Are We About to Get a Peek at the Impact of Affirmative Action?

By William Peacock, Esq. on December 24, 2013 | Last updated on March 21, 2019

Professor Richard Sander of the University of California Los Angeles calls it the "mismatch theory." He's written a law review article, a book, and an article for The Atlantic about the subject -- how affirmative action supposedly sets up minorities to fail by placing them in schools that are too rigorous for them to handle.

His study, unsurprisingly, was not met with open arms. Critics complained that he lacked sufficient data to make the conclusions asserted. His response was to go to the one place that has all the data he'd ever need: the California State Bar.

Except they said no. Until the California Supreme Court, last week, said yes.

Sander: Unparalleled Database

Bar exam scores. LSAT scores. Race and ethnicity. Law school grades (though the court notes that the state bar stopped collecting GPAs a few years ago).

The State Bar has more data at its disposal than Sander could ever hope to find elsewhere, especially since those bar exam scores aren't made public. (California has a pass/no pass sort of system). Sander called the resource "unparalleled" after the court's decision last week.

"Having access to this large database is just so enormously valuable. This is a big breakthrough," he told The Associated Press.

State Bar: Privacy, Confidentiality Promise

Obviously, mass disclosure of tens of thousands of individuals' grades, test scores, and ethnicity reeks of privacy violations. The State Bar argued that it had promised to keep the data confidential, and therefore, it was not a public record.

Sander, for his part, offered to pay for the costs of redacting and clustering the data (grouping individuals by date range or ethnicity to preserve anonymity) but the state refused.

Calif. Supreme Court: Public Records

After balancing the public interest in the data against the privacy considerations, the court sided with Sander, in part:

"The public does have a legitimate interest in the activities of the state bar in administering the bar exam and the admissions process. In particular, it seems beyond dispute 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 and whether any disparities in performance are the result of the admissions process or of other factors."

Of course, there's still the privacy issue, and since the lower courts decided the issue without a trial, the high court remanded the case for consideration of whether Sander's proposed remedies would be adequate to protect the confidentiality of the bar applicants.

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