UCLA School of Law professor Richard Sander stirred up a hornet's nest in 2004 with a study suggesting affirmative action might be responsible for black students' high failure rates on bar exams around the country.
Three years later, an undaunted Sander is poking the beehive again. This time he's accusing the State Bar of California of caving in to liberal activists by refusing to work with him in possibly proving his unpopular premise once and for all. Sander said he had asked the State Bar to OK research using its historic data on past bar exam scores, including the race and academic credentials for each applicant, though not individual names.
"We know this is a controversial issue, and I was prepared that they might turn us down," Sander said last week. "But I was shocked at the way they did it. ... It suggests that backers of current affirmative action programs are afraid of the facts."
The State Bar's Committee of Bar Examiners rejected Sander's request in late June, saying bar applicants offer information like their race believing it will only be used for studies related to the exam.
Sander said he has thought about asking for reconsideration. He has also thought about approaching a state legislator for help and said last week that two major California law firms, which he declined to name, are weighing whether to file a pro bono lawsuit in an attempt to force the State Bar to comply.
Some of Sander's strongest support so far has come from the Washington, D.C.-based U.S. Commission on Civil Rights, a bipartisan organization that collects and studies information on discrimination.
"We believe that it is important to encourage research on this data in order to better understand the important questions raised by Dr. Sander's research," five of the eight commissioners wrote in a letter to State Bar President Sheldon Sloan before the rejection. "Detailed data in the public archives has an invaluable role to play in advancing knowledge and reform in this area."
The commission went a step further last month when it released a report recommending further research on racial disparities in law schools. In that report, the commission specifically called on Congress and the individual states to require bar officials to release the type of information Sander and his associates are seeking.
"What professor Sander has shown is extremely important," said Gail Heriot, a commission member and a professor at the University of San Diego School of Law. "We can't say for sure whether or not his conclusions are correct. That will take more study."
In his 2004 study published in The Stanford Law Review, Sander used bar exam failure and passage rates obtained for a national study by the nonprofit Law School Admissions Council to assert that race-based preferences had opened the doors of elite law schools to minority students who were academically unprepared. As a result of that "mismatch," Sander postulated, there were about 8 percent fewer black attorneys in 2004 than there would have been if law schools had employed color-blind admissions practices.
Sander's study concluded that black students who attended less-elite law schools -- for which they were more academically fit -- were half as likely as their counterparts at prestigious law schools to fail the bar exam on their first attempt.
Sander concedes that his findings are even troubling to himself.
"I've been a civil rights activist most of my life," he said. "I have a son who is African-American. So I deeply believe in the idea of fostering integration and greater equality of outcomes in our society. But I've got grave doubts that affirmative action in higher education is the way to do that."
Many civil rights groups and some academics savaged Sander's findings, calling them statistically flawed and simplistic. For example, Bill Kidder, special assistant to the vice president for student affairs at the University of California's Office of the President, this year criticized Sander for limiting the research to bar exam candidates and excluding law students who don't even graduate.
Even Sander agreed his study wasn't conclusive, so he and three other professional associates asked the State Bar of California for help. Sander said they only wanted the State Bar to use its data to test his hypothesis, but State Bar documents -- and outside legal scholars -- have characterized it as a request for release of information to Sander and his colleagues.
In their request, first pitched about a year ago, Sander -- along with Stephen Klein, senior partner in the consulting firm GANSK & Associates; law professor William Henderson of Indiana University; and economics professor E. Douglass Williams of Sewanee University in Tennessee -- said failure and passage rates alone don't provide a complete picture. Vikram Amar, a professor at Hastings College of the Law who is also participating in the study, joined Sander, Henderson and Williams in protesting the State Bar's denial.
"Bar scores are a measure of what law graduates have actually learned," Sander and his associates told State Bar officials. "This allows one to study not only how the 'mismatch' might affect bar passage, but also how it might affect actual learning."
State Bar admissions personnel devoted several months to weighing the pros and cons of the request.
But earlier this summer, the Committee of Bar Examiners, which oversees the California exam, turned Sander down, saying test applicants' personal data isn't collected for use by third parties.
"Applicants are advised that gender and racial/ethnic data are collected for the purpose of studies conducted by the committee as it determines are necessary to ensure the validity and reliability of the examination process," Gayle Murphy, the State Bar's senior executive for admissions, told Sander and his cohorts in a July 31 letter. "Applicants are not advised that the personal information they provide may be shared with others for purposes unrelated to the bar examination."
(Three of the 12 committee members present for the meeting voted to release the information, but those three either declined to comment or didn't return a telephone call for this story.)
In a phone interview last week, Murphy insisted the committee hadn't knuckled under to political pressure from affirmative action advocates.
"We're not against people doing research," she said. "And nothing prohibits [Sander] from contacting the law schools directly or even the students themselves."
The State Bar has the backing of Michael Yaki, one of two members of the U.S. Commission on Civil Rights who dissented from last month's commission report. A partner in Jeffer, Mangels, Butler & Marmaro's San Francisco office, Yaki accused the commission of being dominated by Republicans eager to eliminate all race-based programs.
"To follow the reasoning of the majority," Yaki wrote in his dissent, "we might as well hang a sign saying 'blacks and other minorities need not apply' on the doorways of Yale, Harvard and other elite schools."
In a telephone interview last week, Yaki applauded the State Bar's decision not to cooperate with Sander.
"Aside from the fact [the information would] be misused through the usage of poor statistics, poor methodology and even more suspect analysis," he said, "it is the State Bar's prerogative to decide whether and to whom it should disclose data on people who pass the bar."
Equally opposed to Sander was the Long Island-based Society of American Law Teachers, which called his proposed study a "radical departure" from the bar exam's stated purpose of measuring minimum competence to practice law.
"If it turns out that individual bar exam scores are used to indicate that minority applicants have not 'learned the law' as well as their white counterparts at similar schools," co-Presidents Eileen Kaufman and Tayyab Mahmud wrote, "then the California State Bar may unwittingly contribute to the misperceptions already confronting minority bar applicants and attorneys."
Sander said last week that the State Bar's rejection has essentially killed any further study because California is the only state that has routinely compiled detailed student information for a quarter of a century.
Last month, Sander sent a letter to Murphy accusing the organization of not being forthright about its reasons for rejecting his request.
He pointed out that in 1994 and 1995, the State Bar released the names of students who passed or failed the bar exam for studies by the Law School Admissions Council and the American Bar Foundation.
"All of this," he wrote, "suggests the strong possibility that the actual reason for rejecting our request is that our proposed study is 'controversial.'"
In response, Murphy told The Recorder last week that law school students signed individual releases for those studies and that several state Supreme Courts supported that particular research. Those studies differed in that they didn't broach race or affirmative action, only bar passage rates.
The Committee of Bar Examiners' decision disappointed some legal scholars, who thought a study on black students' exam failure rate had merit. Earlier this year, 22 law professors from around the country sent a letter to the State Bar supporting Sander's request, saying his study could let law schools know whether current practices hurt black students' chances.
John Steele, a special counsel in Fish & Richardson's Redwood City, Calif., office who has taught law school courses on the legal profession, said Monday that he stands by a letter he sent the State Bar earlier this year in support of Sander's study.
"I can assure you from firsthand experience," he wrote in that letter, "that the problem in understanding and combating exclusion is the absence of careful statistical studies, not the existence of them.
"In the absence of well-constructed studies based on sound data," he added, "ignorance reigns."