The Admission of Legacy Blacks


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, Duke, Georgetown, Northwestern, Oberlin, the University of California-Berkeley, the University of Michigan, the University of North Carolina, the University of Pennsylvania, Smith, Stanford, 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.” The argument goes, affirmative action was created as a means of overcoming the effects of slavery and rampant discrimination against Blacks during Jim Crow, and the participation of first and second generation Blacks in affirmative action programs does not truly further such goals.

This Article explores these policy questions concerning which Blacks should be the beneficiaries of affirmative action. In so doing, this Article explains why considerations of racial diversity alone are not enough during the admissions process at elite colleges and universities and why the ancestral heritage of black applicants should be considered as part of any school’s racial preference admission policy. At the same time, this Article explicates why the need to explore the ethnic backgrounds of black applicants during the admissions process should not work to exclude first and second generation Blacks and mixed race students from affirmative action programs. Overall, this Article argues that, while certain data suggests that economic and educational differences between legacy Blacks and non-legacy Blacks warrant a consideration of ancestral heritage in racial preference programs, they do not require or merit an exclusion of first and second generation Blacks and mixed race students from such programs; 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.