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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.

Richard Sander

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.