Do affirmative action admissions policies at the nation's elite law schools cruelly ensure that many black students with more modest academic preparation will be washed out of the competition—and maybe out of a legal career altogether—while they might have succeeded if left to enroll at less demanding schools?

Researcher Richard Sander thinks so, and as Heather Mac Donald reports in City Journal, his studies show a troubling disparity of actual law school performance.

Almost all black students are admitted to law school with drastically lower college and LSAT grades than those of white and Asian students. After their first year of legal education, 51 percent of blacks are in the bottom tenth of their class; two-thirds are in the bottom fifth. Blacks are four times as likely as whites to fail the bar exam on their first try. Sander has drawn two conclusions from these data, first published in 2004: first, that blacks’ low qualifications entering law school predict their lagging performance in school and on the bar exam; second, that there would be more black lawyers if schools stopped extending preferences to black students—because these students would learn more in schools that matched their capabilities.

Pursuing these hypotheses, Sander has asked the State Bar of California for data to test them, since its files have

the most extensive set of law student information in the country (an) can link individual students’ college GPAs, LSAT scores, law school grades, and bar scores going back to 1973. Researchers would be able to compare, with an extraordinary degree of precision, the bar-passage rates of students admitted into elite schools via affirmative action with the rates of those with similar qualifications who attended less elite schools. When Sander and his colleagues approached the bar’s leaders and statisticians in 2005 about collaborating on a study, they got an enthusiastic response.
    Then a platoon of law school deans paid the bar a little visit. Suddenly, the bar changed its tune. It threw up obstacle after obstacle, claiming that the study was an “anti-affirmative-action” ploy and would violate student privacy.

Sander, who is seeking statistical data, not student identities, has been forced to file suit against the State Bar under the California Public Records Act. But Mac Donald reports that meanwhile some confirming data may emerge from another quarter.

Against all expectations, Sander recently convinced the University of California that it had a legal obligation to share its records on undergraduate students’ incoming qualifications and subsequent performance. Though this data set is more generalized than what Sander seeks from the bar, it will likely buttress his mismatch theory and expose lingering preferences at the university, in violation of a 1996 voter initiative outlawing them. The lawsuit against the bar remains pending, but Sander expects to start releasing results from the UC study this fall. They promise to be explosive.