Tuesday, July 2, 2013
Over the past five years, I have mentioned the issue several times. I have discussed this problem with officials of the American Bar Association, the American Association of Law Schools and the Law School Admissions Council. See here. In each of those discussions, I have emphatically speculated that if current trends continue, first and second generation black immigrants (Black Immigrants) and mixed-race blacks (Black Multiracials) will come to make up 80% of the black students in most law schools throughout the country by the year 2020. While all of the officials agreed that this was a distinct possibility, the most disconcerting thing is that none of them believed that anything should be done about it!
Many of us who are staunch supporters of public education do so because of our strong belief that education is the best (or perhaps, the only) way to address the problems of large numbers of poor, urban minority blacks. While we advocate for improvements in K-12 urban education, we see this as only one part of the pipeline necessary to achieve the ultimate goal of a large percentage of these students graduating from four year colleges and universities and, for many, successfully completing graduate programs. For educational pipeline believers, affirmative action is essential. It allows us to know that students most victimized by our society’s history of racism can graduate from selective higher education programs. It is with this preface that I want to discuss the changing racial and ethnic ancestries of blacks attending selective higher education programs.
We were first introduced to this issue by Harvard professors Lani Guiner and Henry Louis Gates in the same month that the Supreme Court decided Grutter. They pointed out that Black Immigrants and Black Multiracials comprised two-thirds of Harvard’s black undergraduate population. Following the “Harvard Revelation,” a 2005 article in Diverse Issues in Higher Education noted the findings of a Princeton study of the “black” students who in 1999 entered twenty-eight selective colleges and universities, essentially the same ones William Bowen and Derek Bok examined in Shape of the River. The study revealed that 41 percent of these black students were either Black Multiracials or Black Immigrants. A follow up study concentrated just on the presence of Black Immigrants. It discovered that Black Immigrants made up 35.6 percent of the blacks in the ten most selective institutions and 40.6 percent in the four Ivy League schools. According to a 2005 statement by Dr. Michael T. Nettles, Vice President for Policy Evaluation and Research at the Educational Testing Service, “[i]f Blacks are typically 5 percent and 6 percent of the population at elite colleges, then the representation of native United States born African-Americans might be closer to 3 percent.” In regards to Black Multiracials, a 2007 study of 31 of the most elite private colleges and universities in the country that compose the Consortium on Financing Higher Education disclosed that Black Multiracials made up 23 percent of the black students at those institutions. To demonstrate how widespread the changing racial ancestry of blacks benefiting from affirmative action has become, statistics from the admissions office of Indiana University-Bloomington showed that Black Multiracials comprised 18.7 percent of the black students in the combined incoming freshman classes for the fall of 2010 and 2011.
No matter how over represented the above evidence suggests Black Multiracials and Black Immigrants are among black students, those numbers understate the problem. The percentages of both groups among blacks of college age will skyrocket between 2010 and 2020. For example, the percentage of blacks in the country who are foreign-born has increased from 1.1 percent in 1970 to 4.9 percent in 1990 to 8.8 percent in 2010. According to the 2010 census, at that time the percentage of mixed-race blacks among blacks age 15 to 19 was 6.5 percent. However, their percentage increases to 13.7 percent for those between the ages of 5 and 9. Thus, if current enrollment trends continue, well before the expiration of the 25 year window for affirmative action provided by Justice O’Connor in her opinion in Grutter, a virtual prerequisite for blacks attending selective higher education programs will be that they must have either a foreign-born black or non-black parent.
The problem I am alluding to is not that Black Immigrants and Black Multiracials benefit from affirmative action. Surely, a strong argument can be made that they should receive some positive considerations in the admissions process. The problem is that selective higher education institutions, including our own law schools, are in the process of excluding the black students with two native-born parents who were considered black, as defined by no longer applicable one-drop rule. I call this racial/ethnic group of blacks, “Ascendants” because of this group’s ascendency out of slavery and segregation. The Ascendants were the ones responsible for affirmative action. But, for them, the Fisher decision creates no sigh of relief.
One of the conceptual problems with the concern about the disappearance of Ascendants I raise is that it requires us to draw racial and ethnic distinctions among blacks. Historically, American society has largely been oblivious to such distinctions. In addition, over the past 100 years the African-American Community has been very hostile to efforts to divide the Community. In the following two entries, I want to discuss why it now makes sense to draw distinctions between Black Immigrants, Black Multiracials, and Ascendant Blacks for the limited purposes of affirmative action.