Saturday, October 24, 2020

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Excerpted From: Kevin Brown, Should Black Immigrants Be Favored over Black Hispanics and Black Multiracials in the Admissions Processes of Selective Higher Education Programs?, 54 Howard Law Journal 255 (Winter 2011) (279 Footnotes) (Full Document)

KevinDBrownSince the origin of affirmative action, selective higher education institutions have generally lumped all blacks into a unified Black/African/African American category. However, this practice of treating all blacks alike has now changed. The Department of Education (“DOE”) issued the Final Guidance on Maintaining, Collecting, and Reporting Racial and Ethnic Data to the United States Department of Education (“Guidance”) in October 2007, which had a final implementation date for the reporting school year of 2010-2011. The Guidance marked the first time that the federal government dictated the procedures that educational institutions, including selective higher education programs, must follow when collecting data on the race and ethnicity of their students and reporting it to the DOE. Previous federal regulations, such as Title IV of the Higher Education Act, required colleges and universities to report such data, but the DOE did not specify the collection procedures. This practice left higher education programs free to gather information using different methods. Such flexibility was important because it allowed higher education programs to respond more efficiently to their various local needs for racial and ethnic data about their students.

Beginning with the 2010-2011 academic year, educational institutions have been required to collect racial and ethnic data using a two-question format. Under the Guidance, all educational institutions are first required to ask respondents if they are Hispanic/Latino. Second, they must provide individuals with the ability to mark one or more of the following racial categories that apply to them: (1) American Indian or Alaska Native, (2) Asian, (3) Black or African American, (4) Native Hawaiian or Other Pacific Islander, and/or (5) White. The Guidance requires that educational institutions report individuals who indicate that their ethnicity is Hispanic/Latino to the DOE as Hispanic/Latino, regardless of the racial categories they may select. In addition, the Guidance requires educational institutions to report as “Two or More Races” those non-Hispanic/Latinos who mark more than one of the racial categories. As a result, colleges and universities now report as Hispanic/Latinos those individuals who answer “yes” to the Hispanic/Latino question and check black as one of their racial categories (“Black Hispanics”). Colleges and universities also must report those non-Hispanic/Latino individuals who check black and at least one other racial box (“Black Multiracials”) in their counts of Two or More Races, along with all other multiracial individuals. Thus, for the first time in American history, higher education programs, including selective ones, are required to separate individuals who before they would have placed in the “Black/African/African American” category into, effectively, Black Hispanics, Black Multiracials, and Black/African Americans.

The Guidance does not dictate how selective higher education programs apply affirmative action admissions policies to Black Hispanic and Black Multiracial applicants. In Grutter v. Bollinger, the Supreme Court specified that when selective higher education programs use race and ethnic classifications for determining admissions, they must employ an individualized admissions process. Nevertheless, there is little doubt that admissions officials--at least in their minds--compare the standardized tests scores and grade point averages of a particular applicant from a given racial/ethnic group to the scores and grade point averages of other applicants of the same racial/ethnic group. The Guidance's new categorization requirements raise the question of whether, in their mental comparisons, admissions officials of selective higher education programs should compare Black Hispanics and Black Multiracials with Black/African Americans? Alternatively, should admissions officials compare Black Hispanics to other applicants in the Hispanic/Latino category and Black Multiracials to others in the Two or More Race category? Or, should admissions officials at selective higher education programs employ a completely different method for treating the racial and ethnic identity of Black Hispanics and Black Multiracials?

Focusing on the racial/ethnic standardized test score gaps on tests used for admissions purposes by higher education programs reveals the precarious situation the Guidance creates for both Black Hispanic and Black Multiracial applicants. The average combined SAT math, critical reading, and writing score of blacks in 2010 was 1277. In contrast, the combined SAT scores for the various Hispanic/Latino groups were 1369 for Mexican Americans, 1363 for Puerto Ricans, and 1363 for other Latinos. American Indians and Alaskan Natives had an average combined SAT score of 1444; the average score for whites was 1580 and 1636 for Asian Americans. Significant racial/ethnic gaps also exist on standardized tests used to determine admissions to selective graduate programs like the GMAT, the GRE, the LSAT and the MCAT. For example, the average LSAT score for African Americans who took the test during the 2007-2008 academic year was 142.2, 146.3 for Hispanics, 148 for Mexican Americans, 148.1 for Native Americans, 152 for Asian Americans, and 152.6 for Caucasians.

