Photo: Former and Deceased California Appellate Judge Macklin Fleming
In the late 1960s, Yale Law
School adopted a quota system for African-American applicants. Putting aside
its normal criteria for admission, Yale decided that future law school classes
would be 10% black, regardless of qualifications. Other law schools and
academic institutions did the same thing at around the same time.
On June 9, 1969, a Yale Law graduate, wrote a
letter to Dean Louis Pollak questioning the wisdom of the new quota system.
Reading the letter nearly 50 years later, one can only marvel at how prescient
Judge Fleming was.
I recommend the whole thing. Here are some excerpts:
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 also said
that the future policy of the Law School will be to admit 10 per cent of each
entering class without regard to qualification under regular standards.
***
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 pre-occupation 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. If in a given class the great majority of the black students are at the bottom of the class, this factor is bound to instill, unconsciously at least, some sense of intellectual superiority among the white students and some sense of intellectual inferiority among the black students.
***
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 pre-occupation 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. If in a given class the great majority of the black students are at the bottom of the class, this factor is bound to instill, unconsciously at least, some sense of intellectual superiority among the white students and some sense of intellectual inferiority among the black students.
Judge Fleming foresaw with
remarkable clarity how affirmative action would give rise to the political
activism we see today:
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.
Judge Fleming went on to
articulate and rebut the various rationales for race discrimination in
admissions. This paragraph is a relic of a better time:
The American creed, one that Yale has proudly
espoused, holds that an American should be judged as an individual and not as a
member of a group. To me it seems axiomatic that a system which ignores this
creed and introduces the factor of race in the selection of students for a
professional school is inherently malignant, no matter how high-minded the
purpose nor how benign the motives of those making the selection.
Fleming also pointed out that
discrimination in favor of one group necessarily means discrimination against
others:
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.
Which is, of course, a
phenomenon that we see everywhere today.
Judge Fleming died in 2010,
which means that he lived long enough to see his predictions vindicated. But to
be right is not necessarily to be heeded. Just ask Cassandra.
Dean Pollak replied cordially
to Judge Fleming’s letter. You can read his response, which defends race
discrimination in law school admissions, at the link. Pollak’s letter strikes
me as less than candid. I was struck by this passage:
[T]he considerations which have led the faculty to
enlarge its readiness to accept academically under-prepared applicants of high
promise are not confined to blacks or other disadvantaged racial minorities;
these same considerations, the committee has observed, argue for greater
solicitude with respect to, e.g., white applicants from Appalachia or the rural
south. The point is one which will, I am confident, not be lost sight of….
This prediction, unlike Judge
Fleming’s, did not prove to be prescient.
_________________________
Nixon started affirmative action
implementation
By Frances Rice
Photo:
Art Fletcher meets with former President George H. W. Bush at the White House
Black Republican Art Fletcher was a pioneer in the civil
rights struggle and was the “Father of Affirmative Action.” As President of the United Negro College Fund
in 1972, Fletcher coined the phrase: "the mind is a terrible thing to waste." He was one of the original nine plaintiffs in
the famous Brown v. Topeka Board of
Education lawsuit that brought school integration. Fletcher briefly pursued
a bid for the Republican presidential nomination in 1995.
The enforcement of affirmative action began with President
Richard Nixon‘s 1969 Philadelphia Plan crafted by Fletcher that was merit-based
and set the nation‘s first goals and timetables. Nixon was also responsible for
the passage of civil rights legislation in the 1970s.
Democrats turned
affirmative action into an unfair quota system which promotes divisive “black
privilege.”
Although affirmative
action now has been turned by the Democrats into an unfair quota system
that even most blacks do not support, affirmative
action was pushed by Nixon to counter the harm caused to blacks when Democrat
President Woodrow Wilson kicked almost all blacks out of federal government
jobs after he was elected in 1912. Also, while Wilson was president and
Congress was controlled by the Democrats, more discriminatory bills were
introduced in Congress than ever before in our nation’s history.
