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Researcher sues bar for exam data

By Nancy McCarthy
Staff Writer

Richard Sander

Personal and academic information about applicants for the California bar examination is collected by the State Bar under assurances of confidentiality and limited use and therefore cannot be released to a UCLA researcher seeking the data, the State Bar argued in papers filed with the Supreme Court last month.

Richard Sander, a UCLA law professor and economist, along with the California First Amendment Coalition and Joe Hicks, a civil rights activist and former public member of the bar board of governors, sued the bar for data on bar exam applicants in order to determine whether preferential admission policies actually harm, rather than help, students of color. The Committee of Bar Examiners and the Board of Governors have refused Sander’s previous requests.

In its response, the bar argues that:

  • Sander does not have a right to see or use personal and private information of bar exam applicants without their consent.
  • Applicants provided information to the bar with assurances that it would be kept confidential and used only to ensure the exam’s testing validity.
  • There is no merit to Sander’s argument that personal data provided by bar applicants is a “court document” that is like other public records. The right of access to court proceedings under case law applies only to transcripts, documents and other official records related to lawsuits filed in the courts.
  • There is no merit to Sander’s argument that Proposition 59, the November 2004 public records initiative, has changed this. In fact, courts have ruled that there has been no expansion of the types of court documents that must be made available.
  • Sander is not simply seeking a copy of an existing bar record. Disclosure would require the State Bar to work with him to create data that is useful for his research purposes, but not that of the State Bar.

“Applicants for the California bar exam provide a great deal of personal information to the State Bar under the clear understanding that their information will be kept confidential and only used for bar purposes,” said President Jeff Bleich. “No applicant should be subjected — without warning and contrary to the representations made when he or she applied — to any risk that his or her private academic record and bar exam results will become publicly known.”

Sander and the others went directly to the Supreme Court Aug. 7 to petition that it direct the bar to hand over the records. They asked that the data be redacted to protect the privacy of test takers.

Sander theorizes that placing unqualified minority students in elite law schools results in lower bar pass rates than if they attended schools where their admissions credentials match those of their classmates. Calling the outcome the “mismatch effect,” he suggests in his petition that “the benefit a student normally gets from attending a higher-tiered school is overcome by the negative effects of mismatch, and that these mismatch effects accompany any aggressive law school preference program, whether racially based or tied to other types of school characteristics.”

Sander says the California bar has the most comprehensive data on law students, both because it collects detailed information and its applicant pool is large and unusually diverse.

Because the bar has consistently denied his request on the grounds of protecting students’ privacy, Sander asks that identifying information, including name, gender, Social Security number and birth date be redacted in order to ensure that personal information remain confidential. The University of California, he notes, agreed in June to disclose records on some 800,000 students who applied to UC between 1992 and 2006, as well as data on almost 400,000 who enrolled. In addition, the bar released student data in 1992 to the Law School Admission Council after obtaining authorization from the Supreme Court.

But the bar rejected Sander’s request for applicants’ information after reviewing it in detail and considering the comments of numerous constituents, many of whom had provided information with the understanding it was confidential.

It has repeatedly stated its position that private data submitted by bar exam applicants should not be released to a third party without signed prior consent from the law students.

Applicants are told during the admissions process that data they provide will be used solely in publishing general statistics about the bar exam or for research studies conducted by the Committee of Bar Examiners. The release of private applicant data to a third party has not occurred in the absence of customized individual signed releases.

Speakers at a hearing last fall overwhelmingly opposed releasing the data sought by Sander. Several said they would be inclined not to provide the information — which is currently given voluntarily — if they knew it would be shared with third parties. Some told the board that because they were the only, or one of a few, minority students at their law school, releasing such private information would make them easily identifiable.

A majority of law school deans also opposed release of the information, citing the federal Family Education Rights and Privacy Act (FERPA). The deans maintained that FERPA provides strict protection of student records and establishes rules governing the disclosure.

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