Inside American Education (22 page)

The point here is that a substantial increase in minority student enrollment in higher education can be achieved with or without preferential admissions policies. Money is the crucial factor, given the lower incomes of blacks and some other minority groups. The case for preferential admissions policies must therefore stand or fall on its own merits, though the proponents
of such policies often argue as if preferential admissions were the only possible way to increase substantially the numbers of minority students in college.
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Unfortunately, proponents of preferential admissions policies have not only ignored history; they have ignored much of what has happened in the wake of these policies.

Although the taint of “insensitivity” or the outright charge of “racism” has often been applied to critics of preferential policies, many of these critics were in fact advocates of equal rights for blacks, long before that became a popular position in the 1960s. John H. Bunzel, for example, advocated equal rights for blacks back in the 1940s and Morris Abram, an attorney, took on the dangerous task of defending blacks in Georgia during the same era.
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The late Bayard Rustin, organizer of the famous “march on Washington” in 1963, was a militant black civil rights activist and pacifist who went to jail for his views during World War II. They and others like them later became critics of preferential policies, when these policies emerged during the 1960s.

Shifting Students

One of the earliest attempts to analyze preferential admissions policies in terms of their effects, rather than their goals, was undertaken by Professor Clyde Summers of the Yale Law School who, like some other early critics, was someone with a track record of concern for minorities, going back years before that was popular. Back in 1946, Summers wrote a landmark article on racial discrimination in labor unions.
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In a 1969 conference on preferential admissions to law school, he saw the key problem in such policies as being a pervasive
mismatching
of students and institutions, due to a systematic shifting of minority students from institutions where they could succeed to institutions where they were likely to fail. In short, the issue he raised involved the institutional
distribution
of minority students, not their aggregate numbers. Summers in fact characterized the shortage of minority lawyers as “disgraceful” and urged policies designed to “increase the number of minority group law students”
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—but not through preferential
policies, which he characterized as “an unreal solution to a real problem.”
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While troubled by the fact that “what one writes may be seized upon and used by those who seek excuses for doing nothing and thus preserving the present pattern of deprivation,”
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Summers nevertheless went to the heart of the problem of the preferential admissions approach—the systematic mismatching of minority students with institutions, thereby artificially fostering failure among students with the qualifications to succeed. Given that law schools, like the rest of the academic world, have a whole hierarchy of work standards, and a corresponding hierarchy of admissions standards, the issue was not whether a minority student was “qualified” to study law and become a lawyer, but whether his particular qualifications were likely to match or mismatch the institutional pace, level, and intensity of study under preferential admissions policies. While this issue was raised as regards law schools, the principle applies to the whole academic world.

Although institutions at the top of the hierarchy could dramatically increase their own minority student enrollments through preferential admissions policies, Summers warned them not to deceive themselves that they were creating any corresponding increase in the total number of minority students in law schools:

If Harvard or Yale, for example, admit minority students with test scores 100 to 150 points below that normally required for a non-minority student to get admitted, the total number of minority students able to obtain a legal education is not increased thereby. The minority student given such preference would meet the normal admissions standards at Illinois, Rutgers, or Texas.
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Correspondingly, when institutions in the second tier of the academic hierarchy lower their standards for minority students, they attract applicants who would otherwise go to institutions in the third or fourth tier. Summers continued:

Thus, each law school, by its preferential admission, simply takes minority students away from other schools whose admission standards are further down the scale. Any net gain in the total number of minority students admitted must come, if it
comes at all, because those schools whose admission standards are at the bottom of the scale take students whom they would not otherwise take…. In sum, the policy of preferential admission has a pervasive shifting effect, causing large numbers of minority students to attend law schools whose normal admission standards they do not meet, instead of attending other law schools whose normal standards they do meet.
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Academic and Social Problems

Summers’ crucial objection was to the needless academic and social problems created by this “pervasive shifting effect.” The “special social and psychological problems” of a preferentially admitted student “are multiplied if the student is not prepared to compete on even terms” with his classmates who enter with higher qualifications. An “intense anxiety and threat to the student’s self-esteem” are among the costs incurred “whenever a student is admitted to a school whose normal standards he does not meet, even though he does meet the normal standards of other schools.”
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This student does not get a better education because he is at a more prestigious school. On the contrary, he may well get a much worse education at such fast-paced institutions, in the sense of failing to learn things which he is perfectly capable of learning, in a learning environment that proceeds at a normal pace. Such a minority student may end up “confused, floundering and unable to keep up.”
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As Summers explained:

