Richard Sander

The National Law Journal reports that the State Bar of California believes U.S. News & World Report should take into account a law school’s percentage of brown faces on campus when compiling its annual list of overall law school rankings. The publication already compiles a separate diversity ranking list.

A school’s quality assessment accounts for 40 percent of the score, selectivity accounts for 25 percent, placement success accounts for 20 percent, and faculty resources account for 15 percent. The bar proposes to cut the quality assessment percentage in half and reduce the others to add a new diversity category that accounts for 15 percent of a school’s score.

I predict the bar’s proposal, if US News accepts it, won’t impact school choices as much as the bar thinks it will. People know which law schools are considered the best. Even if a particular school drops out of the top 10 for “too little diversity,” it won’t dampen the quality of the education received or deter prospective students from applying. In fact, too little diversity might appeal to some prospective students. Unintended consequences can be tricky.

But good luck with that!

Incidentally, the Committee of Bar Examiners turned down UCLA law professor Richard Sander’s request for historical data on past bar exams, citing privacy concerns. Sander had released a study called A Systemic Analysis of Affirmative Action in American Law Schools (117 pages in PDF), in which he concluded that law school race-based preferences resulted in fewer black lawyers, as blacks who are admitted under these conditions are placed in schools that exceed their levels of preparation. As a result, they fail the bar exam at higher rates.

Sander asked the state’s highest court to compel the committee to release the data. The court denied his request, also on privacy grounds, and recommended he re-file in the appropriate court. Last year, the California Superior Court for San Francisco County ruled that the state bar was not legally obligated to release the data.

The California bar believes the percentage of racial minorities enrolled in a law school is important enough to affect that law school’s national rankings, but it refuses to share the percentage of those minority students who pass the bar exam.

Privacy is a legitimate concern, although Sander said no individual would be identified. But did you know that even the left-leaning Los Angeles Times believes the California bar should release the data? The editorial is a three-year-old thing to behold. An excerpt:

“The [state bar's] privacy and legal arguments strike us as spurious, a view shared by the executive director of the California First Amendment Coalition, which has joined Sander and his colleagues in asking the state Supreme Court to order the release of the information. Sander has promised that no individual student would be identified by the statistics, which would break down performance by law school.

“It’s also unfair to accuse Sander of seeking to dismantle racial preferences. True, his hypothesis is that affirmative action students are disserved because they derive less benefit from an elite law school than students who meet the usual admission standards. This is the ‘mismatch’ theory, which suggests that students who are weaker than their classmates will often do better academically — and on the bar exam — if they attend a less-competitive school.

“The mismatch theory may be mistaken. But suppose it were found to be valid? That wouldn’t necessarily lead to the abolition of racial preferences. Another result might be the strengthening of mentorship and other programs to help less-well-prepared students achieve at higher levels.

“An additional objection to Sander’s project is that good marks on the bar exam don’t guarantee success in the practice of law. Perhaps so. If the exam does a poor job of measuring the credentials of lawyers, it ought to be revised. But that has no bearing on Sander’s request.”

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