Americans have been debating the fairness and efficacy of racial preferences
in college and graduate school admissions for more than 30 years. Now a UCLA
professor is seeking to test his hypothesis that affirmative action programs
actually hurt the career prospects of minority law school graduates. But he
has been hampered in his research by the indefensible failure of the State
Bar of California to provide the statistics he needs.
The professor, Richard H. Sander, has requested data about the performance
of white and minority law school graduates on the bar examination, along
with information about the schools they attended and their grades. In
resisting his request, bar officials cite the need to protect the privacy of
test takers and to honor an agreement that test material will remain
confidential. At the same time, some defenders of affirmative action have
argued against releasing the data because they think Sander's project could
have only one purpose: to discredit the idea of racial preferences.
The privacy and legal arguments strike us as spurious, a view shared by the
executive director of the California First Amendment Coalition, which has
joined Sander and his colleagues in asking the state Supreme Court to order
the release of the information. Sander has promised that no individual student
would be identified by the statistics, which would break down performance by
It's also unfair to accuse Sander of seeking to dismantle racial preferences.
True, his hypothesis is that affirmative action students are disserved because
they derive less benefit from an elite law school than students who meet the
usual admission standards. This is the "mismatch" theory, which
suggests that students who are weaker than their classmates will often do
better academically -- and on the bar exam -- if they attend a
The mismatch theory may be mistaken. But suppose it were found to be valid?
That wouldn't necessarily lead to the abolition of racial preferences. Another
result might be the strengthening of mentorship and other programs to help
less-well-prepared students achieve at higher levels.
An additional objection to Sander's project is that good marks on the bar exam
don't guarantee success in the practice of law. Perhaps so. If the exam does a
poor job of measuring the credentials of lawyers, it ought to be revised. But
that has no bearing on Sander's request.
In 2003, the U.S. Supreme Court ruled that carefully tailored affirmative
action programs didn't violate the Constitution. California, when it approved
Proposition 209 in 1996, exercised its right under that decision to outlaw
racial preferences in public educational institutions. The debate over
affirmative action continues.
Regardless of what we think of Sander's hypothesis, he should be given the
data he seeks. Defenders of affirmative action should not fear a serious
examination of how well it's working.