{"id":92893,"date":"2016-04-08T12:09:50","date_gmt":"2016-04-08T20:09:50","guid":{"rendered":"http:\/\/www.lukeford.net\/blog\/?p=92893"},"modified":"2016-04-08T12:14:44","modified_gmt":"2016-04-08T20:14:44","slug":"the-black-quota-at-yale-law-school","status":"publish","type":"post","link":"https:\/\/lukeford.net\/blog\/?p=92893","title":{"rendered":"The Black Quota At Yale Law School"},"content":{"rendered":"

20080522_197001904theblackquotaatyalelawschoolmacklinfleming<\/a><\/p>\n

From 1969<\/a>:<\/p>\n

This exchange of private letters between Macklin Fleming, Justice of the
\nCourt of Appeal, State of California at Los Angeles, and Louis Pollak, Dean
\nof the Yale Law School, seems to us to raise important issues affecting the
\npublic interest. We are grateful to Justice Fleming and Dean Pollak for
\npermission to publish the correspondence–Eds.<\/p>\n

Dean Louis H. Pollak
\nYale Law School
\nNew Haven, Connecticut 9 June 1969<\/p>\n

Dear Lou:
\nThe press of activity on Alumni Day didn’t allow me to comment
\non your report to the Executive Committee of the Yale Law School
\nAssociation about current admission policy at the Law School. Hence
\nthis letter.
\nFrom your remarks and those of Dean Poor, I understand that 43
\nblack students have been admitted to next fall’s class, of whom 5
\nqualified under the regular standards and 38 did not. You anticipate
\nthat half this group will actually enroll, thus furnishing 22 black
\nstudents in the first year class of 165, of whom perhaps 3 will have
\nqualified under the regular standards and 19 will not. You also said
\nthat the future policyof the Law School will be to admit 10 per cent
\nof each entering class without regard to qualification under regular
\nstandards. It thus appears that the demand of the Black Law Students
\nUnion that 10 per cent of the entering class be black has been
\nmore than met. It also appears that 38 fully-qualifed applicants for
\nadmission to Yale Law School have been rejected solely because
\nthey are not members of a minority race. Under current policy the
\nadmission ratio for black applicants (50 per cent) is 5 times the
\nadmission ratio for other applicants (10 per cent).
\nThis new policy represents a radical departure from that set out
\nin the 1968 Yale Law School catalogue: “Admission is based entirely
\non a judgment as to the applicant’s promise of professional
\ndistinction.” It is clearly apparent that to this judgment has been
\nadded the criterion of race.
\nWith the adoption of its new admission policy the Law School has
\ntaken a long step toward the practice of apartheid and the maintenance
\nof two law schools under one roof. Already there has been
\nestablished in the Law School building a Black Law Students Union
\nlounge with furniture and law books provided by the school. And I
\nlearned from Dean Poor that the 12 black students in the present first
\nyear class who were admitted under relaxed standards have not done
\nwell academically. Dean Poor attributed this deficiency to the preoccupation
\nof these students with racial activities. I think it equally
\nlogical to attribute their preoccupation with racial activities to their
\nlack of qualification to compete on even terms in the study of law.
\nNext year the Law School will have in its midst approximately 30
\nstudents who were not required to qualify for admission under the
\nregular standards because of their race. Of the 128 admittees to next
\nfall’s entering class who had accepted in early April, the highest
\nranking of 13 minority admittees stood in an 8-way tie for 98th place
\nunder the regular criteria for admission. Predictably, most of these
\nstudents will find themselves unable to compete in law studies on
\neven terms with the other students, who have been admitted on the
\nbasis of demonstrated academic performance and aptitude for logical
\nreasoning.
\nThe immediate damage to the standards of Yale Law School needs
\nno elaboration. But beyond this, it seems to me the admission policy
\nadopted by the Law School faculty will serve to perpetuate the very
\nideas and prejudices it is designed to combat. If in a given class
\nthe great majority of the black students are at the bottom of the
\nclass, this factor is bound to instill, unconsciously at least, some sense
\nof intellectual superiority among the white students and some sense
\nof intellectual inferiority among the black students. Such a pairing
\nin the same school of the brightest white students in the country with
\nblack students of medic, ere academic qualifications is social experiment
\nwith loaded dice and a stacked deck. The faculty can talk
\naround the clock about disadvantaged background, and it can excuse
\ninferior performance because of poverty, environment, inadequate
\ncultural tradition, lack of educational opportunity, etc. The
\nfact remains that black and white students will be exposed to each
\nother under circumstances in which demonstrated intellectual superiority
\nrests with the whites. If to compensate for disadvantaged
\nbackground, the faculty discriminates among students in its grading
\nand marking, its double standard will be quickly perceived by both
\ngroups of students. Because of the Law School’s current admission
\npolicy the difference between the two groups will be centered on the
\nfactor of race.
\nNo one can be expected to accept an inferior status willingly. The
\nblack students, unable to compete on even terms in the study of law,
