In his 19 years as a law professor at the University of California, Los Angeles, Richard Sander has pondered a nagging question: Does affirmative action help or hinder blacks who want to become lawyers?
Two years ago, he published research suggesting that racial preferences at law firms might be responsible for black lawyers' high rate of attrition and difficulty making partner. He hypothesized that, in the interest of promoting diversity, law firms sometimes hired black lawyers that were under-qualified, and that when there was a "credentials gap" between black and white lawyers at a firm, black lawyers often failed.
The research stirred debate throughout the legal community, and Sander said he was surprised at the vehemence with which people attacked his motives. A former Vista volunteer, fair-housing activist and campaigner for Chicago's first black mayor, Harold Washington, Sander insisted he was trying to examine an important question.
Now the law professor has waded into another controversy. Sander says his goal this time is to examine whether law schools set up many affirmative action beneficiaries for failure by admitting them into rigorous academic environments in which they are ill-prepared to compete. He proposes to study almost 30 years of data on California Bar Association exam-takers. In the end, he hopes to explain why, as reported in a Law School Admissions Council study in the 1990s, blacks are four times as likely as whites to fail the bar exam on the first try.
The California Bar Association has refused to facilitate his probe. Citing privacy concerns, the association has denied him access to detailed demographic data collected from exam-takers since 1972. Many lawyers, scholars and diversity advocates have applauded the official action.
Sander's conclusions in the earlier study and a paper he wrote for the North Carolina Law Review in June 2006 "essentially argued that law firms should not hire black graduates," said Deborah Waire Post, a Harvard Law School graduate, professor at New York's Touro Law Center.
and co-president of the Society of American Law Teachers.
"What this suggests is that Richard Sander is not studying affirmative action or diversity policies; he is marshaling evidence to show that blacks do not belong in elite schools or elite firms," Post said.
She likened Sander's academic assessments of affirmative action to "the late 19th and early 20th century when this country was beset by 'scholars' and 'scientists' who constructed theories of racial inferiority to justify the subordination of African Americans."
From a tidy campus office crammed with the output of academia, Sander defends his proposed project as necessary to show that admissions and hiring preferences "hurt the very people they were intended to help."
He and fellow doubters of the efficacy of affirmative action asked the California Supreme Court in August to compel the state bar to turn over what Sander describes as "the perfect database." The bar records, which include age, race, gender, academic records and bar scores, nicely divide between the pre- and post-Proposition 209 eras, the 1996 California ballot initiative that prohibited state universities from considering race, ethnicity, gender or national origin in admissions.
Among those hoping to probe the bar data with Sander is Doug Williams, an associate professor of economics at the University of the South in Tennessee. He defends the project as necessary to test a "reasonable hypothesis" as to why there are racial gaps in law school graduation rates and bar passage.
Peter Scheer, executive director of the California First Amendment Coalition, joined Sander in his lawsuit against the California bar on grounds that the lawyer-licensing institution is a publicly funded government agency whose records should be open to scrutiny by legitimate researchers.
Scheer suspects that the bar's resistance is driven by fear of controversy and bureaucratic inertia.
"We see our job as getting the data and giving it to both sides" of the debate over the value and efficacy of affirmative action, said Scheer. "Politics should not block otherwise valid, even if controversial, academic research."
Nevertheless, he sees validity in the bar's concerns about confidentiality.
"They do need to be made comfortable, to be sure that the data is released in a way that makes it virtually impossible to link any information in it to any particular people," he said.
Holly J. Fujie, incoming president of the state bar, said Sander was denied access to the data because it had been solicited from bar exam-takers with assurances that it would be used only by the bar for purposes of ensuring the test's fairness.
Bar officials also harbor doubts that all study subjects could remain anonymous even if their names were excised. One woman who spoke against the research project at a bar hearing on the appeal pointed out that she was the only black woman in her law school class at UCLA so it would be obvious that she was the subject of any study conclusions referring to that demographic.
The Society of American Law Teachers' bar exam analyst, Andi Curcio, criticizes Sander's study subject for putting more value on first-time bar passage than it deserves.
"The bar exam as presently constituted is not a good measure of whether somebody is a competent lawyer," said Curcio, a law professor at Georgia State University. "It fails to account for a multitude of skills lawyers need, starting with the ability to actually research the law."
Rather than devoting resources to study affirmative action's influences on a dubious test of legal scholarship, academics should be working to create a more effective instrument than the multiple-choice bar exam for evaluating lawyers and their ability to practice, she said.
"Studying statistics tells you what but not how or why," said Veta Richardson, executive director of the Minority Corporate Counsel Association. If the purpose of Sander's research "is to take people and categorize them and point fingers and say affirmative action works for this one but not that one, I don't see any good purpose served."
Flawed as it may be, affirmative action has brought desirable results in diversifying the legal community, Richardson argues. Minorities and women account for about 25 percent of Fortune 500 general counsel, a five-fold increase in the 11 years since the association was founded to expand the hiring, retention and promotion opportunities for minority attorneys.
The storm of pique and controversy aside, Sander says his "mismatch theory" about the disparate fate of law school students admitted with racial preferences needs to be studied so more effective programs can be developed to ensure minorities graduate from the law schools to which they are admitted, are adequately prepared for the bar and will make partner apace with their generational colleagues in law firms.
Those goals are being impeded, he said, by the reluctance of bar data guardians to address a taboo subject.
"Affirmative action is the third rail, and there's just not the interest there to study it," Sander said. "I certainly underestimated the degree to which there exists such a strong affirmative action orthodoxy."