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State Supreme Court hears case that tests public’s right to view bar exam data

By Laura Ernde
Staff Writer

The California Supreme Court will hear oral arguments this month in a case that pits the public’s right to access government records against the privacy rights of bar exam test-takers.

The case stems from a UCLA law professor’s request for data on every person who applied to take the bar exam from 1972 to 2007, including their race, academic record and bar exam scores.

Professor Richard Sander wants to use the data to test his theory that affirmative action undermines the ability of minority students to succeed at elite schools, leading to lower bar exam passage rates among black and Latino bar applicants.

The State Bar declined to release the data in 2007, citing privacy concerns, and Sander filed suit.

Among the legal questions in the case is whether the bar exam information is subject to public disclosure. The trial court found that the common law right of access does not authorize public access to the bar exam data, but the 1st District Court of Appeal reversed, finding there was a legal basis for disclosure and ordering the lower court to reconsider the request.

On appeal to the California Supreme Court, the State Bar argues that exam scores are not public information, noting that even successful applicants don’t get to see their own scores. The State Bar said applicants are promised confidentiality when they voluntarily submit the information. The bar releases statistics on bar passage rates by law school and whether the applicant was a first-time or repeat test-taker.

Sander, joined by the First Amendment Coalition, maintains that there is a right of public access to admissions records under the California Constitution and common law. He argues that privacy concerns can be resolved by manipulating the data before it’s released to protect the identity of individual test-takers.

The case has drawn a number of friend-of-the-court briefs, with media outlets pressing for disclosure and bar applicants and local bar associations urging confidentiality.

The arguments are scheduled for Oct. 9 at the court’s special session at the University of California Berkeley School of Law and a decision is due by early January.

The briefs in the case, Sander v. State Bar of California, S194951, are available online.