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Excerpted From: Kevin D. Brown and Kenneth G. Dau-Schmidt, Racial and Ethnic Ancestry of the Nation's Black Law Students: An Analysis of Data from the LSSSE Survey, 22 Berkeley Journal of African-American Law & Policy 1 (2022) (76 Footnotes) (Full Document)


BrownAndDauSchmidtAffirmative action, which was last addressed by the U.S. Supreme Court in 2016, continues to be one of the most controversial programs in American society. The Court will again address the doctrine's legal status next term in Students for Fair Admissions, Inc. v. President & Fellows of Harvard, this time with three new appointees of former President Donald Trump on the Court. Against the background of this impending case, this article will examine the influence of an issue that has not received adequate scholarly attention for its impact on affirmative action, the changing racial and ethnic ancestry of Black people in the United States.

We reject the dominant American tradition of viewing all Black people in the United States alike. Instead, we recognize the growing racial and ethnic divisions within the Black Community by providing the first empirical data on the race and ethnicity of the nation's Black law students. In doing so, we break down the nation's Black law students into four different groups. Ascendant Blacks are those who are the sons and daughters of two American-born Black parents, as determined by the application of the one-drop rule at the time colleges and universities commenced affirmative action programs. When affirmative action was created, this was the presumed group of Black people who would make up its beneficiaries. We will distinguish Ascendant Blacks from three overlapping successive racial and ethnic groups of Black law students:

• “Black Multiracials”--those who self-identify as two or more races, with one being Black;

• “Black Hispanics”--those who self-identify as Black and Hispanic or Latino; and

• “Black Immigrants”--those with some Black ancestry who have at least one foreign born Black parent.

The primary distinction between Ascendant Blacks and these “Successive Blacks” is that the ancestries of Ascendant Blacks derive from both Black parents whose ancestors suffered through the time periods of slavery and/or segregation in the United States, while at most half of the ancestry of Successive Blacks is from that lineage. Thus, our core assumption is that by virtue of their ancestry, in general, Ascendant Blacks have been more negatively affected by the history of racial oppression in the United States than any of the groups of Successive Blacks and, thus, have more experience with the impact of that history.

We do not propose to address the normative question of whether the changing racial and ethnic ancestry of Black law students is a positive or negative development for purposes of understanding affirmative action. Rather, we seek only to provide empirical information about the existence of this change and to assert that because of it, the landscape for thinking about how affirmative action applies to those with Black ancestry has changed.

For reasons that will become apparent later, it is difficult to access data that provides a breakdown of the race and ethnicity of Black law students. However, recent changes in the Law School Survey of Student Engagement (LSSSE) provided us with a unique opportunity to collect this information on the subset of the nation's law students that fill out this survey. LSSSE is a part of Indiana University's Center for Postsecondary Research (CPR). LSSSE centers its work on studying the law student experience. As part of its efforts, it distributes an annual survey to law schools throughout the nation which asks students to respond to questions about their law school experience. The survey also gathers information about a student's personal and family background, including their self-reported racial/ethnic identities. We draw our data about the different groups of Black people in the nation's law schools from the 2019 LSSSE survey, the last pre-pandemic one, which was completed by approximately 11 percent of the nation's law students. Moreover, we weight this data according to the gender, race and ethnicity data contained in the American Bar Association (ABA) data set on all law students to ensure that our results are as representative as possible of the nation's law students.

This article proceeds in three substantive parts. In Part I, we discuss the changing racial and ethnic ancestries of Black people in the United States since affirmative action began. In Part II, we discuss the LSSSE data set that we use along with our weighting procedure based on the ABA data. Also in Part II, we discuss the Public Use Microdata Sample (PUMS), a subset of the American Community Survey (ACS). We use the ACS PUMS to provide comparative national data to analyze the relative representation of each group of Blacks among law students. In Part III, we present the primary results of this study. It is the heart of the article and deserves further exposition.

In the first section of Part III, we present socioeconomic data on each of the examined groups to explain why we have separated them for analysis. Our primary assumptions are that Ascendant Blacks have more experience with the history of racial discrimination in the US and that this history has impacted them more. We point to differences in a number of socioeconomic factors that provide some support for these assumptions.

In the second section of Part III, we use the LSSSE and ACS PUMS data to examine the relative representation of Ascendant and each group of Successive Blacks among law students and compare that with the relative representation of non-Hispanic, non-immigrant, non-multiracial White people, who we will refer to as “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 underrepresentation 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 underrepresentation is greatest for Ascendant Blacks. We then discuss various “pipeline” issues that may contribute to this underrepresentation, including completion of a college degree, undergraduate grades and LSAT scores.

In the third section of Part III, 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 Black people have gone to women, we document the gross underrepresentation of men for all groups of Black people in law school when compared to their percentage in the general population. Indeed, we find that all of the underrepresentation suffered by Black people in law schools is suffered by Black men and Ascendant Black women. 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 underrepresentation among top 50 law school students and suffer greater pipeline issues, except that Black men score higher on the LSAT.

Finally, in the fourth section of Part III, 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 for 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 Black people and Whites with low parental educational achievement attend law school at approximately the same (very low) rate. However, among those who enjoy the advantage of high parental educational achievement, Whites enjoy a significantly higher payoff than Black people in terms of the percent of law students resulting from a percent of the parents' generation who achieve graduate degrees, although both Black people and Whites are much more likely to go to law school than the progeny of parents with low educational achievement. 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 Black people.

[. . .]

In this section, we present the results of our study. First, we discuss socioeconomic data on the various groups that we are examining to motivate why they must be examined separately. In the second subsection, we introduce comparative data on the representation of the various groups of Black people among the nation's law students, both at all law schools and then the top 50 law schools. We also examine differences in various pipeline issues among the examined groups, including achievement of a college degree, undergraduate GPAs, and LSAT scores. In the third subsection, we present similar comparative data, but this time broken down by gender. Again, we examine representation among all law students and law students at top 50 law schools and various pipeline issues, but this time with an eye toward the impact of gender. In the final subsection, we examine differences in the impact of class on the examined groups. The indicator of class we use is the parents' educational achievement. Accordingly, we examine both differences in parents' educational achievement among the examined groups and differences in the yield in law students from parents' educational achievement among the groups.

Richard S. Melvin Professor, Indiana University, Maurer School of Law; B.S., Indiana University, 1978; J.D., Yale Law School, 1982.

Willard and Margaret Carr Professor of Labor and Employment Law, Indiana University, Maurer School of Law; B.A., University of Wisconsin, 1978; M.A., Economics, University of Michigan, 1981; J.D., University of Michigan, 1981; Ph.D., Economics, University of Michigan, 1984.

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