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Calif. Bar Denies Access to Bar Review Results to Law Professor

As I've previously expressed here and here, I'm deeply skeptical about UCLA law professor Richard Sander's studies that purport to show that law school affirmative action policies harm minorities in the long run because many minority students admitted through preferential policies are not academically prepared and do poorly in law school. And according to Sander, even those fortunate enough to win jobs at prestigious law firms because of their elite law school credentials eventually fail because they lack the intellect and grades to succeed. Still, I'm even more appalled by the California Bar's decision to deny Sander access to student data collected from past bar exams so that Sander can follow up on his earlier study.

According to this article (9/19/07), the California Bar denied Sander's request for the data this past June, asserting that bar applicants provided data on race believing that it would be used for studies related to the exam and not on broader studies concerning the impact of affirmative action on minority lawyers. But to Sander, the bar results are necessary to his research, because they are "a measure of what law students have actually learned." Sander says that his study can help track how affirmative action is negatively impacting not just bar passage but law school learning. 

Why is the bar afraid to release its data? If Sander's study shows that minorities do poorly on the bar exam, isn't that a matter that the California Bar would want to remedy? Moreover, even if statistics show a disproportionately poor performance, that doesn't mean that minorities have "learned less" in the law school. Most lawyers, particularly those who have attended elite schools (which focus more on theory rather than black letter law), would disagree with Sander's basic premise that the bar shows what lawyers have learned. Were that the case, you wouldn't have multimillion-dollar bar review operations that spend six weeks pumping students full of the black letter, jurisdiction-specific law so that they can pass the bar. Sander's study needs to include control factors, such as what percentage of students who passed the exam took bar review courses that, more than anything, account for the difference in passing and failing the bar.

Too many lawyers believe that the bar is the old standard and that passing a bar exam confers competency. Sander's proposed study, while designed to prove Sander's point -- that minority lawyers who benefit from affirmative action are less competent -- might prove the opposite: that the bar exam isn't an indicator of anything except a good bar review class, disciplined study habits and well-honed test-taking skills. Perhaps that is what the California Bar fears the most.

Posted by Carolyn Elefant on September 19, 2007 at 05:27 PM | Permalink | Comments (1)

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