The Last-Ditch Battle to Protect Racial Preferences in California

California voters made racial preferences illegal by passing Proposition 209 in 1996, but many university officials have ignored the law, especially at the state’s top law schools. Among such officials, it is a deeply ingrained belief that social justice demands measures to close statistical gaps between “underrepresented” groups (particularly blacks and Hispanics) and “overrepresented” groups (which means whites and Asians).

In law school admissions, that means accepting some applicants from favored groups who otherwise would be rejected, and therefore must attend a less prestigious law school or pursue some other career. It also means, of course, that some applicants with higher scores on the Law School Admission Test (LSAT) and superior undergraduate records must be rejected to make room for them.

Related: UC Berkley and UCLA Law Schools: Scofflaws?

Whether it makes sense to admit law students at least partially because of their ancestry has long been a matter of dispute.  Even if you grant the premise that society would be better off if there were more blacks and Hispanics in the legal profession, do we achieve that goal by racial preferences in law school admissions? Economist Thomas Sowell, for one, has argued for decades that such preferences are counterproductive, but Sowell’s views are rejected by mainstream academics because he favors free markets and government minimalism.

Then in 2004, UCLA law professor Richard Sander published an article in Stanford Law Review, “A Systemic Analysis of Affirmative Action in American Law Schools,” that could not be ignored because Sander was a liberal in good standing and his work appeared in a top-notch professional publication. Sander’s argument was that, based on the data he had been able to get from the Law School Admissions Council, affirmative action (i.e., racial preferences for certain minority groups) actually led to there being fewer lawyers from those groups.

The reason was that most of the preferred students were not academically competitive in the law schools to which they’d been admitted. They tended to drop out, rank low in their law school classes and passed the state bar exam at lower rates than did minority students who had attended less prestigious law schools. Sander wrote, “Most black law applicants end up at schools where they will struggle academically and fail at higher rates than they would in the absence of preferences.”

Sander had touched a raw nerve. Defenders of the affirmative action orthodoxy sprang to attack Sander’s research (e.g., this article by David Chambers and other law professors) and Sander quickly took them on here.

In 2012, Sander continued his apostasy by publishing a book (co-authored by Stuart Taylor, Jr.) entitled Mismatch: How Affirmative Action Hurts Students It’s Supposed to Help and Why Universities Won’t Admit It. The book made a strong case against racial preferences, but Sander was still working on his argument. In particular, he wanted to see the law school and bar passage data held by the State Bar of California.

His request, however, was denied on the grounds that releasing such information could lead to invasions of privacy for individuals who had attempted law school and the bar but not succeeded. Sander replied that he did not want personal data and would accept the information with all personal identification redacted Still the bar refused.

Related: Why Was Professor Amy Wax Punished?

Why Was Professor Amy Wax Punished? So Sander went to court against the State Bar, filing suit in 2008. After extensive litigation, in 2013, the Supreme Court of California ruled in his favor in Sander v. State Bar of California. The court was persuaded that “the public has a legitimate interest in whether different groups of applicants, based on race, sex or ethnicity, perform differently on the bar examination.” Unfortunately, rather than ordering the State Bar simply to release the data to Sander, it chose to let the State Bar decide how to disclose the data while preserving the privacy of all individuals. The State Bar continued to drag things out, using dubious concerns over privacy to delay turning over the data.

At the same time, the State Bar chose to continue its fight to keep the effects of racial preferences hidden in another venue – the state legislature. The State Bar has a lot of clout in the legislature and in 2016 succeeded in getting it to pass a bill providing that the sort of information Sander was seeking “shall be confidential and shall not be disclosed pursuant to any state law.”

Based on that legislative change, the judge in the ongoing case, Mary Wiss, ruled in November 2016 that Sander was not entitled to the bar data, declaring that disclosure would violate state law and would be “an unwarranted invasion of personal privacy.” Moreover, she maintained that the information sought by Sander would have “minimal or no value” – a claim contrary to the finding of the Supreme Court.

But that was not the end of the matter. In October 2017, the California Legislature again modified the law, changing the Business and Professions Code to make access to aggregate statistical data such as bar passage possible. The impetus for that change came from the state Supreme Court itself, which had expressed its view that the Bar needed to do more research into the question of falling pass rates on the exam. With that pressure, enough members of the legislature were persuaded to change the law so that research into bar passage would not be stymied.

With that roadblock removed, Sander has taken his case to the state court of appeals, seeking to overturn Judge Wiss and order the State Bar to comply.

In that regard, several amicus briefs have been filed.

Pacific Legal Foundation’s brief points out the obvious truth that “race-preference advocates criticize Professor Sander’s research for not having an appropriate data set, while at the same time they try at all costs to restrict his access to that data.” In other words, the State Bar has acted in bad faith, using every trick in the legal book to keep Sander (and the public) from seeing that racial preferences have adverse effects.

The Pacific Legal brief drives that point home further by noting that the trial court was laden with witnesses who said they feared “group stigmatization” if the law school and bar passage data were made public. Is that speculative result at all likely? No — minority lawyers who have passed the bar have nothing to fear from the finding that some of those who didn’t pass were harmed by being mismatched at law school.

Another amicus brief has been submitted by the National Association of Scholars. It counters the over-hyped privacy concerns of the State Bar. “Social science research of the kind proposed by Appellant Sander and the First Amendment Coalition,” it states, “represents standard, indeed commonplace practice furthering the public interest while employing established methodologies that minimize the risk to privacy.”

And, reflecting the California Supreme Court’s concern over law school admissions and bar passage rates, the brief says, “Struggling to maintain financial stability amid falling enrollments, many law schools, controversially, have dug far more deeply into applicant pools. Bar-pass rates declined, at least in part a result of desperate admission standards…. That link raises the ugly specter, no less real, of students being exploited for tuition money when law schools know that their application data portend significant disappointment. Further, with law schools simultaneously under pressure to enhance diversity and access to legal education, the risk of the afore-described exploitation is compounded by its discriminatory impact.”

With those developments, it seems likely that the State Bar has finally run out of time. Its stonewalling tactics bought it ten years to shield from scrutiny its social engineering scheme of admitting marginally qualified minority students.

Members of the California State Bar and officials at top law schools in the state no doubt believe that they’re doing something good – something to advance “social justice” – by (as they see it) helping students from “underrepresented groups” get into the best law schools. But they would be wise to heed the words of Thomas Sowell, who has written, “Before you can be a partisan of the poor, you must first be a partisan of the truth.” If they really want to help students from “underrepresented” racial groups, they should first find out if they are actually doing them harm.

The shame is that State Bar officials have worked so long and hard to prevent inquiry into the consequences of race preferences in law school admissions.

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