\ninevitably will seek other means to achieve recognition and self-expression.
\nThis is likely to take two forms. First, agitation to change
\nthe environment from one in which they are unable to compete to
\none in which they can. Demands will be made for elimination of
\ncompetition, reduction in standards of performance, adoption of
\ncourses of study which do not require intensive legal analysis, and
\nrecognition for academic credit of sociological activities which have
\nonly an indirect relationship to legal training. Second, it seems probable
\nthat this group will seek personal satisfaction and public recognition
\nby aggressive conduct, which, although ostensibly directed at
\nexternal injustices and problems, will in fact be primarily motivated
\nby the psychological needs of the members of the group to overcome
\nfeelings of inferiority caused by lack of success in their studies. Since
\nthe common denominator of the group of students with lower qualifications
\nis one of race this aggressive expression will undoubtedly
\ntake the form of racial demands–the employment of faculty on the
\nbasis of race, a marking system based on race, the establishment of
\na black curriculum and a black law journal, an increase in black
\nfinancial aid, and a rule against expulsion of black students who fail
\nto satisfy minimum academic standards.
\nThese unhappy prospects flow from the abandonment of an objective
\nsystem of admission based on intellectual aptitude (painstakingly
\nevolved over a period of decades) and the adoption of a system
\nof admission which takes racial considerations into account.
\nFrom your remarks and those of other members of the faculty I
\ngather the new system’s justification rests on three theories.
\nThe first is a theory of proportional representation. Only 1 per cent
\nof the lawyers in the United States are black, and it is desirable that
\nthis percentage be increased to the proportion of the black population
\nin the country, roughly 10 per cent. Consequently, all law
\nschools, including Yale, should have a student body which is 10
\nper cent black.
\nThe weakness of the proportional argument is that quotas, once instituted,
\ncannot logically be limited to one group when other groups
\nexist which are equally entitled to quotas. The next step is a series of
\nquotas. But if minorities obtain quotas, demands from majority
\ngroups for quotas are bound to ensue. In short order a full-blown
\nquota system would arise which would necessarily impose restrictions
\non overrepresented groups in order to assure a student body
\nrepresentative of the general population. A quota policy particularly
\ndiscriminates against minority groups which have achieved disproportionate
\nrepresentation in a particular field. Such a policy discriminated
\nseverely against Jewish applicants for admission to medical
\nschools in the 1930’s. That policy was undoubtedly justified by its
\nsupporters as one designed to preserve a proportion of gentile students
\nin medical schools equivalent to their proportion in the general
\npopulation. Currently, the orientals in California, roughly 1 per cent
\nof the population, comprise in some instances 30 per cent of the enrollment
\nin certain engineering and technical schools. Were a quota
\nsystem to be introduced in those schools in order to favor black and
\nMexican-American applicants, the first losers would be applicants
\nfrom the presently disproportionately represented oriental group.
\nA quota system based on race must assume there are two kinds of
\nracial discrimination and two types of quotas: the benign type designed
\nto help a disadvantaged group, and the malignant type designed
\nto prevent over-representation in a particular field by a hardworking
\nand competent minority. This argument wholly ignores the
\nfact that discrimination in favor of X is automatic discrimination
\nagainst Y. For X and Y substitute any color, religion, or ethnic background;
\nthe process remains discriminatory. The argument of benign
\ndiscrimination glosses over the fact that under a quota system a person
\nis no longer judged on individual merit but is judged in part
\naccording to his membership in a group. It also assumes that race is
\na relevant criterion by which to choose law school applicants.
\nThe faculty may have been persuaded to adopt its present quota
\nsystem by the argument of inverse, or compensatory, discrimination
\nmthat past discrimination against a particular group should be remedied
\nby present discrimination in its favor until the group catches
\nup. Here again the vice lies in the substitution of a group standard
\nof merit for an individual standard and in the extension of the criterion
\nof race to an area in which it should not apply. The American
\ncreed, one that Yale has proudly espoused, holds that an American
\nshould be judged as an individual and not as a member of a group.
\nTo me it seems axiomatic that a system which ignores this creed and
\nintroduces the factor of race in the selection of students for a professional
\nschool is inherently malignant, no matter how high-minded
\nthe purpose nor how benign the motives of those making the selection.
\nThe aspiration to train more lawyers from minority groups is
\nhighly commendable, but I do not believe it will be furthered by putting
\nunqualified or poorly qualified black students in competition
\nwith students at Yale Law School who average in the 97th percentile
\nof intellectual achievement (higher than at any other law school).
