by Develyn Mistriotti*
“‘Georgie, how’d you feel when you walked off Master Howell’s place for the first time?’”. . . “‘Like a man,’ he said. . . . ‘I don’t need to tell you this, or maybe I do, because they have always favored you in a particular way. . . . I now rise when I want and I sleep when it is my will. My name is Parks because I said so. I pulled the name from nothing—conjured it as a gift to my son. It got no meaning except this—I chose it. Its meaning is in the doing. Do you get me, Hiram?’”
Our names are not merely devices used to present individuated identities to the world. Names are our psychological foundations. They situate our sense of self in the broader breasts of society and history by connecting us to the beliefs and values that have influenced our cultures and those of our progenitors. Our names reflect who we are, and they tell stories of how we became ourselves. It is often this connection—to family and our communities—that causes us to take pride in our names. They are greater than mere tools for telling the world who we are; they are our guides and biographers, influencing our thoughts and conduct through a sense of selfhood that is—both—individualized and communal, contemporary and historical.
I began to realize the significance of my name at nine years old. My mind listed from the lesson unfolding before my third-grade classroom toward questions of identity: Why is my last name Ferguson, but my mother’s is not? Was my biological father a Ferguson? Where does this name—my name—come from? After school, I posed these questions to my teacher, Mrs. Simmons-Watson, who was—if not merely my arch-nemesis—a loving and soulful mother-figure. She explained to me our history, relaying that, largely, our names were not originally ours but those of our disablers who lived long ago. Egalitarian from birth, I vowed to shed the name of my ancestors’ Irish-American enslavers and adopt one of my choice. I imagine my younger self to be proud of my doing so at my wedding sixteen years later.
Yet, a grander challenge endures for many Black Americans, including myself. Because we cannot reach across time to re-connect with our pre-enslavement identities, and adopting original Black names commonly results in housing, employment, and other discrimination, we are perpetually denied a central piece of our identities and, therefore, our freedom. This is the current state of Black Name Discrimination.
II. The Evolution of Black Names and Name Discrimination.
A. Naming Systems During American Slavery (1600s – 1860s).
Given the import of our names, it is no surprise, then, that American enslavers sought to demolish this source of African pride, identity, and desire for freedom. The practice of giving European names—mostly English, but also Dutch, French, and Spanish—to African people was viewed as essential to dampening the rebellious spirits among the enslaved. These names often intentionally lacked dignity (e.g., geographical names like “Africa” or temporal names like “Monday”), and—if necessary—they were reinforced via torture. A famous depiction of the struggle between American enslavers and enslaved people for control over their identity is found in the horrifying experience of Kunta Kinte in the fictional work, Roots: The Saga of an American Family, and subsequent film and TV adaptions. I strongly urge that the violent and graphic scenes from the film or TV adaption not be viewed by children absent considerate supervision. Under the heel of these unconscionable practices, the use of European names by enslaved people became increasingly common over America’s 250-year course of slavery.
B. Naming Systems of Freed and Liberated Black Americans (1860s – early 1900s).
Once they re-gained freedom, almost all Freed and Liberated people maintained the name given to them by their former enslaver (which usually included the enslaver’s surname) or adopted a different European name, rather than adopting original Black names or African names. In the decades following Emancipation, Black surnames changed far less than given names.
Concentrated literature on the subject offers myriad explanations for the retention of European names by free Black Americans. Certainly, access to information about their pre-enslavement identities was an issue some 250 years after slavery began. A separate theory suggests, “[i]t is the old story of the conventional versus the unconventional, and with names, as with other things, group usages generally dominate.” As to last names in particular, the same scholar writes, “American surnames represent an almost compulsory social or family pattern.” Likely without realizing, this author implicated Du Bois’ theory of double consciousness, premising the argument that Freed and Liberated Black Americans felt the conflicting interests of two dueling identities: Blackness, which called for the adoption of African names; and Americanism, which traditioned the preservation of family names that were already universally European.
