The noblest-sounding justification for racial preferences—that they lift up their beneficiaries—may soon be exposed as fraudulent. A group of law professors and economists examining the effect of law school admissions preferences on students’ bar-exam passage rates is suing the State Bar of California to obtain data for their study. The proposed research could deal a death blow to the quota regime by proving that affirmative action actually damages a student’s chances of becoming a lawyer. Predictably, the race industry has mobilized to crush the project.
Lead researcher Richard Sander has already earned the enmity of much of the law professoriate for his pioneering work on affirmative action in law schools. Almost all black students are admitted to law school with drastically lower college and LSAT grades than those of white and Asian students. After their first year of legal education, 51 percent of blacks are in the bottom tenth of their class; two-thirds are in the bottom fifth. Blacks are four times as likely as whites to fail the bar exam on their first try. Sander has drawn two conclusions from these data, first published in 2004: first, that blacks’ low qualifications entering law school predict their lagging performance in school and on the bar exam; second, that there would be more black lawyers if schools stopped extending preferences to black students—because these students would learn more in schools that matched their capabilities.
An advance guard of preference advocates furiously tried to discredit Sander’s “mismatch” hypothesis, without drawing much blood. But Sander himself admitted that the national data that he used for his 2004 study were imperfect; thus his effort to obtain the records of the California bar, which has the most extensive set of law student information in the country. It can link individual students’ college GPAs, LSAT scores, law school grades, and bar scores going back to 1973. Researchers would be able to compare, with an extraordinary degree of precision, the bar-passage rates of students admitted into elite schools via affirmative action with the rates of those with similar qualifications who attended less elite schools. When Sander and his colleagues approached the bar’s leaders and statisticians in 2005 about collaborating on a study, they got an enthusiastic response.
Then a platoon of law school deans paid the bar a little visit. Suddenly, the bar changed its tune. It threw up obstacle after obstacle, claiming that the study was an “anti-affirmative-action” ploy and would violate student privacy.
Both objections were ludicrous. Sander’s research team included skeptics of his mismatch theory as well as affirmative-action supporters, all of whom just happened to believe that any theory should be subjected to rigorous empirical testing. Sander has invited his many other critics to get involved in the study as well. His project had the backing of leading social scientists. As for privacy, only the bar’s chief researcher—who has conducted many analyses of student performance in the past without incurring any objections—would have access to students’ actual records. The research would make the data anonymous so that tracing any individual’s records would be impossible for anyone else.
Nevertheless, the legal establishment’s assault on Sander’s project continued. A group of activist law professors argued that the study would lend undue importance to the bar exam. (Law students will undoubtedly be relieved to learn of the exam’s insignificance.) A UCLA law professor launched an e-mail campaign to minority lawyers in California, portraying the research as a frightening invasion of their privacy. After a hearing process that failed to give Sander’s team any opportunity to respond to the critics’ charges, the bar’s board of governors voted in November 2007 to reject the research proposal. Sander is now suing the bar, which is a government body, under California’s public-information laws.
The racial preference regime has thrived in deliberate secrecy and duplicity, but it is gradually losing its cover. Against all expectations, Sander recently convinced the University of California that it had a legal obligation to share its records on undergraduate students’ incoming qualifications and subsequent performance. Though this data set is more generalized than what Sander seeks from the bar, it will likely buttress his mismatch theory and expose lingering preferences at the university, in violation of a 1996 voter initiative outlawing them. The lawsuit against the bar remains pending, but Sander expects to start releasing results from the UC study this fall. They promise to be explosive.
Heather Mac Donald is a contributing editor of City Journal and the John M. Olin Fellow at the Manhattan Institute.