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22 Berkeley Journal of African-American Law & Policy 1 (2022)


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,6 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.