Reinforcing extant social and psychological difficulties were the legal challenges and consequences of pursuing distinct names and formal name changes. As an initial matter, Black peoples’ access to government, including state civil courts, was all but barred, both, (A) in the early Reconstruction period, with the anti-canonical Dred Scott decision (1857) effectively denying the Black right to legal action until 1868 and the adoption or continued use of discriminatory Black Codes in many states to limit Black access to civil and criminal actions, and (B) well into the 1960s, via Jim Crow and other restrictive legal regimes. Perhaps the best evidence of the legal hurdles facing early Black Americans is the testimony of Freed and Liberated people themselves. Ultimately, as reflected in the names of future Black generations, some or all of these barriers – social, psychological, and legal – comprised a system that would catapult the legacy of American slavery into the future.
C. Contemporary Naming Systems (1960s – Present): Evolved Discrimination and a Proposed Legal Solution.
Though still uncommon, the use of uniquely Black first names spiked in the 1960s and ‘70s, and it continues to rise today.  A similar change has not been noted for Black surnames. It tracks that the Civil Rights Era—a period known for the dogged pursuit of racial justice by Black Americans and allies—would excite the desires of many Black Americans for names of their own. As one author observes, the shift in Black naming practices may be “attributable to the Black Power movement,” as well as the “cultural movement of the 1990s . . . to affirm and embrace black culture.”
Yet, despite the progress, two troublesome conditions remain today. First, uniquely Black first and last names are still not very common. Instead, the most common Black surnames in the country—Williams, Johnson, Smith, and Jones—are largely traceable to American enslavers. A federal index of common first names sorted by race is unavailable. However, states and cities that recently published such lists report that the most common Black baby names are still almost completely European, with modified European names and names symbolizing Power becoming increasingly common but still only occupying low positions on those lists.
Second, and more importantly, Black Americans choosing uniquely Black names can expect to pay the Black Tax for doing so. The Black Tax in this area takes two forms: First is the (academically untreated) personal cost associated with changing one’s name. This includes the abandonment of one’s birth name (disconnecting them from loved ones with the same name), family disputes created by such a decision, and the perception (of family members and others in their community) that shedding a name for reasons tied to American slavery is an unusual, unnecessary, or even un-American decision.
The Black Tax’s second form is the most impactful and widely known: a racial discount applied exclusively to Black people’s applications, statements, and writings. As the following studies demonstrate, the use of uniquely Black names in application processes – such as for employment, housing, or financing – and professional writing settings decreases the applicant’s success and the reader’s perception of quality.
(1) During a Los Angeles field experiment in 2003, researchers sent a standard rental e-mail inquiry to 1,115 landlords advertising vacant apartments. Each e-mail bore either a distinctively Arab name, uniquely Black name, or traditionally White name. Despite being identical to the others, emails with distinctively Black names received negative responses (including no response at all) thirty-three percent more often than did inquiries bearing White-sounding names and ten percent more often than inquiries with Arab names.
(2) In 2003, researchers submitted thousands of job applications to employers in Chicago and Boston for management and entry-level positions. On average, applications with distinctively Black names received fifty percent fewer callbacks than did those bearing White-sounding names. By strategically increasing and decreasing qualifications, the researchers concluded that Black applications suffered a racial discount, by which “a White name yield[ed] as many more callbacks as an additional eight years of [Black] experience.”
(3) After sending 83,000 applications to 108 Fortune 500 companies in the U.S., a 2021 study reported that applications with distinctively Black names were nine percent less likely to receive any response from employers.
These studies reveal that America’s legal protections against racially discriminatory housing, employment, and other practices are vulnerable to—at least—implicit bias. A possible solution to the discriminatory application issue is the implementation of laws requiring anonymous, name-blind application processes. In the employment context, various governments—including the United Kingdom, Germany, and Canada—have already adopted such regulations or experimented with doing so, often supported by third-party companies acting as a medium between employers and applicants. Admittedly, even in hiring, these laws cannot completely shield Black Americans from all forms of name discrimination. What the complete removal of names from applications offers is protection from discrimination in the initial screening process by delaying document reviewers’ access to a key racial indicator. This regulation would be a minimal step in the right direction, and other legal solutions would be needed.
