Are you aware of the new federal Department of Education guidelines for the classification of race and ethnicity (Guidance) that went into effect for this fall's incoming class of law students? These regulations apply to all educational institutions, including law schools. In addition, the ABA Questionnaire Committee has also changed the requirements on race and ethnicity for law schools to comply with the Guidance. At the 20th Critical Race Theory Symposium, I mentioned this during one of the preliminary sessions because the Guidance is a game changer for everyone working with issues of race and ethnicity. I also talked about this at the AALS Post Racial workshop this past June in New York.
Historically, law schools lumped all blacks into a unified Black/African/African-American category. Law schools counted anyone who indicated that they were black in their counts of blacks. What the new regulations require is that when educational institutions seek to gather data on race and ethnicity, they must first ask "Are you Hispanic/Latino?" Then they must allow a respondent to mark one or more of five racial categories, (1) American Indian or Alaska Native; (2) Asian American; (3) Black or African American; (4) Native Hawaiian or Other Pacific Islander; and (5) White.For purposes of reporting the race and ethnicity of their students to the DOE (and to the ABA), law schools must count anyone who answers "yes" to the Hispanic/Latino question in their count of Hispanic/Latino, regardless of which and how many racial categories they check. For non-Hispanic/Latino respondents who select more than one of the race categories, law schools must report all of them in a new "Two or More Races" category. Thus, law schools must report a person who answers "yes" to the Hispanic/Latino question and also checks the black racial box (Black Hispanic) in their counts of Hispanic/Latinos. In addition, law schools must report a non-Hispanic/Latino person who checks the black racial box and at least one other, say White or Asian or both (Black Multiracials) in a new Two or More Races category, along with other multiracials. In other words, as of now, law schools report Black Hispanics as Hispanic/Latino and Black Multiracials as Two or More Races.
The impact of the Guidance will have tremendous implications for both how many black students there are and the racial ancestry of those black students. Effectively, law schools can no longer count Black Hispanics and Black Multiracials as black. I should also note that Black Multiracials and, to a far lesser extent, Black Hispanics are placed in a precarious position by the Guidance that could significantly reduce their chances of admissions to selective higher education institutions as the impact of the Guidance unfolds. When admissions officials at selective higher education institutions consider racial classifications in their admissions process, they base those decisions on a holistic evaluation of a given applicant. Nevertheless, no doubt many admissions officials-at least in their minds-compare the standardized tests scores and grade point averages of a particular applicant from a given racial/ethnic group to other applicant’s of the same racial/ethnic group. The average LSAT scores for African Americans who took the test during the 2007-08 academic year was 142.2, for Hispanics 146.3, for Mexican Americans 148, for Native Americans 148.6, for Asian Americans 152 and for Caucasians 152.6. Thus, changing the comparative group on the SAT for Black Multiracials, from Black/African American to applicants in the Two or More Race category would move the average SAT score of their comparison group from 142.2 to a group that includes White/Asian multiracials that could have average LSAT scores 10 points higher!
The new reporting requirements will allow higher education programs to collect data on self-identified Black Hispanics and self-identified Black Multiracials. However, the Guidance does not mandate the collection or reporting of data regarding the ethnicity of Blacks. This is not surprising since the Department of Education promulgated the Guidance out of a concern for the growing multiracial population in the United States, not the changing ethnic ancestry of Blacks in the United States. Some commentators on the Guidance urged the addition of other racial/ethnic reporting categories, including Middle Eastern, Southeast Asian and African (as different from African American), Indian/Pakistani (as a different category from Asian), Filipino and Cape Verdean (as different from African American), but the Department of Education rejected these additions. The discussion about this topic in the Guidance noted that these categories were rejected during the discussions that lead to the 1997 OMB Standards. From the comments discussing the adoption of the 1997 OMB Standards, there does not appear to have been much additional discussion about separating Africans from African Americans or West Indians from African Americans. (Kevin Brown, "Now is the Appropriate Time, supra, at 316).