The California Board of Bar Examiners refused to disclose data related to bar passage, such as race, LSAT, undergraduate GPA, law school GPA, and law school. (Story here.) Richard Sander has authored a series of law review articles about the effects of affirmative action on law students and in legal hiring (here, here, and here). The objections are based upon privacy concerns, the lack of an IRB, and lack of consent:
Stanford Law School Dean Larry D. Kramer sent a letter to the board explaining that schools are bound by the federal Family Education Rights and Privacy Act (FERPA), which both provides strict protection of student records and establishes rules governing the disclosure of such data….
In addition, human subject research is governed by other federal law that requires review by an Institutional Review Board (IRB).
The Family Education Rights and Privacy Act does not prohibit the disclosure of information, without prior consent, for various research purposes, under 20 U.S.C § 1232(g)(b)(1)(F):
organizations conducting studies for, or on behalf of, educational agencies or institutions for the purpose of developing, validating, or administering predictive tests, administering student aid programs, and improving instruction, if such studies are conducted in such a manner as will not permit the personal identification of students and their parents by persons other than representatives of such organizations and such information will be destroyed when no longer needed for the purpose for which it is conducted…
The California bar acknowledges the legitimate educational interest of Prof. Sander’s work. If his mismatch theory is correct, students would be better off at lower-tier schools, where they would have a lower likelihood of dropping out an a higher probability of passing the bar. So long as the information can be given in a way that would not permit the personal identification of students (perhaps by aggregating information over several years), the California bar may disclose it without violating FERPA. Furthermore, FERPA seems to only apply to entities which receive federal funding; the schools themselves obviously fall under the statute, but it is entirely questionable as to whether or not the California Board of Bar Examiners receives federal funding that would be jeopardised by the disclosure of personal records.
The IRB requirement is specious. Institutional Review Boards are used to ensure that research will not harm the people involved in them. Statistical research does not cause psychological distress; it involves manipulation of numbers and mathematical formulas, not people’s bodies or minds. The Department of Health and Human Services requires the use of an IRB (45 C.F.R. 101(a)), with certain exemptions, including: research involving the collection or study of existing data, so long as the individuals cannot be identified (§ 101(b)(4)); and research involving educational testing, so long as the individuals cannot be identified (§ 101(b)(2)).
Again, so long as the data may be presented in such a manner as to avoid the disclosure of personally-identifiable information, the California bar may disclose it to Prof. Sander. Certainly, it is under no requirement to do so, but the reasons that it gave for its refusal are illogical.
For statistics nerds, the California Bar’s data on pass rate by gender, race, and type of school (ABA accredited v. non-accredited, or California accredited) are here. Tellingly, 75% of white graduates of California-based, ABA-accredited law schools pass the bar on the first try, while only 46% of black students do so. Hispanic and Asian students fare better, at 57.5% and 67%, respectively.