Individually and societally, history is fundamental to understanding who we are. Black History relates hard fought victories: stories of grassroots accomplishments, unprecedented unions, and of David overcoming Goliath countless times. Black History also tells of tragic defeats: losses of old, losses anew, and losses systemically renewed. But history is not fixed in time. It winds as our stories do, as we live on. Black Name Discrimination has a place in this unfolding saga. So, while we cannot recover all that we have lost along the way, there is hope that we may—eventually—experience true liberty: to work, to learn, to live, and to name our children however we choose. Our actions—the actions of us all—will ultimately determine whether Black Name Discrimination amounts to a victory or a defeat. In this way, I am Black History.
*Develyn Mistriotti, University of Minnesota Law School Class of 2022.
 Ta-Nehisi Coates, The Water Dancer 58–59 (2019).
 See Newbell Puckett, American Negro Names 37–38 (1938) (explaining results from a case study on trends in Black naming systems from the 1600s through the early 1900s; reporting, for example, that thirteen percent of all enslaved people possessed African or Native American names in the 1700s, but that this figure dropped to less than one percent in the 1800s). Common African names used by the less than one percent of enslaved people who managed to retain them include Bamba, Samba, Bumbo and Cumba. Id.
 Id. at 35–36. Notably, in the late 1800s and early 1900s, uniquely Black names were: (A) African in origin, such as Quam, Sabra, or Sango, or (B) names designating empowerment, such as Prince, King, or Freeman. Id. at 38–41.
 Id. at 36.
 Id. at 35.
 Id. at 36.
 See W.E.B. Du Bois, The Souls of Black Folk 3–4 (1903) (“One ever feels his twoness,—an American, a Negro; two souls, two thoughts, two unreconciled strivings; two warring ideals in one dark body. . . . He would not Africanize America, for America has too much to teach . . . . He would not bleach his Negro soul in a flood of white Americanism, for he knows that Negro blood has a message for the world. He simply wishes to make it possible for a man to be both a Negro and an American, without being cursed and spit upon by his fellows, without having the doors of Opportunity closed roughly in his face.”).
 Quoting Voices from Slavery: 100 Authentic Slave Narratives 175 (Norman R. Yetman, ed., 2012) (accounting the testimony of Liberated people who detail challenges such as government pressure to choose legal names quickly after Emancipation, the loss of pensions for Black Civil War Veterans who changed their name but lacked proof of their past identity, and, generally, the daunting process of interacting with the government following a name change).
 Modern Black names tend to take two forms. First, words symbolizing Power are becoming increasingly popular. King, Royal, and Legend were among Georgia’s most common Black baby names in 2020. Other modern Black names—such as Jamal, Jayden, Londyn, and Karter—are European in origin and are customized according to the preferences for spelling and pronunciation of Black parents. Some scholars theorize that using modified European names for Black children began in the days of enslavement. See, e.g., Lisa D. Cook, Trevon D. Logan & John M. Parman, Distinctively Black Names in the American Past, NBER Working Paper 18802 (Feb. 2013). However, it is generally acknowledged that—among those Black people choosing uniquely Black names—this method did not become common until the 1970s.
 Black Tax has been defined in many different ways. Here, Black Tax means the costs attending systemic racism (or for remedying systemic racism) that fall exclusively on Black people.
 Marianne Bertrand & Sendhil Mullainathan, Are Emily and Greg More Employable Than Lakisha and Jamal? A Field Experiment on Labor Market Discrimination, NBER Working Paper 9873 (2003).
 Id., Table 1.
 Id. at 3.
 Other studies indicate conscious or implicit bias against the quality of Black professional writing, including in the legal field. See Arin N. Reeves, Written in Black & White: Exploring Confirmation Bias in Racialized Perceptions of Writing Skills (2014).