Before the implementation of the Guidance, when admissions officials compared the applications of most Black Hispanics and Black Multiracials to others in their racial/ethnic group, they would have compared them to the applications in the Black/African American category. Because the test scores of those in the Black/African American category were lower than those in the various Hispanic/Latino or other racial categories, this comparison maximized the admissions prospects of Black Hispanics and, to a far greater extent, Black Multiracials. If admissions officials start to compare Black Hispanics to others in the Hispanic/Latino category, then such a comparison likely will have a negative effect on the admissions prospects of Black Hispanics when compared to pre-Guidance practices. However, a change in the comparison group of Black Multiracials may have a devastating impact on their admissions prospects to selective higher education institutions. White/Asian multiracials are likely to constitute a significant proportion of those in the Two or More Races category. Thus, the Two or More Races applicants' average standardized test scores will be much higher than those of the Black/African American category.

The Guidance's potential impact on future admissions prospects of Black Hispanic and Black Multiracial applicants is only half of the story. The purpose of the Guidance is to “obtain more accurate information about the increasing number of students who identify with more than one race.” Therefore, the Guidance does not mandate the use by educational institutions of ethnic subcategories within the Hispanic/Latino or any of the five racial categories on forms used to gather racial and ethnic information. As a result, by complying with the Guidance, selective higher education institutions will only generate internal data that allows them to separate Black Hispanics and Black Multiracials from Black/African Americans. They will not be able to determine the ethnic breakdown of blacks in the Black/African American category. In other words, the selective higher education institutions will not know how many of those included in their Black/African American category are foreign-born blacks or United States-born blacks who have at least one foreign-born black parent. This Article refers to blacks who have at least one foreign-born black parent as “Black Immigrants.”

Even though colleges and universities have not typically separated their black students into different racial/ethnic categories, scholars and commentators have recently pointed to a growing change in the racial and ethnic make-up of blacks enrolled in America's selective higher education programs. For example, at a gathering of the Harvard Black Alumni in 2003, two Harvard professors noted that Black Multiracials and Black Immigrants, together, comprised two-thirds of Harvard's black undergraduate population. Following the “Harvard Revelation,” a 2005 article written by Ronald Roach in Diverse Issues in Higher Education pointed to the findings of a study of the black presence that entered twenty-eight selective colleges and universities in 1999. The study revealed that 17% of those black freshmen were Black Multiracials and 41% were either Black Multiracials or Black Immigrants. A follow-up to this study focused solely on the presence of Black Immigrants. That study noted that even though Black Immigrants only constituted 13% of the black eighteen and nineteen year olds, they made up 27% of black freshmen at these institutions. The percentage of Black Immigrants was actually higher at the ten most selective schools in the study, constituting 35.6% of their student bodies. It was even higher at the four Ivy League schools (Columbia, Princeton, University of Pennsylvania, and Yale) in the survey where they made up 40.6% of the black students enrolled. According to Dr. Michael T. Nettles, Vice President for Policy Evaluation and Research at the Educational Testing Service, “If Blacks are typically 5 and 6 [%] of the population at elite colleges, then the representation of native U.S. born African-Americans might be closer to 3 [%].” In addition, a survey of college freshmen who entered the thirty-one elite colleges and universities comprising the Consortium on Financing Higher Education in the Fall 2007, revealed that 19% of the black students were Black Multiracials and an additional 4% were Black Hispanics. However, according to the 2000 Census counts, in 2007, only 6.3% of the black population between the ages of seventeen and twenty-one was multiracial.

While complying with the Guidance will generate data about the overrepresentation of Black Multiracials, and possibly Black Hispanics, among black students, it will not generate data about the dramatic increasing number of Black Immigrants in the student bodies of selective higher education institutions. Yet, just like Black Multiracials, Black Immigrants are also likely to be overrepresented among black students at selective higher education programs. Like Black Multiracials, Black Immigrants tend to come from families with more parental education and higher family incomes than other blacks. In addition, Black Immigrants, like Black Multiracials, also have at least one parent who is not a descendant from the group of blacks whose ancestral line experienced discrimination in the United States. Treating all black applicants alike has obscured the possible substantial underrepresentation among the black students in the student bodies of selective higher education programs of traditional blacks, those that others have termed as “third generation” or “legacy” blacks. This Article, however, will refer to individuals with two United States-born parents who were considered black when the applicant was born, “Ascendants.”

