Racial and Ethnic Ancestry of the Nation's Black Law Students: An Analysis of Data from the LSSSE Survey
Law Review Article
enrolled student demographics, law school diversity, race and ethnicity
Affirmative action continues to be one of the most controversial programs in American society. For example, in 1996, California voters adopted Proposition 209, a constitutional amendment that banned “preferential treatment” based on race, sex, color, ethnicity or national origin in college admissions. In the November 2020 elections, California voters rejected Proposition 16, which would have repealed that ban, by a vote of 56 percent to 44 percent. The First Circuit affirmed the lower court decision that Harvard’s affirmative action plan met constitutional requirements in the Fall of 2020. That decision was appealed to the Supreme Court. On June 21, 2021, the Court invited the Acting Solicitor General to file a brief expressing views on the case. And, anyone familiar with affirmative action, also recalls that at the close of Justice O’Connor’s opinion for the five person majority in Grutter v Bolinger she wrote: “We expect that twenty-five years from now, the use of racial preferences will no longer be necessary to further the interest approved today.” The precise implications of O’Connor's twenty-five-year period are debatable. At one extreme, it is an essential part of the holding of Grutter. As a result, affirmative action policies must end in twenty-five years. At the other extreme, it is a time to reflect upon where selective higher education programs and American society are with respect to the continued need for considerations of race and ethnicity in the admissions process. Arguably, since the Court did not reiterate the twenty-five year period in its decisions in either Fisher I or Fisher II, it may prove to be irrelevant. Regardless of how the federal courts ultimately resolve the 2028 deadline, one thing is clear, affirmative action will remain a controversial program under constant scrutiny.
When affirmative action began in the 1960s, the racial and ethnic makeup of the population, not only of the United States, but also of Blacks, was vastly different than it is today. According to the 1960 census, Caucasians constituted 88.6 percent of all Americans, with an additional 10.5 percent classified as black. The 1960 census categorized Hispanics/Latinos based on their race, not their ethnicity. Thus, African-Americans and Caucasians comprised 99.1 percent of the American population. As the 1960s dawned, America had also lived under its most restrictive immigration measures for the past thirty years. Consequently, during the 1960s, the percentage of foreign-born Americans plummeted to its lowest recorded levels in US history.
American society is now about 60 years removed from the initiation of affirmative action programs. Not only has the racial and ethnic ancestry of Americans changed substantially during that period, so has the racial and ethnic ancestry of Blacks. According to a 2019 Pew Research Center publication, of the estimated 46,800,000 people with Black ancestry, 13% (up from 7% in 2000) viewed themselves as mixed-race. Over that period, the percentage of those who were counted as non-Hispanic mixed-race Blacks was 8%, double what it was in 2000 and 5% were Black Hispanics (as compared to 3% almost two decades earlier). We refer to those who both indicated that they are Hispanic/Latino and have some Black ancestry as “Black Hispanics.” While the percentages of mixed-race blacks and Black Hispanics among the Black population were increasing, so were the percentage of foreign-born Blacks and their children. For example, the percentage of the Black population that was foreign-born increased from 1.1 in 1970, to 3.1 in 1980, to 4.9 in 1990, to 6.1 in 2000, and to 8.8 in 2010. From census data for 2019, for Blacks Alone and in Combination, 11.8% were foreign-born and an additional 8.8% were the children of foreign-born Blacks. Thus, first and second-generation Black immigrants made up 20.6 percent of the Black population.
This article will provide the first empirical data on the nation’s law students with some Black ancestry. In doing so, we will provide data on Ascendant Black law students and law students from the three major Successive Black groups: Black Hispanics, Black Immigrants and Black Multiracials. We do not propose to address whether the changing racial and ethnic ancestry of Blacks at law schools is a positive or negative development. Rather, we seek only to provide empirical information about the existence of this change and to assert that because it exists, it has altered the landscape for thinking about how affirmative action applies to those with Black ancestry.