Richard Sander

Ed Whelan at National Review writes about Fisher v. Texas, the “affirmative action” case pending before the U.S. Supreme Court. He cites research reported in two amicus briefs submitted by Richard Sander and Stuart Taylor Jr., and U.S. Commission on Civil Rights members Gail Heriot, Peter Kirsanow, and Todd Gaziano (emphasis in original):

“It is, of course, not surprising that anyone who is overmatched by his academic environment would tend to do poorly compared to others who are well matched for that same environment. (Sander and Taylor note that the ‘median black receiving a large admission preference to an elite law school … ends up with grades that put her at the 6th percentile of the white grade distribution.’)

“But what recent research has discovered, according to the two amicus briefs, is the more striking finding that, across various measurements, the recipients of racial preferences perform worse than similarly qualified minority students attending less elite institutions. For example, mismatched students transfer at a higher rate out of science majors, are less likely to pursue a doctorate, are less likely to become college professors, have lower graduation rates from law school, and have much lower success rates on bar exams. Again, in each case the comparison is to similarly qualified minority students attending less elite institutions, so the broader implication is that racial preferences affirmatively harm many of their intended beneficiaries.”

That an academic mismatch causes problems is common sense, but it’s important to quantify and number-crunch for skeptics. In 2004, UCLA law professor Richard Sander hypothesized that racial preferences in law school resulted in fewer black lawyers, as blacks admitted under lower standards were placed in schools that exceeded their preparation. Consequently, they failed the bar at higher rates. Sander requested racial and ethnic data from the California bar, and the bar refused to release the data. After subsequent courts agreed with the bar, a three-judge panel of the First District Court of Appeal ruled that the public has a right to access state bar data that doesn’t reveal private information.

In June, the National Law Journal interviewed Sander about the case. The mismatch theory is a legitimate line of attack against preferences.

Addendum: Roger Clegg links to more amicus briefs.

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Earlier this week I blogged about the recent ruling in law professor Richard Sander’s case. A three-judge panel of the First District Court of Appeal ruled that the public has a right to access state bar data that doesn’t reveal private information. Previous courts had held that the bar was not legally required to turn over the data because of privacy concerns.

An excerpt of Sander’s interview with The National Law Journal:

NLJ: Were you surprised that you faced so much pushback when you requested the data?

R.S.: No. I think our hope was that we could get the bar to sign on to the study under the radar, and that if opposition materialized, there would be enough key people in leadership positions who would see a value in doing the research. I think the executive director and the head of bar admissions saw no upside for them in doing the research once the opposition emerged.

NLJ: What was your reaction when the lower court ruled against you last year?

R.S.: We thought Judge Karnow was a good judge. We thought he was fair. We were always pretty confident that we had the better argument on the merits. Judge Karnow agreed with us that the case should be bifurcated, meaning that the first set of issues to be litigated was whether the bar was subject to disclosure. And then, if we won on that, we would go to the second set of issues, which dealt with whether our particular request could be formulated in a way that would protect the privacy of bar takers and would not create an undue burden on the bar.

That was a good decision, I think, because the second set of issues — the one we will basically be undertaking now — are very fact-intensive. It didn’t make any sense to fully litigate those issues until the right of access was established. We always thought that right of access was going to be the toughest issue. We knew there was limited precedent covering agencies that were not covered by the California Public Records Act.

We had these two arguments: the constitutional right of access and the common law right of access. We thought those were both strong, but not aces in the hole. Judge Karnow’s position was not an untenable decision, but I think we did feel that his opinion did not fairly consider many of the arguments we put forth. We were optimistic of reversal on appeal. We were surprised and pleased to get a unanimous reversal. That’s a great victory.

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Last week I told you that a three-judge panel of the First District Court of Appeal heard arguments in UCLA law professor Richard Sander’s quest to obtain racial and ethnic data from the California bar exam applicants. According to Law.com, Justice Stuart Pollak said, “The State Bar is providing a vital function here, which is of considerable public import and impact. Why shouldn’t it be something open to public review?”

