Is Affirmative Action Failing the Students It Was Designed For? - Higher Education
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Is Affirmative Action Failing the Students It Was Designed For?

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by Kevin Brown


Kevin Brown

Kevin Brown

According to the 1960 census, Whites constituted 88.8 percent of all Americans, with an additional 10.6 percent classified as Black. In addition, less than 1 percent of Blacks who were married were married outside of the race and interracial marriage was still illegal in over 20 states. Also, the 125,000 foreign-born Blacks in the United States comprised only 0.7 percent of the Black population.

Thus, when affirmative action programs were instituted in the 1960s, the most important assumption upon which selective higher education institutions developed these programs was that the predominant beneficiaries would be those Blacks whose entire ancestry were victims of the history of racial discrimination in the United States. Yet, in 2003, Professors Henry Lewis Gates and Lani Guinier pointed out that two-thirds of Blacks in the undergraduate student body at Harvard were either Black/multiracial or first- or second-generation Black immigrants.

Since the “Harvard Revelation,” several scholars have noted the changing racial and ethnic ancestry of Blacks attending selective higher education institutions. In 2010, this effort received a boost as new regulations promulgated by the Department of Education (ED) took effect. These regulations changed the way all educational institutions both collect and report racial and ethnic information.

They also required all educational institutions to rely on self-reporting in classifying a person’s racial/ethnic identity. These regulations added a new reporting category titled “Two or More Races” Non-Hispanic/Latino individuals who check multiple racial boxes are reported by their educational institutions to ED as members of this new category and not part of any single race category.

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While the data reported to ED combines all two or more races individuals into one category, from the information that educational institutions actually collect they can generate data for any racial/ethnic combination of multiracial students in their student body.

For example, while varying each year, 42 percent of the Black students enrolled as freshmen starting at Yale University in the falls of 2011 to 2014 were multiracial (54 percent in 2014), at the University of Virginia 21.5 percent for the same years (with 22.4 percent in 2014), and at Indiana University Bloomington, Black multiracial students made up 18.4 percent of all Black undergraduate students on campus in the fall of 2013.

Beyond selective higher education institutions, the Law School Admissions Council (LSAC) changed its registration form for the LSAT to reflect the changes required by the new ED regulations. LSAC data also relies on self-identification of racial/ethnic identity. This data revealed that the LSAT scores of Black multiracial students, particularly Black/White ones, are significantly higher than those of single-race Blacks.

According to LSAC figures, Black multiracial students made up 9.5 percent of the approximately 42,250 test-takers who indicated some Black ancestry and took the LSAT between 2010 and 2013.

­The Black multiracial percentage increased every year, going from 6.7 percent in 2010 to 10.7 percent in 2013. In addition, the percentage of Black multiracial students among those with Black ancestry approaching both college and law school age is on a steep upward trajectory.

­The LSAT is a test that is scored from 120 to 180 points. ­The higher the score, the better the test-taker performed. LSAC only releases a table that provides aggregate percentiles for LSAT scores for a three-year admissions cycle. For the admissions cycles of 2010 to 2013, the following are the percentages of those whose LSAT scores were: 150 and over (55.6 percent); 155 and over (36.6 percent); and 160 and over (19.7 percent). Black/White multiracial test scores are higher than those of all LSAT test-takers. In other words, there does not appear to be a racial test score gap on the LSAT for Black/White multiracial students.

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Since the implementation of the new ED regulations, admissions officials have had to face the question of how to treat applicants who indicate some Black ancestry for admissions purposes. No doubt many continue to work with the 20th century’s outmoded notion of the one-drop rule, which concluded that anyone with a single drop of Black blood was considered Black.

Yet a person who identifies with multiple races is choosing a racial identity that is separate and distinct from that of Blacks. Thus, to treat Black multiracial students as if they were Black harkens back to the one-drop rule and means that admissions officials are imposing upon Black multiracial students a racial identity that they have rejected.

In addition, given the evidence of the better performance of Black multiracial students on standardized tests used to determine admissions to selective higher education institutions suggested by the above LSAT scores and the increasing percentage of the Black population that is multiracial, admissions officials are substantially reducing the numbers of Blacks in the nation’s selective higher education programs in favor of Black multiracial students.

And when the overrepresentation of Black multiracial students is combined with the additional overrepresentation of first- and second-generation Black immigrants, whose percentage among Blacks approaching college age is also increasing, it means that, in an ironic twist of fate, selective higher education institutions, in the near future, could very well eliminate from their campuses the very group for whom they initially created affirmative action to benefit.

Kevin Brown is Richard S. Melvin Professor of Law at the Indiana University Maurer School of Law and author of Because of Our Success: The Changing Racial and Ethnic Ancestry of Blacks on Affirmative Action.

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