In brief, the implementation of the Guidance is likely to affect the admissions prospects of four different racial/ethnic groups of black applicants to selective higher education programs: Black Hispanics, Black Multiracials, Black Immigrants, and Ascendants. As the impact of the Guidance unfolds, the tendency of admissions committees to compare Black Hispanic applicants to other Hispanic/Latino applicants and Black Multiracials to other applicants in the Two or More Races category will increase. These reclassifications of Black Hispanics and Black Multiracials are likely to negatively impact the admissions prospects to selective higher education programs of these groups. While Ascendants should benefit from the implementation of the Guidance, Black Immigrants will likely benefit the most. Furthermore, the number and percentage of Black Immigrants among blacks approaching college age is likely to increase substantially in the coming years, given that the percentage of blacks that are foreign-born increased from 3.1% in 1980 to 8% in 2007. Accordingly, this Article discusses how selective higher education programs reached the situation where the implementation of the Guidance could lead to more favorable treatment of Black Immigrants than Black Hispanics and Black Multiracials. This Article also argues that admissions committees of selective higher education institutions should not provide more favorable treatment to Black Immigrants because the Guidance placed them in the Black/African American category than to Black Hispanics placed in the Hispanic/Latino category or Black Multiracials placed in the Two or More Races category.

Before 1970, the federal government did not attempt to standardize the collection and reporting of racial and ethnic data. However, due to changes in American discrimination law in the 1950s and 1960s, a number of federal agencies were involved in generating racial and ethnic data. The need to develop consistency in the production of this data generated the first effort by the federal government to standardize the collection and reporting of this data in the 1970s. In 1978, this effort eventually produced Statistical Policy Directive No. 15, Race and Ethnic Standards for Federal Statistics and Administrative Reporting (“Directive 15”). Part I of this Article discusses the federal government's efforts that led to the adoption of Directive 15.

Directive 15 provided the standards for collecting and reporting racial and ethnic data for the next twenty years. However, intense debate ensued about the categories and definitions of Directive 15, which caused the federal government to undertake a review of Directive 15 from 1993 to 1997. In October 1997, the review culminated in the Office of Management and Budget's (“OMB”) issuance of the Revisions to the Standards for the Classification of Federal Data on Race and Ethnicity (“1997 Revised Standards”). The collection and reporting of racial and ethnic data for the 2000 Census generally followed the 1997 Revised Standards. Part II of this Article discusses the adoption of the 1997 Revised Standards and concludes by reviewing the racial and ethnic data generated by the 2000 Census.

The 1997 Revised Standards required, after a transition period to review the data from the 2000 Census, that all federal programs adopt consistent standards. In accordance with this requirement, the DOE adopted the Guidance in October 2007. Data reported to the DOE pursuant to the Guidance deviates from the way the Census Bureau reported racial and ethnic data collected during the 2000 Census. The Census Bureau has the capacity to generate far more data about race and ethnicity of the American population than individual educational institutions have to generate such data about their students. The Census Bureau published data that not only included the separate racial counts of those in the Hispanic/Latino categories, but it also published counts for fifty-seven different racial combinations in the Two or More Races category. Thus, the 2000 Census data allowed for the separation of Black Hispanics from others in the Hispanic/Latino category and Black Multiracials from others in the Two or More Races category. When the DOE adopted the Guidance, however, it concluded that it was too administratively burdensome to have all educational institutions report the separate racial identities of those in the Hispanic/Latino and Two or More Races categories. Thus, educational institutions can generate internal data that provides separate counts of Black Hispanics from other Hispanic/Latinos and Black Multiracials from others in the Two or More Races category. However, in the data educational institutions report to the DOE it is not possible to obtain these separate counts. Thus, as the impact of the Guidance unfolds, selective higher education programs will tend to treat Black Hispanic applicants as Hispanic/Latinos and Black Multiracial applicants the same as it treats others in the Two or More Races category. Part III begins by discussing the process that the DOE went through and the decisions the DOE made that led to the specific provisions of the Guidance. It then highlights the Guidance's negative impact on the admissions prospects of Black Hispanics and Black Multiracials.

