Supreme Court will review
bar admissions data case
The years-long effort by a UCLA professor to obtain bar exam data
for his research on the relationship between affirmative action and law schools took
another turn last month when the California Supreme Court agreed to review the case.
The
State Bar petitioned for review, arguing that the Court of Appeal, in a
unanimous June decision, incorrectly found a presumptive public right of access
to bar admissions records. Review “is essential to correct these errors
and to control access to the confidential records generated as part of the
attorney admissions and discipline processes,” the bar argued.
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Richard Sander |
The review involves a lawsuit filed by UCLA economist and law
professor Richard Sander, who is seeking bar exam records for use in evaluating
law school admission policies. The State Bar’s petition was supported by
a large number of bar associations and other groups concerned about the
implications of such access on the privacy of applicants. Sander drew support
from a variety of media outlets.
The Supreme Court has asked for briefing on three
issues: (1) What ground, if any, exists for finding that the
information sought by plaintiffs is information that is subject to public
disclosure? (2) What is the effect, if any, of the representation of
confidentiality made by the State Bar to the individuals from whom the
information was collected? (3) Does the form in which the requested
information is regularly maintained affect whether the State Bar must provide
the requested information?
Sander
sued the bar to obtain 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, asserting that the release of such data would
violate their promises to law students of privacy and limited use of the
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.
In
its petition for review, the bar said the Court of Appeal “fundamentally
misunderstood and misapplied the common law right of access to public
records.” It incorrectly concluded that the bar is not subject to
well-established limits on access to judicial branch records and further subjected
the bar “to a broad, undefined right of access unknown to the rest of
government,” the bar petition said.
The records Sander seeks, the bar said, belong to the Supreme
Court and therefore the court should decide if the bar’s admissions
database and similar admissions records “are subject to a presumptive
public right of access.”
Briefing on the petition for review currently is scheduled to be
complete by mid-November.