Race data for bar admissions research stays under wraps

A researcher who wants historical data on the background of applicants for the California bar exam to study the effects of affirmative action on law students was turned down last month when bar governors said they were obligated to protect the students’ privacy. The board of governors unanimously backed its Committee of Bar Examiners, which months ago rejected the request by UCLA law professor Richard Sander.

Sander

Sander and his team want the data to test his controversial “mismatch theory” that race-based preferences permit minority students to attend law schools for which they are academically unprepared. The upshot, he believes, is that they learn less, are less likely to graduate and are almost twice as likely to fail the bar exam. His team is seeking LSAT scores, race, gender, law school, grades for law school and undergraduate study and bar exam scores.

But at a hearing last month crowded with law students and young lawyers who oppose the release of their data, the bar’s Committee on Regulation, Admissions and Discipline agreed with the bar examiners and voted 7-0 to withhold the data. The full board voted unanimously the next day.

Alan Yochelson, chair of the bar examiners panel, said the committee’s decision was “not based on the merits of affirmative action but on a consensus that applicants did not provide their data . . . for study by a third party not related to the bar.” While the committee has a history of doing research related to the exam and continually evaluates the exam for fairness, it cannot make public applicant information without individual signed releases, he said.

“The data would be of benefit to the public regardless of what it points to,” said public member George Davis. But, he added, forms signed by law students when they register with the bar “promised confidentiality” and the bar must uphold its guarantee of privacy.

Several students said they were either the only minority or one of a handful in their class, so information about them could be easily identified. “Our numbers are too small to protect our information,” said Alina Ball, the only black female in UCLA’s law school class of 2008, who also said releasing personal data would be an incentive for future applicants to keep such information private. And, she worried, “How far will disclosure go?”

Stanford Law School Dean Larry D. Kramer sent a letter to the board explaining that schools are bound by the federal Family Education Rights and Privacy Act (FERPA), which both provides strict protection of student records and establishes rules governing the disclosure of such data. “I believe that the use of these records envisioned by the Sander team would violate FERPA,” Kramer wrote.

He added that the request for access to the information by the Sander team is “flatly inconsistent with the understood conditions under which bar applicants provided it.”

In addition, human subject research is governed by other federal law that requires review by an Institutional Review Board (IRB). “Our objection is not out of fear the research will expose an inconvenient truth,” said Cheryl I. Harris, a professor at UCLA law school. “The issue is how it is to be done.”

Opponents of releasing the data said specific written consent from study participants is required for Sander’s research to go forward.

Sander, however, said the discussion of his proposed study was full of misconceptions: no data will be made public and no student will be identifiable, he said. He called the FERPA and IRB arguments “complete red herrings.”

Vikram Amar, a professor at the UC Davis law school and a member of Sander’s team, said he does not believe the mismatch effect is as strong as his colleague, “but it raises substantial questions.” He disputed the critics’ belief that the research group has an agenda and added the issue of confidentiality to the list of red herrings.

“If you screen out the noise,” Amar said, “the only thing to fear (to paraphrase Franklin Roosevelt) is continued ignorance itself.”

Gerald Reynolds, chair of the U.S. Commission on Civil Rights, also spoke on Sander’s behalf, arguing that if his theory is correct, “some minority students are being harmed. If that’s true, we need to minimize the disparity in bar pass rates.”

He characterized the issue as one of consumer protection and said the research would provide valuable information to law schools and bar associations.

“We should not be in a position where we’re scared of the data,” Reynolds said. “We should have the courage to allow the researchers to take a look.”

Sander said after the vote that he was disappointed “but not surprised. We will pursue our legal options.”