The professor vs. the state bar, and affirmative action

Whatever you think of affirmative action programs at universities and graduate schools, it’s important to know whether they’re working — that is, whether they are preparing their beneficiaries for professional success. But for several years now, the California bar has resisted attempts by a critic of racial preferences to obtain information about the test scores and grades of graduates who take the state bar examination.

Last week, the California Supreme Court wisely rejected the state bar’s argument and ruled it must turn over the information to Richard Sander, a law professor at UCLA, and other researchers — provided that a way is found to protect the identities of individual test-takers. The decision is more than just a big win for Sander in his study of affirmative action; it is a victory for citizens’ right to know about the workings of all public institutions.

Sander is a proponent of the “mismatch” theory, which holds that minorities (and other beneficiaries of relaxed standards in admissions) who struggle at highly competitive institutions and in professional evaluations such as the bar exam would do better at less-selective institutions.


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Maybe he’s right and maybe he’s wrong. But there’s no justification for denying him the data he needs to test his theory. Obviously many minority students admitted under such programs do succeed in their studies and in careers in law, medicine and other professions. But if many others are falling behind, that is worth knowing.

The data Sander are seeking would enable him to compare students from a variety of backgrounds who attended schools with and without affirmative action programs. Under Proposition 209, law schools operated by state universities in California may not take race into account in their admissions policies. But that proscription doesn’t apply to private law schools. Furthermore, many candidates for admission to the California bar are educated in public and private institutions in other states that do engage in racial preferences.

Nor is such information of interest only to the state bar or scholars. As Chief Justice Tani G. Cantil-Sakauye said: “It seems beyond dispute that the public has a legitimate interest whether different groups of applicants, based on race, sex or ethnicity, perform differently on the bar examination and whether any disparities in performance are the result of the admissions process or of other factors.”

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A lower court will have to devise a way to provide Sander and other researchers with the data without revealing individual students’ grades or test scores. Sanders is open to methods that would protect privacy — such as “clustering” data from a particular institution over several years. But having resisted disclosure for so long, the bar should commit itself to full and energetic compliance with the court’s ruling.