Nat’l L.J., Professor Hopes Bar Passage Data Will Produce ‘Crisper Debate’ Over Affirmative Action:
Richard Sander, a professor at the University of California at Los Angeles School of Law, since 2006 has been pushing the State Bar of California to release detailed data on the academic records, bar exam results and ethnicities of candidates for admission to practice. Sander hopes to use that information to study the effects of law school affirmative action policies on minority attorneys.
Sander has published controversial research in the past concluding that affirmative action at elite institutions hurts minorities because they face academic disadvantages.
In March 2010, San Francisco, Calif., Superior Court Judge Curtis Karnow ruled that the bar’s documents were not subject to public disclosure. On June 10, a three-judge panel of California’s 1st District Court of Appeal reversed the trial court, ruling that the state bar is a public corporation whose records are subject to public disclosure under state law.
The National Law Journal spoke with Sander about the ruling, his research and where the matter goes from here. …
NLJ: Your past research has examined what you term the “mismatch” of students and academic institutions. What does that mean?
R.S.: It refers to how much your learning is affected by your relative position in the student body. I think the easiest way to see it is in the science context. Suppose you are a student who wants to become a physicist, and you don’t receive any preferences [in admission to a university]. You’re going to end up at a college where your credentials are roughly in the middle of the class, probably. You will be close to the level of expertise that the professors teach to.
Now suppose that the same student receives a large preference and is now at a school where their credentials are lower than 95% of their classmates. When they walk into that first-year physics class, it will probably be taught at a level higher than what they were expecting. They are likely to be confused or fall behind, and because every course builds on the proceeding course, their difficulties are going to accumulate over time. In the science context, there is growing evidence that if you want to become a scientist and you accept a large preference, your chances of getting a science degree are very low.
In the law school context, it’s a similar idea. If your credentials would land you at Pepperdine and you actually go to Stanford or Berkeley, a lot of the teaching is going to be aimed at students with higher credentials, and that will be a disadvantage. You will struggle more, learn less, and that will cumulatively make you more disaffected and unconnected to the academic life of the school. The other hypothesis is that how much you learn in law school tells us a lot about how good of a lawyer you will be.
NLJ: How will the California state bar’s data on law students and bar takers help you examine this issue?
R.S.: The main data source that this debate has used until now in the law school context is something called the Bar Passage Study, which was done back in the 1990s by the [Law School Admissions Council].
The LSAC has assembled this database, and it’s unique and very valuable in many ways, but it has some glaring problems. They grouped all law schools into one of six cohorts. The cohorts are ranked apparently by eliteness but also according to things like their size, and public/private status and so on. A second problem is that there are no data on bar scores. There are pass/fail data, but even that is grouped into clusters of states.
The bar has contended they did this because they wanted to protect privacy, but it’s pretty clear that they did it — in large part — to protect individual schools from possible litigation, because some of the data would show very aggressive use of affirmative action. At the time that the bar data were released, there were multiple challenges to preference policies, including at the University of Michigan Law School.
The best measure of an outcome is how well you do on the bar. If you are trying to make a comparison between two students, but you can’t tell exactly what school the students went to, and you can only very roughly estimate the outcome, then your measure of a mismatch is very crude. It’s very different to say, “This student went to Stanford and this person when to Pepperdine, and they had very different outcomes.” With the bar data, we will be able to look at individual schools, individual students, and we will be able to look at their actual bar results. It’s like going from binoculars to a telescope — from fuzzy images to sharp detail. It’s going to be a much crisper debate.
