20080522_197001904theblackquotaatyalelawschoolmacklinfleming
This exchange of private letters between Macklin Fleming, Justice of the
Court of Appeal, State of California at Los Angeles, and Louis Pollak, Dean
of the Yale Law School, seems to us to raise important issues affecting the
public interest. We are grateful to Justice Fleming and Dean Pollak for
permission to publish the correspondence–Eds.
Dean Louis H. Pollak
Yale Law School
New Haven, Connecticut 9 June 1969
Dear Lou:
The press of activity on Alumni Day didn’t allow me to comment
on your report to the Executive Committee of the Yale Law School
Association about current admission policy at the Law School. Hence
this letter.
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. You also said
that the future policyof the Law School will be to admit 10 per cent
of each entering class without regard to qualification under regular
standards. It thus appears that the demand of the Black Law Students
Union that 10 per cent of the entering class be black has been
more than met. It also appears that 38 fully-qualifed 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).
This new policy represents a radical departure from that set out
in the 1968 Yale Law School catalogue: “Admission is based entirely
on a judgment as to the applicant’s promise of professional
distinction.” It is clearly apparent that to this judgment has been
added the criterion of race.
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.
Next year the Law School will have in its midst approximately 30
students who were not required to qualify for admission under the
regular standards because of their race. Of the 128 admittees to next
fall’s entering class who had accepted in early April, the highest
ranking of 13 minority admittees stood in an 8-way tie for 98th place
under the regular criteria for admission. Predictably, most of these
students will find themselves unable to compete in law studies on
even terms with the other students, who have been admitted on the
basis of demonstrated academic performance and aptitude for logical
reasoning.
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. Such a pairing
in the same school of the brightest white students in the country with
black students of medic, ere academic qualifications is social experiment
with loaded dice and a stacked deck. The faculty can talk
around the clock about disadvantaged background, and it can excuse
inferior performance because of poverty, environment, inadequate
cultural tradition, lack of educational opportunity, etc. The
fact remains that black and white students will be exposed to each
other under circumstances in which demonstrated intellectual superiority
rests with the whites. If to compensate for disadvantaged
background, the faculty discriminates among students in its grading
and marking, its double standard will be quickly perceived by both
groups of students. Because of the Law School’s current admission
policy the difference between the two groups will be centered on the
factor of race.
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.
These unhappy prospects flow from the abandonment of an objective
system of admission based on intellectual aptitude (painstakingly
evolved over a period of decades) and the adoption of a system
of admission which takes racial considerations into account.
From your remarks and those of other members of the faculty I
gather the new system’s justification rests on three theories.
The first is a theory of proportional representation. Only 1 per cent
of the lawyers in the United States are black, and it is desirable that
this percentage be increased to the proportion of the black population
in the country, roughly 10 per cent. Consequently, all law
schools, including Yale, should have a student body which is 10
per cent black.
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.
A quota system based on race must assume there are two kinds of
racial discrimination and two types of quotas: the benign type designed
to help a disadvantaged group, and the malignant type designed
to prevent over-representation in a particular field by a hardworking
and competent minority. This argument wholly ignores the
fact that discrimination in favor of X is automatic discrimination
against Y. For X and Y substitute any color, religion, or ethnic background;
the process remains discriminatory. The argument of benign
discrimination glosses over the fact that under a quota system a person
is no longer judged on individual merit but is judged in part
according to his membership in a group. It also assumes that race is
a relevant criterion by which to choose law school applicants.
The faculty may have been persuaded to adopt its present quota
system by the argument of inverse, or compensatory, discrimination
mthat past discrimination against a particular group should be remedied
by present discrimination in its favor until the group catches
up. Here again the vice lies in the substitution of a group standard
of merit for an individual standard and in the extension of the criterion
of race to an area in which it should not apply. 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.
The aspiration to train more lawyers from minority groups is
highly commendable, but I do not believe it will be furthered by putting
unqualified or poorly qualified black students in competition
with students at Yale Law School who average in the 97th percentile
of intellectual achievement (higher than at any other law school).
