Scholarship Program pay his tuition for two years in exchange for two years' active duty after getting his medical degree and completing his residency in pediatrics.
But instead of reporting for active duty last July, he submitted his resignation with a complaint that the Air Force had reneged on a promise it had made in recruiting him and with a statement that his professional services are urgently needed in rural Tenessee.
Charged with being absent without leave, Pence turned himself in last Jan. 11. The Supreme Court refused to grant him a stay.