The Guidance does not require educational institutions to separate Black Immigrants from Ascendants in their counts of those in the Black/African American category. As a result, admissions committees will continue to compare Black Immigrants to applicants in the Black/African American category. This provides Black Immigrants with a competitive advantage in the admissions process of selective higher education programs when contrasted with Black Hispanics (who will be compared to other Hispanic/Latinos) and Black Multiracials (who will be compared to others in the Two or More Races category). Part IV argues that, given the justifications for the use of racial classifications in the admissions process, it is improper to provide this advantage to Black Immigrants.

[...]

Since the origin of affirmative action, selective higher education institutions have generally lumped all blacks into a unified Black/African/African American category. However, due to the DOE's promulgation of the Guidance, that has changed. The Guidance marks the first time that the federal government has specified how all educational institutions must collect and report data about the race and ethnicity of their students to the DOE. The Guidance, effectively, requires educational institutions to separate individuals who before would have been placed in the “Black/African/African American” category into the Black Hispanic, Black Multiracial, or Black/African American category. Under the Guidance, educational institutions include Black Hispanics in their counts of Hispanic/Latinos and Black Multiracials in their counts of Two or More Races. In the data reported to the DOE, Black Hispanics cannot be broken out of the totals in the Hispanic/Latino category and Black Multiracials cannot be separated from others in the Two or More Races category.

Before the implementation of the Guidance, when admissions officials compared the applications of most Black Hispanics and Black Multiracials to others in their racial/ethnic group, they would have compared them to applicants in the Black/African American category. Because the scores on standardized tests used for admissions to selective higher education programs of those in the Black/African American category were lower than those in most of the various Hispanic/Latino categories or the other racial categories, this maximized the admissions prospects of Black Hispanics and, to a far greater extent, Black Multiracials. However, as admissions officials adjust to the implementation of the Guidance, they are likely to start to compare Black Hispanics to others in the Hispanic/Latino category. Such a comparison will likely have a negative effect on the admissions prospects of Black Hispanics in comparison to what they were before the implementation of the Guidance. For Black Multiracials, however, the potential impact on their admissions prospects to selective higher education institutions created by a change in their comparison group, could be devastating. Admissions officials will compare them with other multiracials in the Two or More Races category, the largest numbers of which will be White/Asian and White/Native American multiracials.

The impact that the Guidance will have on the future admissions prospects of Black Hispanic and Black Multiracial applicants is only half of the story. The Guidance does not mandate that educational institutions use ethnic subcategories. As a result, by complying with the Guidance, selective higher education institutions will not be able to determine the ethnic breakdown of blacks in the Black/African American category. In other words, they will not know how many of those included in their Black/African American category are Black Immigrants.

Even though colleges and universities have not typically divided their black students into different racial/ethnic categories, scholars and commentators have recently pointed to a growing overrepresentation of both Black Multiracials and Black Immigrants among the black students enrolled in America's selective higher education programs. Like Black Multiracials, Black Immigrants tend to come from families with more parental education and higher family incomes than other blacks. In addition, Black Immigrants, like Black Multiracials, also have at least one parent who is not a descendant from the group of blacks whose ancestral line is that of blacks that experienced the history of discrimination of blacks in the United States.

As selective higher education institutions come to grips with the reclassification by the Guidance of Black Hispanics and Black Multiracials, Black Immigrants are the ones likely to benefit the most. What is more, the number and percentage of Black Immigrants among the black student age population is likely to increase substantially for some time to come, because the percentage of foreign-blacks among the black population increased from 3.1% in 1980 to 8% in 2007. Yet, given the justifications for use of racial classifications in the admissions process articulated by the Supreme Court in its opinion in Grutter, admissions committees of selective higher education institutions should not provide treatment that is more favorable to Black Immigrant applicants than to Black Hispanic or Black Multiracial applicants.


Richard S. Melvin Professor of Law, Indiana University Maurer School of Law & Emeritus Director of the Hudson & Holland Scholars Program-Indiana University-Bloomington; B.S., 1978, Indiana University; J.D., 1982, Yale University.


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