Bar exam scores
Later this week, the State Bar of California’s board of governors will consider whether its unique archives of bar outcomes for more than 100,000 bar-takers may be used to study the “mismatch effect” � the theory that law graduates perform worse on the bar when they attend law schools where their credentials are far below those of their classmates. Put this way, the proposed inquiry sounds rather arcane, but it has become perhaps the most controversial study about lawyers and legal education in recent history.
Why is this project � which the four of us helped originate � so controversial? Because it proposes to touch the “third rail” of academic politics: race and affirmative action. The use of substantial racial preferences, some commentators believe, explains much of the very large gap in bar passage rates between blacks and whites. The proposed study would make possible a wide range of analyses of unprecedented precision, allowing us to examine many possible effects of racial preferences in law school (and the effects of Prop 209, California’s 1996 ban on preferences in public universities).
This has given rise to two debates: a real one and a false one. The real debate, which rarely surfaces in public, concerns whether a careful study of the effect of racial preferences is worth its potential costs. If the mismatch theory is confirmed, and current preference policies are shown to lower black and Hispanic bar passage rates, will this lead to a general reaction against racially inclusionary policies? Will minorities be effectively shut out of elite law schools? We recognize the concern, but think the danger should not deter investigation. Support for diversity is deeply rooted in academia, particularly among legal educators. If the mismatch effect proves to be serious (a study outcome some of us doubt), there are many possible solutions: better academic support in law school, the modification but not elimination of preferences, or stronger measures to address the underlying causes of the black-white test score gap. We are confident that, if the data show genuine mismatch problems, the discussion of solutions will be broad and inclusive.
Those of us organizing the California Bar study are generally moderate to liberal Democrats; among us we have dozens of years of public service devoted to racial equality and integration. All of us are sympathetic to the goals of affirmative action. But we also strongly believe that any social policy must be held accountable, and there is a growing sense � starting with the fact that only one-third of blacks entering law school now graduate and pass the bar on their first attempt � that the legal academy needs to examine all the possible causes of racial disparities on bar outcomes. Hiding and ignoring potentially difficult facts is illiberal, and should not be an option.
Nor should we be diverted by a “false debate” about our proposed study. The opinion piece by Cheryl Harris and Walter Allen of the University of California at Los Angeles epitomized this false debate, which seeks to persuade the California Bar not to cooperate with research on this issue by attacking the ethics, competence or logic of the study or its proponents. Almost every sentence in their op-ed is inaccurate or misleading. (See www.law.ucla.edu/sander/NSF/HarrisAllen.pdf for a point-by-point examination of the Harris-Allen claims.) The National Law Journal could not spare the space for us to correct all of these misstatements, but here are two key matters of record:
• The proposed California study does not require the disclosure of any confidential data to anyone. We have been clear from the start that the bar’s own consultants, who maintain the bar’s data archives, would retain the data and perform the analyses we propose. Our reports would examine large cohorts, not individual results or anything close to it. Bar officials would review any report before its release to guarantee that the anonymity of both bar-takers and law schools is protected.
• Our study is carefully grounded in social science research and methods. One member of our study group, Dr. Stephen Klein, is the pre-eminent national analyst of bar exams and their internal validity. Seven leading legal empiricists, and dozens of other scholars, have written to the bar endorsing our study. Although the National Science Foundation was unable to provide us with funding, a majority of its outside reviewers supported it, often in the most glowing terms possible.
Shielding publicly held data, avoiding accountability and refusing to ask hard questions � these are always bad ideas. They are especially unworthy of the legal academy and the legal profession.
Bill Henderson is professor of law at Indiana University; Vik Amar is professor of law at the University of California Hastings; Doug Williams is chair of economics at the University of the South; and Rick Sander is professor of law at the University of California at Los Angeles.