I feel like we are talking past each other a bit, @OHMomof2. Almost as if you and I are reading different articles and letters!
While there may have been obstacles to black achievement in 1969, the Kay piece I linked to and quoted showed 2002 statistics for black students that, frankly, were worse than those implied by Macklin in 1969 - and clearly his close relationship with the school means he had the actual data. Keep in mind that by 2002 we had had affirmative action at the elite secondary and college level for 40 years, and that some of these black students were second- and even third-generation recipients of affirmative action; many had access to the very best secondary and college educations available. To recap, in 2002 there was only one black law student in the entire country who could post grades and scores even close to the median at Yale Law School (and that would go for Stanford, as well), and of course Yale will have admitted more than 15 black students. There were only 29 black students in the entire country who had credentials near where typical credentials would be for the “top ten” law schools, although collectively those same law schools will have enrolled literally hundreds of black students. Given that background, it is inevitable that the black students will find themselves disproportionately at the very bottom of their classes.
The point of the Macklin letter, and of the Kay piece, is that the difference in intellectual abilities between the preference admits and the “regular” admits is too obvious to hide. Kay (in 2003) puts it well:
“As my experience at Yale showed, it is impossible to construct an academic environment in which every type of meritocratic ranking or competition is eliminated. Eventually, the wheat and the chaff get separated. When blacks find themselves disproportionately represented in the chaff, ‘institutional racism’ and other supposedly explanatory theories follow, and interracial relations suffer.”
As anticipated by Macklin in 1969, and confirmed by Kay 30 years later, letting in students who are of lesser academic and intellectual ability – and doing it by race – is likely to confirm stereotypes, rather than break them down. Note that this becomes a problem at all levels of law schools. If the true elites (really, just Yale and Stanford) collectively enroll 30 or so black students, only one of which was likely to have been academically qualified, the next level “down” (Harvard, Columbia, Penn, U. Chicago, etc.) must reach even deeper into the talent pool. And so on. At any given level, students are likely to encounter a group of black students who – on average – are very significantly below the average of the school on academic and intellectual measures, reinforcing harmful stereotypes.
This is especially harmful to those black students who are intellectually and academically the equal of anyone at their school and who would have been admitted under “regular” admissions criteria. By employing a race-based preference system – which of necessity must use extreme measures to approach anywhere near 10% representation for black students at the top ten law schools – the schools are codifying a system in which race carries tremendous information. This is the point of some recent research that is also illuminating; see here (unfortunately behind a pay wall): https://www.wsj.com/articles/hard-truths-about-race-on-campus-1462544543. People will assume that black students are there “only because of their race,” not without some justification in light of the statistics.
It’s nice to imagine that we can sweep all this under the rug and pretend that all students are “qualified.” Nevertheless, reality is a stubborn thing. When you are talking about Yale or Stanford law students, the average intelligence is going to be well upwards of 2 and 1/2 standard deviations above the mean. Notwithstanding anything the students might say for public consumption, the intellectual differences are going to be noticed and noticed quickly, which again is the point of the Macklin letter and of the Kay piece more than 30 years later.
As for legacy and other preferences, I am 100% with you, @OHMomof2. I don’t like them. I’d go so far as to say that the primary beneficiaries of affirmative action at elite colleges and law schools are likely to be white, privileged and/or connected students. This naturally follows because in order to strive for some sort of consistency among preference groups, admissions needs to deemphasize intellectual ability and academic promise. It becomes then much “easier” for admissions offices to admit whom they want when objective criteria are deemphasized. Privileged white students (legacy, development) are likely to benefit just as much as the lesser qualified minorities admitted under the race preferences, if not more.