Another prophet of affirmative action

In a post called “The Prophet of Affirmative Action,” John cited and quoted extensively from a letter written in 1969 by California appellate judge Macklin Fleming, a Yale Law graduate, to the dean of Yale Law School. The letter questions the wisdom of the new quota system in terms that, as John says, are remarkably prescient.

I want to give credit to another, even earlier, prophet of affirmative action — John Kaplan of Stanford Law School. In 1966, Professor Kaplan wrote an article for the Northwestern University Law Review called “Equal Justice in an Unequal World: Equality for the Negro — The Problem of Special Treatment.”

Kaplan, as this professor puts it, “acknowledged that the moral claims of blacks for special treatment rendered overbroad any simple call for a single principle of colorblindness.” However, he argued that the negative consequences of affirmative action militated against race-based preferences. Among the negative consequences Kaplan cited were the exacerbation of racial divisions, the stigmatization of blacks, the dampening of motivation of blacks, and the involvement of the state in racial classifications.

Kaplan’s article has been cited at least twice by the Supreme Court, including by Justice Powell in Regents of Univ. of Cal. v. Bakke (1978), the seminal opinion on the constitutionality of using race in college admissions. Unfortunately, the Supreme Court failed to heed Kaplan’s warning.

I took two courses from Professor Kaplan at Stanford. He was one of the best professors at the law school in those days, and hands down the most entertaining. Indeed, Kaplan is probably the funniest person I’ve ever known.

He was exceptionally quick. I would love to have seen Kaplan do those quicky debates on cable news. He probably would have taken the side he disagreed with — as he sometimes did — just to give his opponent half a chance.

John Kaplan died in 1989 at age 60. His New York Times obituary is here. It omitted mention of his remarkable 1966 article on racial preferences.


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