Judges Bounced Off Controversial Race-Data Case

Hey, it was just a little motion to intervene. So what was all the fuss?

Not one, not two, but three judges in San Francisco Superior Court either recused themselves or were asked to step aside by counsel on Wednesday during a hearing in a case over bar exam data.

Maybe it’s the nature of the case? UCLA law prof Richard Sander wants to examine State Bar data for proof that affirmative action doesn’t work. After his previous study suggested affirmative action might be responsible for black students’ high bar-exam failure rates nationwide, his premise is that race-based preferences opened doors of elite law schools to minority students who weren’t academically prepared and might have prospered at less prestigious law schools.

Yeah, that’s going to tick some people off.

Some ticked-off people, and recuse excuses, after the jump:

First in line? Some people whose Bar exam scores are in the data set (1972-2007) that Sanders wants. At Wednesday’s hearing in Sander v. State Bar of California, 08-5-8880, about two dozen individuals who took the test during that period sought to intervene and oppose release of the information.

The motion was finally heard — and denied — by Judge A. James Robertson. But only after going through three previous judges. Judges Charlotte Woolard and Peter Busch recused themselves, and retired Judge Paul Alvarado was challenged by attorneys for the California First Amendment Coalition, which has allied itself with Sander.

Michael von Loewenfeldt, a partner at San Francisco’s Kerr & Wagstaffe who represents the State Bar in the matter, and James Chadwick, a partner in Sheppard Mullin Richter & Hampton’s Menlo Park office who represents CFAC, said today that they don’t believe the two judges who recused themselves were afraid of the controversial subject matter.

Both attorneys said they had no idea why Woolard stepped aside but noted that Busch reportedly has a son at Bingham McCutchen, which represents the proposed intervenors. There’s an associate named Frank Busch in Bingham’s San Francisco office.

“So I suspect that’s why Judge Busch recused himself,” von Loewenfeldt said, “and not anything to do with the substance of the case.”

However, there has been some speculation by others close to the case that Woolard and Busch also might have felt they had a possible conflict. Woolard was admitted to practice law in 1979 and Busch in 1981, putting their own bar scores into the data set in question.

Von Loewenfeldt, though, thought that might be far-fetched.

“It’s hard for me to believe that there’s a giant bevy of judges sitting over there worrying about that,” he said.

As for Judge Alvarado, Chadwick exercised a peremptory challenge under Civil Code Section 170.6

Who will eventually hear the entire case isn’t clear. Judge Robertson stepped in just to hear the motion to intervene.

— Mike McKee

Comments

[Jess P. Yanez]

How curious is one who cloaks himself in the pursuit of academic rigor/proof yet ignores all of the privileges that have been granted to him on account of his class and race.

So Professor Sanders' "premise is that race-based preferences opened doors of elite law schools to minority students who weren’t academically prepared and might have prospered at less prestigious law schools." His request for data, ostensibly, is based on his presumed concern for the high failure rate of minority students at "elite" institutions, such as UCLA, perhaps?

Assume for a moment that his premise is true: So what?! Are these less "prestigious" institutions ready to accept these "less qualified" minorities into their "less prestigious" institutions? Is Professor Sanders looking to help ameliorate a perceived problem with the enrollment process or is his motive other than benign intellectual rigor and curiosity; after all, his motive is "proof of a premise which is suggested by earlier studies."

Let us assume for a moment that Professor Sanders is the beneficiary of a system in which he is rewarded because he is not a minority student and presumably (just a guess) he may have had access to a better education, better support and mentoring programs etc. and he is now, therefore, rewarded with a post in an "elite" and/or "prestigious" institution (prestige, like beauty, is oftentimes in the eye of the beholder—“factual data” notwithstanding). What is Professor Sanders plan, if any, were his wishes granted and his "proof" established? I suspect he has NONE. Thus it calls into question the true purpose of Professor Sander’s motives.

In my opinion Professor Sanders is nothing more than a self aggrandizing academic who will “prove” nothing in the end. Some disadvantaged students will do worse in so called “elite” institutions simply because they lacked the opportunities that Professor Sanders enjoyed—or am I wrong on this point and Professor Sanders bootstrapped himself onto his current academic position by virtue of poverty, deprivation and sub-standard schooling? As they say in the hood: give it up hommie. Come back when you have established a level playing field and let me know the results.

[Corntrollio]

I'm unclear why the first commenter would jump to facile conclusions about Prof. Sander's motives. If the commenter would like to jump to another conclusion, perhaps the information that Sander's son from his first marriage is half-black would help. Maybe he's just trying to help people out and figure out what's going on, like most other academics. The first commenter is just making the same criticism that people who have never read Sander's first paper on this subject made.

[Jess]

That profesor Sander's son is "half black" is of interest only in that he now has the experience to see up close and personal what, if any, difference it will make if his son has opportunity and is properly mentored. The outcome? Who knows. Prsumably prof. Sander's son is his own person and will make choices which may or may not lead to sucess in the academic field. Time will tell.

As for the balance of the statement, there is no jumping to conclusions. I can author a paper in which I declare nothing but the best intentions on earth toward some group and still act in a way which is contrary to my stated purpose--and I am assuming that prof Sander has such a position statement. To be fair to the commentator, I am not familiar with such a statement and thus make not comment other than what is based on the stated purpose of prof. Sander goal. It is not all what it seems from my viewpoint--and this is not the first time that prof. Sander's position has come to my attention.

On another "jump," as you call them, I must admit, your moniker is somewhat amusing and I would guess you are of the MTV generation. Wrong?

Thanks for the feedback but I stand by what I wrote.

[anon]

Wow, the first comment is really ill informed. Sanders is not some anti-affirmative action ideologue, with unsubtle racist overtones bubbling up all over the place. He's an academic who has noticed that bar exam passage rates for black and Latino law students are lower than average nationwide. Sanders has a hypothesis that black and Latino law students bar passage rates may be lower than white and Asian law students even within the same law schools, which may bear on the efficacy of certain affirmative action policies in law school admissions.

We don't know one way or the other, because the Cal Bar won't release the data. Burying our heads in the sand and refusing to talk about racial issues won't make them go away. Sander's theory might be disproved by the data too. But if the data are withheld, we will never know.

[Jess]

Anon--how about telling us who you are?

"Ill informed"? on what basis; or which statement(s) do you belive are "ill informed"? Please enlighten me.

On the other hand, your amorphous statements of well meaning objectives do not respond to the crux of the comment: Prof. Sander's quest is ultimately meaningless. To paraphrase, "you do not need a wheatherman to know which way the wind blows." What I see in response to my comment(s) is obfuscation on the part of those who respond. What is so difficult to understand?

The POINT IS THIS: All things being equal, if you start a 100 yard dash when your competition is given a 10 yard head start it seems that your competition has the advantage and more than likely will beat you. If prof. Sander is attempting to "prove" that law school performance at "elite" institutions is tied to prior preparation then he is "proving" the obvious. And if that is the case. . . what is the true purpose of his quest?

As for your comment on "racial issues," while I agree that ignoring them will not make them go away, creacting bogus reasons to prove a "hypothesis" is equally counterproductive. As stated before, so what if prof Sander "proves" his point. What are you and the others, who obviously do not have their respective heads in the sand, going to do about it? Hand me the envelope, Karnak says. . . NOTHING. (dating myself there)

I do agree with your implicit comment that racial issues need to be addressed sooner rather than later. Oh, yes, and Wow back to you. Thanks for the input. Next time be more concrete.