Flashback: The 1969 Prophecy of the Corruption of Affirmative Action

With Supreme Court oral arguments now scheduled for the Harvard and University of North Carolina affirmative action cases, I’ve started reading through some of the amicus briefs filed in the case, and will comment on some of them in due course.

Meanwhile, an exchange of letters between Macklin Fleming, a Justice of the Court of Appeals, State of California at Los Angeles, and Louis Pollak, Dean of the Yale Law School, that was published in The Public Interest in 1969 makes for remarkable reading today. In 1969 Yale Law School instituted a quota for black students. This was before the Supreme Court, in Bakke, struck down explicit quotas, but introduced the more insidious practice of disguising quotas beneath the banner of “diversity.”

Some samples from Fleming:

From your remarks and those of Dean Poor, I understand that 43 black students have been admitted to next fall’s class, of whom 5 qualified under the regular standards and 38 did not. You anticipate that half this group will actually enroll, thus furnishing 22 black students in the first year class of 165, of whom perhaps 3 will have qualified under the regular standards and 19 will not. . .

It also appears that 38 fully-qualified applicants for admission to Yale Law School have been rejected solely because they are not members of a minority race. Under current policy the admission ratio for black applicants (50 per cent) is 5 times the admission ratio for other applicants (10 per cent). . .

With the adoption of its new admission policy the Law School has taken a long step toward the practice of apartheid and the maintenance of two law schools under one roof. Already there has been established in the Law School building a Black Law Students Union lounge with furniture and law books provided by the school. And I learned from Dean Poor that the 12 black students in the present first year class who were admitted under relaxed standards have not done well academically. Dean Poor attributed this deficiency to the preoccupation of these students with racial activities. I think it equally logical to attribute their preoccupation with racial activities to their lack of qualification to compete on even terms in the study of law. . .

The immediate damage to the standards of Yale Law School needs no elaboration. But beyond this, it seems to me the admission policy adopted by the Law School faculty will serve to perpetuate the very ideas and prejudices it is designed to combat. . .

No one can be expected to accept an inferior status willingly. The black students, unable to compete on even terms in the study of law, inevitably will seek other means to achieve recognition and self-expression. This is likely to take two forms. First, agitation to change the environment from one in which they are unable to compete to one in which they can. Demands will be made for elimination of competition, reduction in standards of performance, adoption of courses of study which do not require intensive legal analysis, and recognition for academic credit of sociological activities which have only an indirect relationship to legal training. Second, it seems probable that this group will seek personal satisfaction and public recognition by aggressive conduct, which, although ostensibly directed at external injustices and problems, will in fact be primarily motivated by the psychological needs of the members of the group to overcome feelings of inferiority caused by lack of success in their studies. Since the common denominator of the group of students with lower qualifications is one of race this aggressive expression will undoubtedly take the form of racial demands–the employment of faculty on the basis of race, a marking system based on race, the establishment of a black curriculum and a black law journal, an increase in black financial aid, and a rule against expulsion of black students who fail to satisfy minimum academic standards. . .

The weakness of the proportional argument is that quotas, once instituted, cannot logically be limited to one group when other groups exist which are equally entitled to quotas. The next step is a series of quotas. But if minorities obtain quotas, demands from majority groups for quotas are bound to ensue. In short order a full-blown quota system would arise which would necessarily impose restrictions on overrepresented groups in order to assure a student body representative of the general population. A quota policy particularly discriminates against minority groups which have achieved disproportionate representation in a particular field. Such a policy discriminated severely against Jewish applicants for admission to medical schools in the 1930’s. That policy was undoubtedly justified by its supporters as one designed to preserve a proportion of gentile students in medical schools equivalent to their proportion in the general population. Currently, the orientals in California, roughly 1 per cent of the population, comprise in some instances 30 per cent of the enrollment in certain engineering and technical schools. Were a quota system to be introduced in those schools in order to favor black and Mexican-American applicants, the first losers would be applicants from the presently disproportionately represented oriental group. . .

There’s much more in Fleming’s long letter, and please do read the whole thing if you have time. Dean Pollak’s response also foreshadows the rampant corruption of our current scene:

For years—and long before such skepticism was fashionable—our Admissions Committee has entertained doubts about the predictive value (with respect to ultimate professional distinction) of the LSAT, and even of the college record, for applicants whose childhood and family background are remote from the experiences and aspirations of (primarily white) middle-class America, to which our conventional indices of academic aptitude and achievement are inevitably oriented. With this in mind, the Admissions Committee, under Jack Tate’s aegis, customarily gave less weight to the LSAT and the rest of the standard academic apparatus in assessing black applicants. . .

This means that, at least for the past fifteen years, numerous black students have been admitted to this Law School who would not have been admitted through uncritical application of the normal indices of past academic performance. Not surprisingly, given their lesser academic preparation, most of these students have not achieved academic distinction at the Law School. . .

[I]t is the view of the faculty that the school’s educational processes are unlikely to be impaired if the number of students with prior educational deficiencies is a minor fraction of the total student body. Second, it seems, in any event, reasonable to expect that the number of black applicants who are well prepared academically will increase markedly within the next few years, as a corollary of the increasing number of blacks matriculating at first rate colleges; and it is a fair expectation that our Law School can draw a substantial number of those who are highly qualified. . .

Pollak’s response seems pretty weak (not to mention condescending to minority students), but then it is the weak-mindedness of college administrators in general that have led us to the current situation. Needless to say, Judge Fleming’s views would be branded “hate speech” on campus today (just check with Amy Wax on this).