He is thrust into first year class with students with much greater verbal facility and much more developed skills in manipulating ideas. He is denied the time necessary for him to perfect the process of case analysis or to learn to work through legal problems, for the educational process is not geared to his needs but the needs of students who make up the large portion of the class and who are prepared for the faster pace…. The situation almost insures a sense of lostness and defeat.
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What are the further consequences of such a situation? According to Summers, offers of remedial help or reduced course loads are further blows to the student’s self-esteem and expressions
of the institution’s lack of confidence in him—and may be rejected for these reasons. The student’s escape routes include absenteeism and an attitude of dismissal toward the standard curriculum as “unnecessary and irrelevant” and a redirection of energies toward “community activities.”
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The consequences in terms of the reactions of white classmates are likewise negative, for racial mismatching can cause whites to carry with them from law school into the legal profession what Summers called the “monstrous” notion that minority lawyers are substandard.
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Summers’ recommendation was that more
money
be made available to enable more minority students to go to law schools—but without the preferential admissions which mismatch them institutionally.
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While Clyde Summers presented one of the fullest elaborations of the case against preferential admissions policies for minorities, others saw similar dangers. At about the same time as the 1969 conference at which Summers made his remarks, Judge Macklin Fleming was writing to Dean Louis H. Pollak of the Yale Law School to express his apprehensions over the fact that only 5 out of 43 black students admitted to that institution met the normal admissions requirements.
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Judge Fleming too was concerned about the bad effects he anticipated for both black and white students. Among whites, he said, double standards in admissions “will serve to perpetuate the very ideas and prejudices it is designed to combat.”
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That was because it leads to blatantly different performance levels, which cannot be talked away:

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 mediocre academic qualifications is social experiment with loaded dice and a stacked deck.
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In these circumstances, the faculty “can talk around the clock” about the disadvantages of blacks, Fleming said, and it will not erase the personal experience created by this mismatching of students.
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Meanwhile, black students cannot be “expected to accept
an inferior status willingly.” To salvage their self-respect, they “inevitably will seek other means to achieve recognition and self-expression.”
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Those means include “agitation to change the environment from one in which they are unable to compete to one in which they can.” He spelled this out:

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 for 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.
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Unfortunately, Judge Fleming’s prediction of more than 20 years ago turned out to be true not only for law schools, but also for the academic world in general. It is equally enlightening, however, to note the response to his argument by Dean Pollak, for this response was typical of a mindset which pervaded the academic world and which still does, well beyond the boundaries of law schools. Dean Pollak’s response was not in terms of incentives, constraints, or cirumstances created by preferential admissions policies, but rather was in terms of goals based on assumptions.

The law school admissions committee, according to Dean Pollak, has eschewed “uncritical application of the normal indices of past academic performance” in selecting minority students with “high promise not reflected in formal academic terms.” What this “high promise” was based on was not specified, nor were any criteria suggested by which this belief might be tested empirically. Instead, Dean Pollak claimed that the blacks selected were being trained for future “leadership.” As alumni, such students have “speedily demonstrated professional accomplishments of a high order”
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—though demonstrated to whom and by what criteria were likewise matters left unspecified and undefined. Moreover, the “present admissions policies” will be “under continuing review by the faculty,”
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so that presumably such policies could be changed if
any negative evidence materialized. He ignored the very possibility that preferential admissions policies might become politically irreversible—indeed, that students preferentially admitted could become a militant pressure group demanding ever-expanding quotas.

As for Judge Fleming’s central arguments, they were never confronted.

Empirical Evidence

Some factual evidence may be in order when evaluating these different views. As of the time of this discussion, admission to the leading law schools usually required a B + average in college and a Law School Aptitude Test (LSAT) score of 650 or more.
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As late as 1976, the total number of black students with LSAT scores of 600 or more and a B + average in college was 39—in the entire country.
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Despite Dean Pollak’s disparagement of the predictive value of LSAT scores and assertions of “high promise” detectable in other ways,
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the law school grades of the black student in the top ten law schools ranked at the 8th percentile—that is, 92 percent of the other law school students outperformed them.
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When disproportionately large numbers of black law school graduates failed their bar examinations, that simply set off more cries of “cultural bias” in the tests.
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In short, the prevailing dogmatism remained unmovable and impervious to any evidence.

As for the psychological pressures, a black law student captured that graphically:

Traditionally, first-year law students are supposed to be afraid, or at least awed; but our fear was compounded by the uncommunicated realization that perhaps we were not authentic law students and the uneasy suspicion that our classmates knew that we were not…. The silence, the heavy sense of expectation, fell on all of the blacks in the classroom whenever one of us was called on for an answer. We waited, with the rest of the class, for the chosen man to justify the right of all of us to be there…. And when the answer came, however poor it was, there would be relief visible in the faces of the
white students and the instructor, and audible in the renewed breathing of the rest of the black students.
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