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LOS ANGELES — UCLA School of Law professor Richard Sander struck out for the second time Thursday in his attempt to get the State Bar to work with him on a study about affirmative action’s possible impact on black law students’ failure rates. And it’s extremely likely it will be three strikes and out today when the State Bar’s Board of Governors takes one last look at his request. Sander and his team, including Hastings College of the Law professor Vikram Amar, went before the board’s Committee on Regulations, Admissions and Discipline on Thursday to try to convince it that the bar’s Committee of Bar Examiners erred earlier this year when that committee rejected their request for historical data on past bar exam scores. The requested data included the race and academic credentials of each applicant but not their names. Sander wanted the information for further research to follow up on his 2004 study that suggested affirmative action might be responsible for black students’ high failure rates nationwide. Sander’s theory is that race-based preferences had opened the doors of elite law schools to minority students who were academically unprepared. As a result, he contended, there were far fewer black lawyers in 2004 than there would have been if more minority students had attended less elite law schools. Sander’s request got nowhere Thursday when the Committee on Regulations, Admissions and Discipline unanimously rejected the idea again. “As a public agency, we must provide opportunities to researchers to do what they do,” State Bar governor John Peterson said after Sander and his opponents — which included a large contingent of minority law students and recent graduates — made their cases. “On the other hand, the people testifying here [against the idea] have made legitimate complaints about their right to privacy.” The Committee on Bar Examiners had previously rejected Sander’s proposal by saying that applicants hadn’t authorized third-party use of their personal data. Sander and Amar tried to reassure Bar governors that the information would be kept confidential and that it would be handled only by consultant Stephen Klein — who does internal work for the State Bar as well as private consulting — and his immediate team. Both said there had been a lot of “fear and misunderstanding” that they had an agenda to use the information to undermine affirmative action. “The only thing to fear — to paraphrase Franklin Roosevelt,” Amar said, “is continued ignorance itself.” Gerald Reynolds, a black man who serves as chairman of the U.S. Commission on Civil Rights, which supports Sander, said the proposed study could help minority students. “If Professor Sander’s theory is accurate,” he said, “some of these minority students are being harmed. “We should not be in the position where we’re scared of data,” he added. Sander’s opponents said the issue was simple. Bar applicants hadn’t provided personal data about themselves for any other use than internal State Bar studies. In fact, Stanford Law School professor Michele Dauber argued, the federal Family Educational Rights and Privacy Act prevents third-party access to the records Sander wants. “This is true whether or not the information is handled by Professor Sander, Dr. Klein or anyone else,” she said. Several students or recent graduates testified that they never expected their personal data to be shared with others. Alina Ball, who identified herself as the only black female law student at UCLA for the upcoming 2008 school year, said a decision by the State Bar to release the information could damage future internal State Bar studies. It would provide a “powerful incentive,” she said, for future applicants to not release personal data. The full State Bar Board of Governors will hear the issue today. But, considering that most of the non-voting governors either attended Thursday’s committee meeting in person or by telephone, it’s unlikely they’ll overturn the decision. One State Bar official said Sander’s request likely won’t even get any debate.

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