\nThere are many good regional and local law schools in Philadelphia,
\nBoston, Los Angeles, and other metropolitan areas, where black law
\nstudents can compete with white law students on equal terms and
\nwhere they can study law in competition with students of similar
\nqualifications and aptitudes. Many of these law schools do not follow
\nYaMs policy of numerically limited enrollment and are geared to
\nhandle within reason all students who can qualify for admission. In
\nview of the prevalence of these law schools, the relative ease of admission
\nto many of them, and their flexibility in handling increased
\nnumbers of students, the initiation of a system of proportional representation
\nfor black students at Yale Law School serves no genuine
\nneed or purpose.
\nThe second justification for the current admission policy derives
\nfrom the Oxford precedent of training leaders for underdeveloped
\ncountries. Oxford admitted students from distant countriesnBurma,
\nNigeria, Kenyamwithout a close look at their academic qualifications
\non the theory that whether or not they qualified for serious study,
\nsomething of Oxford culture would rub off; that when these students
\nreturned to their people as leaders they would carry the torch of
\nOxford with them. It is argued that, comparably, the mission of Yale
\nLaw School is to train national leaders, and therefore its students
\nshould be representatively selected in order to assure quality leadership
\nfor all segments of the population. This theory assumes that the
\nstudy of law and the mastery of legal principles are merely incidental
\nby products of attendance at Yale Law School. It also assumes that
\nblack lawyers compete only with other black lawyers in the practice
\nof a special kind of black jurisprudence and therefore the academic
\nperformance of black law students at Yale Law School is largely
\nirrelevant to the development of their future role as national leaders.
\nNo theory could be a greater myth, for the law the black lawyer
\nmust master to achieve success in his profession is the same law
\nthat the white lawyer must learn to handle. In his legal career the
\nblack lawyer must expect to compete on even terms with the white
\nlawyer, whether he goes into a government oi_ce (executive, legislative,
\nor judicial), a corporate department, or a law firm. Any
\nsuggestion to the contrary does a great disservice to black law students,
\nfor I think it a safe prediction that national leadership will
\nconlinue to come, as in the past, from the ranks of those individuals
\nwho have risen to the top of their occupations and professions.
\nThe third justification for a policy of racial discrimination is based
\non the suggestion that the traditional measures of qualification for admission
\nto law school aptitude tests and college grades–are not
\naccurate, and therefore the Law School is justified in not paying
\nstrict attention to objective standards of admission. Doubtless there
\nis room for improvement in measuring aptitude in logical reasoning
\nand ability to handle abstract concepts, the qualities demanded for
\nintensive study of law, but from everything I have heard the present
\ntests achieve reasonably accurate results. For many years the Law
\nSchool prided itself on its ability to predict student performance in
\nlaw school on the basis of the criteria used for admission, and I
\nhave heard nothing to cast doubt on the continued accuracy of
\nsuch predictions. If these criteria are ignored, the consequences are
\nequally predictable. In 1966 Michigan Law School embarked on a
\npolicy of admitting black students under relaxed standards of admission.
\nThe results of this policy were reported last fall to Michigan
\nLaw School’s Committee of Visitors as “disappointing and to a
\ndegree demoralizing . . . the academic performance is not satisfactory
\nand some new approaches must be explored.” And, I am told,
\nsimilar academic ditBculties are being experienced by the underqualified
\nblack students in the first year class at Yale.
\nIn my view none of the above theories justifies the inclusion of
\nrace, or disadvantaged status, among the criteria for admission to
\nYale Law School. While racial quotas may serve a purpose in some
\ncontexts, they are entirely irrelevant to the operation of a graduate
\nprofessional school with limited enrollment, admission to which requires
\nfour years of college training and specific aptitude for the
\nprofession involved. The present policy of admitting students on
\ntwo bases and thereafter purporting to judge their performance on
\none basis is a highly explosive sociological experiment almost certain
\nto achieve undesirable results.
\nThe number of fully qualified minority applicants is growing, and
\nbecause of increased college attendance the number of those who
\nwill qualify for admission to Yale Law School under its regular
\nstandards should mushroom within the next few years. Under an
\nopen door policy of competitive admission without regard to race,
\nreligion, or color, and based solely on demonstrated achievement
\nand aptitude for the study of law, Yale Law School will maintain national
\nleadership in legal training. Under any other policy I think
\nthis result doubtful. I urge reconsideration of the current admission
\npolicy.
\nVery truly yours,
\nMACKLIN FLEMING<\/p>\n","protected":false},"excerpt":{"rendered":"

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