Racial and Ethnic Ancestry of the Nation’s Black Law Students: An Analysis of Data From The LSSSE Survey

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 In the November 2020 elections, California voters rejected Proposition 16, which would have repealed that ban, by a vote of 56 percent to 44 percent.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. First, we present some socio-economic data on each of the examined groups to motivate why we have separated them for analysis. The principal distinction between Ascendant Blacks and Successive Blacks is that the ancestries of Ascendant blacks is derived from both Black parents whose ancestries suffered through the time periods of slavery and/or segregation in the US, while only ½ of the ancestry of Successive Blacks is from that linage. Thus, our core assumption is that by virtue of their ancestry, in general, Ascendant Blacks have both been more negatively affected by the history of racial oppression in the US than any of the Successive Groups of Blacks and have more experience with the impact of that history. Second, we use the LSSSE and ACS PUMS data to examine the relative representation of each group of Ascendant and Successive Blacks among law students and compare that with the relative representation of non-Hispanic, non-immigrant, non-multiracial Whites. We find that, save for Black Immigrants, Ascendant and Successive Blacks are underrepresented in law schools in comparison to their percentage in the population and that this under-representation is the most pronounced for Ascendant Blacks. Similarly, we examine the proportionate representation of Ascendant and Successive Blacks among students at top 50 law schools in the LSSSE survey and find that all of these groups are more underrepresented in top 50 law schools than in law schools in general and that once again this under-representation is greatest for Ascendant Blacks. We then discuss various “pipeline” issues that may contribute to this under-representation including achievement of a college degree, undergraduate grades and LSAT scores. Next, we use the LSSSE and ACS PUMS data to examine each group’s representation by gender. Given that for the past 30 years over 60% of undergraduate degrees earned by blacks have gone to females, we document the gross under-representation of males for all groups of Blacks in law school when compared to their percentage in the general population. Indeed, we find that all of the under-representation suffered by Blacks in law schools is suffered by Black males and Ascendant Black females. Again, we examine attendance in top 50 law schools and consider potential pipeline issues, this time with an eye toward differences associated with gender. We find that Black men suffer greater under-representation among top 50 law school students and suffer greater pipeline issues, except that Black men score higher on the LSAT. Finally, we examine the impact of class on Ascendant and Successive Blacks by examining the distribution of parental educational achievement for each group and estimating the payoff for each group in the percent of law students achieved per percent of the parent’s generation that attains a given level of educational accomplishment. Corresponding numbers are calculated for Whites for purposes of comparison. We find that both Ascendant and Successive Blacks suffer relative to Whites due to a comparative lack of parental educational achievement, and a lower payoff in percent of law students for parental educational achievement, but that Ascendant Blacks suffer the most. Interestingly, with respect to the payoff in law students for parental educational achievement we find that both Blacks and Whites with low parental educational achievement attend law school at approximately the same (very low) rate. However, we also found a surprising result. Although the progeny of the higher educated, both Blacks and Whites, are much more likely to attend law school than those with low parental educational achievement, the progeny of Blacks suffer a significant disadvantage relative to Whites in attending law school. Apparently, at least with respect to attending law school, the advantages enjoyed by Whites accrue to the children of the higher educated to a significantly greater extent than they do to Blacks.