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MCLE Self-Assessment Test

Bar asks Supreme Court
to review bar exam data ruling

The State Bar asked the Supreme Court last month to review an appellate court decision that orders the agency to provide bar exam data to a UCLA professor who is researching the relationship between affirmative action and law schools.

The bar argued that the Court of Appeal misunderstood the bar’s status as an arm of the Supreme Court and thus ruled erroneously that its admissions records should be treated differently from other judicial branch 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,” according to the bar petition.

Richard Sander

UCLA economist and law professor Richard Sander is seeking bar exam records for use in evaluating law school admission policies. He 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.

The Court of Appeal, in a unanimous decision by a three-judge panel, reversed a San Francisco Superior Court judge’s finding that the bar has no legal duty to provide access to its bar exam data. The common law right of access to public documents is broader than the First Amendment right of access to adjudicatory court documents, the appellate panel ruled. The lower court erred, it found, in deciding bar records “were not subject to disclosure under the common law presumption of access to public documents.”

But in its petition for rehearing, the bar argued that the appellate court established “an unprecedented and overly broad ‘common law’ rule that subjects all records in the possession of the State Bar ― and other judicial branch agencies that are ‘not courts’ ― to presumptive public disclosure.”

In fact, the petition argued, “there is no such presumptive right of public access to all documents in the hands of the judiciary.” If the appellate ruling stands, the bar and other judicial entities will be subjected to “broad, undefined public disclosure arguments.”

The bar filed its petition July 19. The Supreme Court has 60 days from that date to decide whether to grant review.