Vanderbilt Law Review

First Page



Three 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-Chapel Hill, the University of Pennsylvania, Smith, Stanford, and Yale.

For many of those interested in how affirmative action advances social justice, this growing number of first- and second- generation black students and, to a lesser extent, mixed-race students has become a cause for concern. To those concerned, 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." Commentators argue that 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 the policy questions concerning which Blacks should be the beneficiaries of affirmative action at elite colleges and universities. In so doing, this Article explains why considerations of racial diversity are extremely important during the admission process at elite colleges and universities, but are not, on their own, sufficient to achieve true intraracial diversity among black students and advance affirmative action's "goal" of social justice. In particular, this Article explicates why the ancestral heritage of black applicants should be considered along with their race as part of any school's race-based affirmative action admission policy. At the same time, this Article highlights why the need to explore the ancestral heritage of black applicants during the dmissions 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 findings suggest that general economic and educational differences between legacy Blacks and non-legacy Blacks warrant a consideration of ancestral heritage in racial preference programs, those findings 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.