Bar admissions data case goes to court

By Nancy McCarthy
Staff Writer

A UCLA professor took his fight to obtain data about bar examination applicants to court last month, arguing that public access laws give him a right to the information. Although a San Francisco Superior Court judge issued a tentative decision against Richard Sander before a hearing, he listened to arguments from both sides and did not immediately affirm his decision.

Sander, an economist and law professor, has sued the State Bar, seeking bar exam records for use in evaluating law school admission policies. Joined by the First Amendment Coalition and former State Bar governor Joe Hicks, he is asking for applicants’ race, law schools attended, year graduated from law school, bar pass rate, law school grades and LSAT scores. The Committee of Bar Examiners and the Board of Governors rejected Sander’s request in 2007 and the Supreme Court declined to hear the matter last year. The bar groups contend that releasing the data would violate their promises to law students of privacy and limited use of the records.

James Chadwick, the First Amendment Coalition’s lawyer, told Judge Curtis E.A. Karnow that the researcher is entitled to the records under both common law and Proposition 59, the public records initiative approved by voters in 2004. Although Chadwick acknowledged that not all records are subject to public access, he said “records in the hands of public agencies that have something to do with the work of the agency” — such as data about bar applicants — should be available for public scrutiny. Under Karnow’s tentative decision, Chadwick said, the State Bar would be the only state entity not subject to the right of access. “The State Bar will stand alone as being above public scrutiny,” he said.

State Bar attorney Michael von Loewenfeldt countered that the law is clearly on the side of protecting the records. “California case law regarding access to judicial records is very clear,” von Loewenfeldt said. “Public access is limited to documents that reflect decisions of the courts or that were submitted to the courts during an adjudicatory process.” Von Loewenfeldt also said the bar is an arm of the Supreme Court, and the judicial branch is different from the executive and legislative branches and thus subject to different kinds of rules. The work of the executive and legislative branches is part and parcel of the political process, whereas the work of the courts is contained in adjudicative proceedings and decisions.

“The internal admissions database of the State Bar contains highly sensitive and confidentially collected information about all bar applicants,” von Loewenfeldt said. “It is the antithesis of a public record; indeed, lawyers who pass the bar cannot even learn their own bar examination scores.” Von Loewenfeldt added that the State Bar is not without regulation. As an administrative adjunct of the Supreme Court, that court, as opposed to individual superior courts, would be the appropriate body to adopt rules or policies regarding public access to bar records.

Sander wants to use the data to test his “mismatch theory,” which concludes that affirmative action actually hurts minority students. He believes students of color who are admitted to top schools because of race-based standards have trouble competing with non-affirmative action students. They would do better, he believes, at less competitive schools. The First Amendment Coalition is seeking the records for use by scholars, researchers, government officials and members of the public.

Before the hearing, Karnow issued a tentative decision denying Sander’s petition. Turning over the records, he said would reverse “decades of legal development.” The public has no right to State Bar admissions data under common law, Proposition 59 or a new California rule of court, he said.

Traditional First Amendment rights do not extend to a variety of non-adjudicatory items, such as grand jury transcripts, preliminary drafts of orders and judges’ private deliberations and conferences, the judge said in his tentative decision. Instead, the question becomes whether the data sought by Sander “fall within the scope of documents in the possession of the judicial branch traditionally subject to public disclosure. They plainly do not.”

Karnow also rejected Sander’s argument that Prop 59, the 2004 public records initiative, requires public access to every document in possession of the courts. Such an interpretation represents a “stunning shift” from what the judge called the traditional test. “Sander provides no evidence,” he wrote, “that the voters meant the proposition to have such a remarkable reach in modifying the state Constitution and decades of legal development.”

Finally, the judge addressed Rule of Court 10.500, enacted by the Judicial Council at the request of the legislature to require the judicial branch to allow inspection and copying of judicial records. Despite the council’s express rejection of expanding the rule to cover the State Bar, Sander asked the court to interpret it broadly. “It is a heady suggestion, but I must decline,” Karnow wrote. The underlying legislation did not require the Judicial Council to enact rules governing the bar, he said, and even if it did so, a trial court does not have the ability to re-write a rule.

Von Loewenfeldt said after the hearing he was confident the bar will prevail. Sander said he will appeal if he loses.