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Vanderbilt University Law School




Two years ago, the New York Times reported the results of a study that revealed that two-thirds of the black population at Harvard College consisted of first generation black immigrant students in the United States, second generation black American students, and mixed race students with one black parent. Additional studies have confirmed that the same phenomenon exists at other elite institutions, which include schools such as Columbia, Oberlin, the University of Michigan, the University of North Carolina, the University of Pennsylvania, Smith, and Yale. For many of those concerned about how affirmative action advances social justice, this growing number of first and second generation black students and, and to a lesser extent, mixed race students has become a cause for concern. To these people, such rising numbers, especially those of first and second generation black students, indicate that affirmative action programs are failing to reach those who are the original targets of the policy: native black Americans who descend from slaves in the United States, a group that I refer to as legacy Blacks. This Article explores policy questions concerning which Blacks should be the beneficiaries of affirmative-action programs and specifically tackles the issue of how such programs may be restructured so that they can begin to reach more legacy Blacks. In so doing, this Article does not contest the need to consider race as a factor in the admissions process at colleges and universities. Undoubtedly, race deeply affects the perceptions, experiences, consciousness, and opportunities of all Blacks, regardless of their ancestry and class status; thus, race is a valuable indicator to use in determining whether an individual may bring a perspective to the campus or classroom that is currently underrepresented. Yet, relying on findings from studies that suggest general educational, economic, and cultural differences between legacy Blacks and non-legacy Blacks, this Article explains why considerations of racial diversity alone may not be sufficient to effectuate the intent of affirmative action laws during the admissions process, and why considerations of ancestral heritage should be a part of any school's racial preference admission policy. At the same time, however, the Article examines why the need to explore the ethnic backgrounds of black applicants should not work to exclude first- and second-generation Blacks and mixed-race students from affirmative-action programs. In effect, this Article argues that, while statistical studies suggest that economic, educational, and cultural differences between legacy Blacks and non-legacy Blacks warrant a consideration of ancestral heritage in affirmative action programs, an exclusion of first- and second-generation Blacks and mixed-race students from such programs is unwarranted. To the contrary, the inclusion of first- and second-generation Blacks and mixed-race students in these programs actually furthers both the diversity and social justice goals of affirmative action. More importantly, this Article contends that this entire debate about whether first- generation Blacks, second-generation Blacks, and mixed-race students should be eligible for affirmative action helps to expose the flaws of an admissions system that focuses solely on the endpoint of students in their academic career rather than measuring the distance between where the students started their lives in terms of (dis)advantage and the point to which they were able to climb in their academic journeys. Finally, this Article stresses the importance of re-evaluating traditional admissions standards at elite colleges and universities, an act that can aid schools in the admission of legacy Blacks and other disadvantaged students.

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