There are many good regional and local law schools in Philadelphia,
Boston, Los Angeles, and other metropolitan areas, where black law
students can compete with white law students on equal terms and
where they can study law in competition with students of similar
qualifications and aptitudes. Many of these law schools do not follow
YaMs policy of numerically limited enrollment and are geared to
handle within reason all students who can qualify for admission. In
view of the prevalence of these law schools, the relative ease of admission
to many of them, and their flexibility in handling increased
numbers of students, the initiation of a system of proportional representation
for black students at Yale Law School serves no genuine
need or purpose.
The second justification for the current admission policy derives
from the Oxford precedent of training leaders for underdeveloped
countries. Oxford admitted students from distant countriesnBurma,
Nigeria, Kenyamwithout a close look at their academic qualifications
on the theory that whether or not they qualified for serious study,
something of Oxford culture would rub off; that when these students
returned to their people as leaders they would carry the torch of
Oxford with them. It is argued that, comparably, the mission of Yale
Law School is to train national leaders, and therefore its students
should be representatively selected in order to assure quality leadership
for all segments of the population. This theory assumes that the
study of law and the mastery of legal principles are merely incidental
by products of attendance at Yale Law School. It also assumes that
black lawyers compete only with other black lawyers in the practice
of a special kind of black jurisprudence and therefore the academic
performance of black law students at Yale Law School is largely
irrelevant to the development of their future role as national leaders.
No theory could be a greater myth, for the law the black lawyer
must master to achieve success in his profession is the same law
that the white lawyer must learn to handle. In his legal career the
black lawyer must expect to compete on even terms with the white
lawyer, whether he goes into a government oi_ce (executive, legislative,
or judicial), a corporate department, or a law firm. Any
suggestion to the contrary does a great disservice to black law students,
for I think it a safe prediction that national leadership will
conlinue to come, as in the past, from the ranks of those individuals
who have risen to the top of their occupations and professions.
The third justification for a policy of racial discrimination is based
on the suggestion that the traditional measures of qualification for admission
to law school aptitude tests and college grades–are not
accurate, and therefore the Law School is justified in not paying
strict attention to objective standards of admission. Doubtless there
is room for improvement in measuring aptitude in logical reasoning
and ability to handle abstract concepts, the qualities demanded for
intensive study of law, but from everything I have heard the present
tests achieve reasonably accurate results. For many years the Law
School prided itself on its ability to predict student performance in
law school on the basis of the criteria used for admission, and I
have heard nothing to cast doubt on the continued accuracy of
such predictions. If these criteria are ignored, the consequences are
equally predictable. In 1966 Michigan Law School embarked on a
policy of admitting black students under relaxed standards of admission.
The results of this policy were reported last fall to Michigan
Law School’s Committee of Visitors as “disappointing and to a
degree demoralizing . . . the academic performance is not satisfactory
and some new approaches must be explored.” And, I am told,
similar academic ditBculties are being experienced by the underqualified
black students in the first year class at Yale.
In my view none of the above theories justifies the inclusion of
race, or disadvantaged status, among the criteria for admission to
Yale Law School. While racial quotas may serve a purpose in some
contexts, they are entirely irrelevant to the operation of a graduate
professional school with limited enrollment, admission to which requires
four years of college training and specific aptitude for the
profession involved. The present policy of admitting students on
two bases and thereafter purporting to judge their performance on
one basis is a highly explosive sociological experiment almost certain
to achieve undesirable results.
The number of fully qualified minority applicants is growing, and
because of increased college attendance the number of those who
will qualify for admission to Yale Law School under its regular
standards should mushroom within the next few years. Under an
open door policy of competitive admission without regard to race,
religion, or color, and based solely on demonstrated achievement
and aptitude for the study of law, Yale Law School will maintain national
leadership in legal training. Under any other policy I think
this result doubtful. I urge reconsideration of the current admission
policy.
Very truly yours,
MACKLIN FLEMING
