High Court Gives Affirmative Action Foe a Peek at Private State Bar Admissions Data

Monday, December 23, 2013
Richard Sander (photo: Monica Almeida, New York Times)

High Court Gives Affirmative Action Foe a Peek at Private State Bar Admissions Data

UCLA Professor Richard Sander has a theory that affirmative action, which allows preferential admissions based on race, actually hurts minorities who attend law school. He published a controversial 2004 study (pdf) in the Stanford Law Review that made the argument, but he lacked data on state bar admissions to make his case.

So Sander asked the California State Bar for the information in 2008, was turned down and sued. He lost in San Francisco Superior Court, but the state Court of Appeal reversed and last week the California Supreme Court unanimously backed that decision.

Sander can have access to the database containing detailed information on the 14,000 applicants who take the bar exam each year in February and July. But the case is being sent back to the trial judge to determine how to grant Sander access to the information without compromising the privacy of the applicants. He is seeking access to more than 246,000 records since 1972.

California banned affirmative action in public colleges and law schools years ago, but that doesn’t apply to private schools. Sander wants to combine California information on race, law school attendance and grades, test scores and passage rates with data from other states.

Adam Liptak at the New York Times in 2005 said Sander’s theory of “academic mismatch” had “ignited what may be the fiercest dispute over affirmative action since 2003, when the [U.S.] Supreme Court found some forms of it to be constitutional.” Sander argued that affirmative action reduced the number of black lawyers by helping place them in law schools that are too tough. At lesser schools, they would have thrived and passed the bar in larger numbers.

“Students simply learn less when they are academically mismatched with their peers,” Sander wrote in 2004. He maintained that the already measured gap in the academic credentials (LSAT scores and undergrad grades) between black and white students causes other measurable gaps in law school grades and bar exam success.

Critics did not dispute that all three gaps existed, but argued that causality between the first gap and the other two was pure conjecture. They also noted he lacked the bar admissions data to prove his point.

Where the Sander and his critics agreed was that in his perfect world without affirmative action influences along the way, black enrollment in law school would drop 14%. He said he found that drop acceptable, because those who won admission would be more likely to thrive in lousier schools and pass the bar at a higher rate.

–Ken Broder


To Learn More:

Affirmative Action Foe Wins California Court Fight (by Paul Elias, Associated Press)

California High Court Says State Bar Should Release Exam Scores (by Larry Gordon, Los Angeles Times)

For Blacks in Law School, Can Less Be More? (by Adam Liptak, New York Times)

Richard Sander et al v. State Bar of California (California Supreme Court) (pdf)

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