IMAGINE, for a moment, that a program designed to aid disadvantaged students might, instead, be seriously undermining their performance. Imagine that the schools administering the programs were told that the programs might be having this boomerang effect -- but that no one investigated further because the programs were so popular and the prospect of change was so politically controversial.
Now imagine that an agency had collected enough information on student performance that it might, by carefully studying or releasing the data, illuminate both the problem and the possible solutions. What should the agency do?
This is not a hypothetical question. The schools involved are dozens of law schools in California and elsewhere, and the program is the system of affirmative action that enables hundreds of minority law students to attend more elite institutions than their credentials alone would allow. Data from across the country suggest to some researchers that when law students attend schools where their credentials (including LSAT scores and college grades) are much lower than the median at the school, they actually learn less, are less likely to graduate and are nearly twice as likely to fail the bar exam than they would have been had they gone to less elite schools. This is known as the "mismatch effect."
The mismatch theory is controversial. One of us (Sander) has advanced it in the academic literature. The other (Amar) believes that while it raises substantial questions, it has not been empirically proved. Some dismiss the whole idea as nothing more than a politically motivated attack on affirmative action or, even worse, an attack on blacks and Latinos -- the main recipients of current preferences. Many rightly point out that definitive conclusions are difficult because the data available to researchers thus far have been limited in very important ways.
Still, certain facts are indisputable. Data from one selective California law school from 2005 show that students who received large preferences were 10 times as likely to fail the California bar as students who received no preference. After the passage of Proposition 209, which limited the use of racial preferences at California's public universities, in-state bar passage rates for blacks and Latinos went up relative to out-of-state bar passage rates. To the extent that students of color moved from UC schools to less elite ones (as seems likely), the post-209 experience is consistent with the mismatch theory.
In general, research shows that 50% of black law students end up in the bottom 10th of their class, and that they are more than twice as likely to drop out as white students. Only one in three black students who start law school graduate and pass the bar on their first attempt; most never become lawyers. How much of this might be attributable to the mismatch effect of affirmative action is still a matter of debate, but the problem cries out for attention.
A lot of legal scholars who focus on empirical work agree that the mismatch effect deserves serious study. A few weeks ago, the U.S. Commission on Civil Rights issued a 280-page report on these issues that came to the same conclusion.
The best data in the nation for studying any mismatch effect in law schools reside in the archives of the State Bar of California, the state agency that administers the bar exam and oversees the conduct of lawyers. Starting in the 1980s, the California bar has maintained careful records on the backgrounds of bar exam-takers and their performance on its tests. With this data, it is possible to compare how students with similar college grades and LSAT scores do on the bar when they've attended different law schools and experienced different types of legal education. It is also possible to more deeply compare the bar performance of minority students before and after Proposition 209 and use other careful techniques to test whether the mismatch effect exists.
Given the richness of the data and the intensity of interest in the mismatch issue, it was not surprising that a blue-ribbon panel of diverse scholars (including both of us) approached the bar with a detailed proposal to study its data, backed by full funding and letters of support from dozens of scholars, law school deans and public officials.
But although the California bar was initially enthusiastic, one of its committees recently rejected the study proposal. Its stated reasons are implausible; it expressed concern, for example, about disclosing confidential information; but the proposed study includes the bar's own in-house expert, thus mooting the need for any data release.