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2011 Michigan State Law Review 1133 (2011)


This article is extraordinarily timely as it responds directly to new rules formulated by the Department of Education (DOE) that require law schools to gather and report upon the racial and ethnic makeup of its student body. We argue that these new rules fail to be responsive to the dramatic changes in the meaning and utility of racial and ethnic categories. In turn, such changes threaten to negatively impact individuals from communities that are both underrepresented in the nation’s law schools and victims of the longest and most extreme histories of discrimination in the U.S. Accordingly, our article explores the administrative, social, and legal history of racial and ethnic categorization; examines the impact of such categorization particularly on Latinos and blacks; and finally, recommends a more nuanced “reconstruction” of racial/ethnic categories by law schools and their regulating bodies in order to accomplish the laudable goals of affirmative action.

As we detail more fully in the article, law schools are required annually to report the racial and ethnic ancestries of their students to the DOE, the American Bar Association (ABA) and the American Association of Law Schools (AALS). The DOE, however, promulgated new rules (the Guidance) that went into effect for the 2010/11 academic year, which changed how law schools gather and report racial and ethnic information. Our article indicates that such a change will have a tremendous impact on the admissions prospects of Black and Latino students. For example, in the article, we analyze the impact of the reclassification on Black Latinos, Black Multiracials and Black Immigrants (individuals with at least one foreign-born black parent). Colleges and universities do not typically classify their black students based on their racial or ethnic ancestry. Yet, there is evidence that Black Multiracials and Black Immigrants are already significantly overrepresented among black students at selective higher education institutions -- feeder schools for law schools. In addition, the percentage of Black Multiracials and Black Immigrants among the black college age population will increase dramatically in the next five to ten years. Under the DOE and ABA classification schemes, admissions officials confront the issues of should they treat Black Latinos and Black Multiracials as Black/African-American for purposes of positive considerations in the law school admission process? Or, should Black Latinos be compared with other applicants in the Latino category and Black Multiracials to others in the Two or More Race category?

How admissions officials resolve these issues directly implicates the future role and implementation of affirmative action plans in higher education. In Grutter v Bollinger, the Supreme Court upheld the affirmative action plan of the University of Michigan Law School. That plan sought to achieve “racial and ethnic diversity with special reference to the inclusion of students from groups which have been historically discriminated against, like African-Americans, Hispanics and Native Americans, who without this commitment might not be represented . . . in meaningful numbers (emphasis added).” Because of substantial immigration and interracial procreation -- particularly with regard to blacks -- since the institution of affirmative action, our article brings attention to the significant changes that have occurred in the racial and ethnic population mix of groups traditionally thought to have experienced a history of discrimination in the United States due to race and ethnicity.

Our article also anticipates the Supreme Court’s latest statement on the law of affirmative action in the up-coming Fisher v. University of Texas at Austin case. At this point, it is impossible to tell how the Court’s opinion in Fisher will impact the current application of affirmative action admissions policies. What is certain, however, is that such a decision guarantees that our society will discuss and debate the impact of affirmative action for the next several years. Many of these discussions will talk about the dire consequences faced by underrepresented minorities with a history of discrimination, particularly for blacks and Latinos, if the Court severely restricts or eliminates affirmative action.

The discussion in this article will continue to advance the deliberations among scholars, journalists, deans, admission administrators, and legal practitioners about the consequence of the shifting meaning of race for the future of the profession. Our recommendation to refine the broad categories to include racial/ethnic subgroups based on histories of discrimination and possible underrepresentation will, therefore, provide law schools with far better information about the impact of the use of racial classifications in admissions. By making these recommendations, we hope that law schools can reconstruct race and ethnic categories in ways that more accurately achieve meaningful inclusion for our next generation of lawyers and judges.