Diversity and Justice at the Supreme Court
by Frank H. Wu
Page 2

Letter from the Chair, José E. Gaitán
Page 3

Hopwood v. State of Texas: Retreat from the Supreme Court Ruling in Bakke
by Leo J. Jordan
Page 4

Valuing Diversity - A Given?
by Keith Earley
Page 5

Affirmative Action: Define "Qualifications" from Diverse Viewpoints
by Dale F. Rubin
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1999 Spirit of Excellence Awards
by Charisse R. Lillie
Page 7

1999 Annual Meeting Schedule
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An open letter to Minority Counsel Program supporters
Page 9

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dale.jpg (8339 bytes)I speak to you today about a subject that has been extremely controversial and has caused emotional upset to those of us who have considered the issue. It is the subject of affirmative action. On this day when we are celebrating the affirmative actions of Dr. Martin Luther King to eliminate racial discrimination in both public and private institutions, I think it appropriate that we also celebrate the concept of and legislation designed to ensure that the powerful and deeply entrenched forces of racism be required to relent and allow qualified persons of color equal access to economic opportunity. Make no mistake about it, affirmative action is about the allocation of economic resources.

I have come to understand the true meaning of affirmative action as a result of my experiences as a beneficiary of the concept. At least three such instances have made a difference in my life.

The first occurred in 1963 when, as a young man seeking admission to Stanford University, I found myself in the office of its president. If admitted I would be only the tenth black person to do so in the university’s sixty-five years. I was a graduate of an all-black public high school in Oakland, California, with a C+ average and was required to attend one year of junior college to bring up my grades. The president looked at my junior college transcript, talked to me for about 15 minutes and decided that I was qualified for admission. He chose to ignore my SAT scores, which were far below the scores of the average Stanford student.

Oh yes, I forgot to mention one thing: I played football very well. Thus, in deter-mining whether I was qualified to attend Stanford University, the president chose to consider and emphasize attributes other than simply grade point average and SAT scores. No voices in opposition to this kind of affirmative action were raised then, nor are they raised today. No white student has ever filed suit alleging that a black university athlete was admitted with "qualifications" less than his. This is because superior athletic achievement has always been considered an important factor in the admissions process for both black and white students. You somehow become "qualified" if you can play basketball. And obviously, in spite of my low SAT scores, I was qualified to be a Stanford student. After all, I graduated.

This example indicates that we must refocus the discussion of affirmative action to the meaning of "qualified." SAT scores and grade point average are not the only determinants of ability to succeed in college. My second affirmative action experience occurred in 1970 when I graduated from law school. I was successful in law school, scoring first in my class in corporation law, and was chosen to take a business law seminar that only twenty students could take. I was selected by a prestigious San Francisco law firm to be its first black associate in seventy-five years. At this point there was no question about my qualifications.

Also there were more and more blacks graduating from law school who were seeking lucrative law firm jobs. The firm that hired me made a commitment to devote some of its resources to recruit and hire black lawyers. Toward this end, the firm interviewed black lawyers nationwide and  although I was the only one hired that year, two more were hired the following year. Over the next fifteen years many qualified blacks were hired in business firms across the country.

artcl5b.jpg (9070 bytes)Did this spasm of hiring eliminate the problem of discrimination in law firms? Unfortunately no, because the number of black associates making partner and thus obtaining a permanent economic stake-hold in the firm and the ability to take part in the decision making process was miniscule. For example, when I was hired in 1970, the number of black partners in San Francisco law firms totaled one-half of 1 percent. In 1996, this figure nationwide was 1.2 percent. How is it that the number of qualified black associates hired is 10 per-cent nationally but the number of black partners is only 1 percent? Does this suggest the continuing need for affirmative action?

Finally, the third affirmative act was committed by an institution that is near-by: The Appalachian School of Law, where I am presently employed. The board of trustees of the institution, along with the president and the dean determined that this new law school would have a faculty with diverse viewpoints. And it should be no secret to any of us that people of color have viewpoints in many areas that are significantly different from those of white people. It is vitally important that students hear all such viewpoints. Thus the administration at the law school committed resources to recruiting people of color to serve on its faculty and to comprise a part of its student body. In addition, successful efforts were made to prepare the Grundy community for its only black family. And I can confidently state that the reception my kids and I have received has been wonderful.

The point I want to make is that had the law school not acted affirmatively in seeking out qualified persons of color, I certainly would not have heard of Grundy, Virginia, nor would I have had the pleasure of addressing you today.

I would like to pose a hypothetical which illustrates both the inadequacy of standard notions of the meaning of "qualified" and the need to broaden our perspectives when evaluating whether a person of color is qualified to do the job. Let us suppose that the Southwest Virginia Community College was just getting started and wanted to hire ten new faculty members. And let us further suppose that the standards for hire depended upon traditional requirements, such as teaching experience and scholarship. And let us further suppose that after a review of all the resumes submitted, the top ten candidates were black. Do you think that all of these candidates would be hired? Of course not. Should they be hired? Of course not. This is because a community college faculty should represent at least some of the viewpoints of the community it serves. Thus the administration should at least hire some white faculty members even though they do not meet the traditional standards for hire. It is recognition that such traditional standards are deficient in that they do not enable this hypothetical educational institution to achieve the important goal of exposing its students to different points of view.

Finally, it is too bad that Dr. Martin Luther King is not around today to diminish the two main arguments of the opponents of affirmative action. To the first assertion that blacks are adequately represented in all areas of the national employment arena, Dr. King would have labeled that assertion as an appeal to tokenism:

With tokenism, the solution was simple. If all twenty million Negroes would keep looking at Ralph Bunche, the one man in so exalted a post would generate such a volume of pride that it could be cut into portions and served to everyone. A judge here and a judge there; an executive behind a polished desk in a carpeted office; a high government administrator with a toehold on a cabinet post; one student in a Mississippi university lofted there by an army; three Negro children admitted to the whole high-school system of a major city—all these were tokens used to obscure the persisting reality of segregation and discrimination.

And to the implication that simply because of the passage of time, and that affirmative action laws have been on the books for over twenty-five years, the problem of discrimination has been eliminated, I will conclude with the following words written by Dr. King in his letter from a Birmingham jail:

I had also hoped that the white moderate would reject the myth concerning time in relation to the struggle for freedom. I have just received a letter from a white brother in Texas. He writes: All Christians know that the colored people will receive equal rights eventually, but it is possible that you are in too great a religious hurry. It has taken Christianity almost two thou-sand years to accomplish what it has. The teachings of Christ take time to come to earth. Such an attitude stems from a tragic misconception of time, from the strangely irrational notion that there is something in the very flow of time that will inevitably cure all ills. Actually, time itself is neutral; it can be used either destructively or constructively. More and more I feel that the people of ill will have used time much more effectively than have the people of good will. We will have to repent in this generation not merely for the hateful words and actions of bad but for the appalling silence of the good people. Human progress never rolls in on wheels of inevitability; it comes through the tire-less efforts of men willing to be co-workers with God, stagnation. We must use time creatively, in the knowledge that the time is always ripe to do right. Now is the time to make real the promise of democracy and transform our pending national elegy into a creative psalm of brotherhood. Now is the time to lift our national policy from the quicksand of racial injustice to the solid rock of human dignity.

Mr. Rubin is a law professor at Appalachian School of Law in Grundy, Virginia. These comments are adapted from a speech to Southwest Virginia Community College on January 19, 1998.

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