Professor A in my previous post is none other than UCLA's libertarian child prodigy Eugene Volokh (also legal advisor to the Yes on Proposition 209 campaign). Professor B is Richard Sander, a specialist in affordable housing and housing discrimination. And as shocking as it may sound, I will go as far as to claim that Sander is more reviled than Volokh by liberals, or at least by a segment of liberals. According to them, Volokh has always been Volokh, but Sander has sold out.
Why? Because of Sander's 2004 well-publicized law review article
, where he claims that affirmative action is responsible for the high failure rates by African-American students on bar exams around the country. To prove his theory, Sander this year asked the CA State Bar for data from previous bar exams, including individual scores, race and academic credentials, a request that was rejected
. One of his colleagues on the faculty wrote opposing his request (see here
[registration required]). And not surprisingly, a Wall Street Journal article
written by a member of the U.S. Commission on Civil Rights supported Sander's request.
(Current 2Ls have even emailed 1Ls who have Sander for property both to alert them of Sander's research but also to assure them that he is a very good property professor.)
As I've made clear many times in previous posts, I am a strong supporter of affirmative action for admissions purposes. I believe that it is a great shame that the undergrad and the law school's racial composition are so far skewed so as not to reflect, in the slightest, the broader racial composition of LA and of California.
Despite my support for affirmative action, I also feel that its supporters are bullying Sander and the CA State Bar to keep secret the information. I personally don't know whether or not Sander's theory is valid. But I would like to know
. And the way theories are proved or disproved in an institution of higher education is through research and experimentation. The hallmark principle of secular universities, I believe, is academic freedom. And the withholding of CA State Bar data, arguably public data, stifles the development of legitimate academic research.
If Sander's theory ultimately is false, why not release the data, and have affirmative action backers be able to say "I told you so" to Sander's face? For those scared that Sander will artificially manipulate the data, have the CA State Bar make available the same data to the pro-affirmative action researchers to serve as an effective check on Sander's work.
If Sander's theory ultimately is supported by the data, denying the data is only serving to deny the truth, and is a great disservice to minorities. Ignoring the existence of a problem, if there is one, is akin to being the proverbial ostrich head in the sand. If there is some truth to Sander's theory, the provision of the data will enable law schools and the CA State Bar to understand how to create corrective solutions that will ultimately help minority lawyers.
The anti-Sander crowd is being rather hypocritical, I feel. They consistently use CA State Bar racial statistics to back up their claim of the lack of minority lawyers, yet are loathe to allow the same statistics to be used for "unapproved" purposes. But by selectively using data to further one's own purposes and excluding it for "incompatible" purposes does not good research and educational policy make.
Ultimately, my position in based on my belief in the value of free-flowing information, both good and bad. Not to be philosophical here, but I believe that truth can come into being only through a unfettered access to information. And much of my disapproval of Bush 43 (AKA Shrub) has been based on the secrecy and paranoia that seems to pervade his version of democratic government.
As an Obama supporter, I recognize that his past drug use and his "present" votes in the Illinois state senate represent potential liabilities. But I am more appreciative that these harmful facts came out rather than have them hidden by a political spin machine. Likewise, even if the CA State Bar data is not pretty and might weaken current affirmative action theory, our academic pursuit of truth demands its release. In my view, the data's release will ultimately help, more than it hurts, minority lawyers.