Sander argued that black law school students admitted under race-based preferences attended schools that exceeded their levels of preparation, and they failed the bar exam at higher rates. The state bar refused access to the information on privacy grounds, although Sander said no individual would be identified, and courts ruled in the bar’s favor. The tide has turned. Last Friday, the panel made a ruling on the case. An excerpt from the opinion (emphasis added):

“The trial court concluded that the common law right of access to public documents is no broader than the right of access to adjudicatory court records based in the First Amendment to the United States Constitution and, therefore, does not authorize public access to the Bar’s records sought by appellants. The court further found article I, section 3(b) of the California Constitution inapplicable to the records request.

We hold this analysis was erroneous. The common law right of access to public documents is broader than the First Amendment right of access to adjudicatory court documents. We therefore reverse the judgment and remand the case to the superior court to determine whether the Bar must produce the requested information after balancing the applicants’ interest in confidentiality and the burden this request imposes on the Bar against the strong public policy favoring disclosure. The trial court is best suited to craft any qualifications to an order for production that can accommodate these concerns if possible.”

Sander’s case goes back to the California Superior Court for San Francisco County. This ruling is a victory of sorts, but it gives the trial court a lot of latitude to determine whether to compel the bar to release the data. The court could do just as the appeal panel said (balance interests of confidentiality and the burden of the request) and still rule against Sander.

On the other hand, the court can’t cite privacy and be done with it.

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UCLA law professor Richard Sander continues his quest to obtain racial and ethnic data on California bar exam applicants. Last week, a three-judge panel of the First District Court of Appeal heard arguments, and Law.com reports that “two justices… appeared ready to draw opposite conclusions. The third didn’t tip his hand.”

Sander concluded in a 2004 study titled “A Systemic Analysis of Affirmative Action in American Law Schools” (PDF) 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. He requested racial and ethnic data from the Committee of Bar Examiners, and the committee turned down his request and cited privacy concerns, although Sander said that no individual would be identified.

The state’s highest court denied his request to compel the committee to produce the data and recommended he re-file in the appropriate court. He did, and the California Superior Court for San Francisco County ruled that the state bar was not legally obligated to release the data.

First District Court of Appeal Justice Stuart Pollak said, “The State Bar is providing a vital function here, which is of considerable public import and impact. Why shouldn’t it be something open to public review?”

Indeed. We’ll keep you posted about the panel’s decision.

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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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Civil Rights Commission Confirms Mismatch Theory

January 3, 2011

Gail Heriot, a member of the U.S. Commission on Civil Rights, penned an op-ed about how “affirmative action” actually harms aspiring college students. According to a commission report released last month, affirmative action, or lowered standards for minorities, hurts a students chances of becoming a doctor, scientist, engineer. Sounds intuitive, doesn’t it? An excerpt of [...]

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Court Rules Against Richard Sander

April 1, 2010

In 2004, University of California at Los Angeles law professor Richard Sander released a study called A Systemic Analysis of Affirmative Action in American Law Schools (PDF), in which he contends that law school race-based preferences result in fewer black lawyers, because blacks admitted under these conditions are placed in schools that exceed their levels [...]

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New Study on Preferences Mismatch Theory

April 22, 2009

Richard Sander has documented the mismatch effect that occurs when blacks are admitted to selective schools through race preferences. He found that law students admitted under preferences tended to receive lower grades and pass the bar exam at lower rates. Sander posits that without preferences, blacks would be better matched to their schools. Four Duke [...]

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Race Preference Contortionists

March 26, 2009

After you read Affirmative-Action Programs for Minority Students: Right in Theory, Wrong in Practice (excepted at TaxProf Blog), you may come away as amazed as I was. Proponents of race preferences contort themselves into strange positions to justify the practice and avoid stating the obvious. The article is adapted from the four authors’ new book, [...]

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California Supreme Court Denies Richard Sander’s Request

September 24, 2008

In a 2004 study called A Systemic Analysis of Affirmative Action in American Law Schools (PDF), University of California law professor Richard Sander posited that law school race-based preferences result in fewer black lawyers, because blacks admitted under these conditions are placed in schools that exceed their levels of preparation. As a result, they failed [...]

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