How long do we need affirmative action?

1976, Constance Baker Motley, African American judge:

Judicial predictions of reduction or elimination of the RAG through color – based decisions approached the l udicrous. In rendering the decisive vote on the High Court decision Grutter vs. Bolling (539 U.S. 2003) and endorsing a continuing legality of quotas, Justice Sandra Day O ’ Connor averred, “ …the Court expects that 25 years from now, the use of racial preferences of social performance will no longer be necessary. ” In 2012 and having concurred with Justice O ’ Connor in the 2003 ruling, Justice Breyer acknowledged evidence of the unchanging RAG but noted only nine of the 25 years had passed. Puzzled by remarks of Justices O ’ Connor and Breyer, Otis Graham , writing in the editorial page of the Wall Street Journal , recalled the 1976 statement of Constance Baker Motley, an African – American judge, at a Conference on Affirmative Action at the Center for Studies of Democratic Institutions: “ I despise the necessity of reverse discrimination but I swear to you we will end it in 25 years.” Twenty years had passed when Graham noted this in 1997, and it is now 16 years since then.

42 years so far.

1986, Euluis Simien writing for a law journal:

The purpose of this article is to review the accomplishments and failures of affirmation active in the legal educational arena over the last fifteen to twenty years. The most substantial accomplishments have been significant increases in the enrollment of minorities, other than Blacks, into American law schools. At the same time, affirmation action efforts have wholly failed to significantly increase Black enrollment in law school. In an effort to review these accomplishments and failures, this article reviews statistics on representation of females, Blacks, and other minorities in the bar and law schools. These statistics will show that although females and other minorities are not yet proportionally represented in the bar, an end to this disparity is in sight.

Was unable to get the article fulltext, so not sure if he made some predictions for blacks too, or just females and non-black minorities.

In 2003, US Supreme Court defended pro black etc race discrimination (affirmative action) in admissions:

The Court’s majority ruling, authored by Justice Sandra Day O’Connor, held that the United States Constitution “does not prohibit the law school’s narrowly tailored use of race in admissions decisions to further a compelling interest in obtaining the educational benefits that flow from a diverse student body.” The Court held that the law school’s interest in obtaining a “critical mass” of minority students was indeed a “tailored use”. O’Connor noted that sometime in the future, perhaps twenty-five years hence, racial affirmative action would no longer be necessary in order to promote diversity. It implied that affirmative action should not be allowed permanent status and that eventually a “colorblind” policy should be implemented. The opinion read, “race-conscious admissions policies must be limited in time.” “The Court takes the Law School at its word that it would like nothing better than to find a race-neutral admissions formula and will terminate its use of racial preferences as soon as practicable. The Court expects that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.” The phrase “25 years from now” was echoed by Justice Thomas in his dissent. Justice Thomas, writing that the system was “illegal now”, concurred with the majority only on the point that he agreed the system would still be illegal 25 years hence.

Well, 10 years to go!

Getting it right

Someone mentioned that a judge wrote a rather amazingly foresightful letter to Dean Louis Pollak in 1969:

Judge Macklin Fleming (quoted from Powerline):

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.


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.

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