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Bar exam case filed in superior court

By Diane Curtis
Staff Writer

Professor Richard Sander has taken his quest for bar exam data to San Francis-co superior court following denial by the California Supreme Court to hear his case.

Lawyers for Sander, an economist and law professor at UCLA, filed suit Oct. 3, seeking State Bar records for use in evaluating law school admission policies. Sander, who has published reports concluding that affirmative action hurts minority law school students, seeks data about bar exam takers on race, college and law school grades, LSAT scores and exam results. He withdrew an earlier request to retrieve gender information.

The suit argues that the records are public and that bar concerns about students’ privacy have been addressed.

State Bar President Holly Fujie said the State Bar stands by its earlier decision to reject Sander’s request. “After careful review of the new petition, the bar sees no reason to change its position that the scope of the release signed by applicants does not give the bar legal grounds for providing the requested information to Professor Sander,” Fujie said. “The bar has no legal right to release this information to him.”

In response to the writ to the Supreme Court, the State Bar made a number of points:

  • 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 State Bar with an assurance that it would be kept confidential and used only by the bar to assure 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.

Sander’s request was twice rejected by the bar last year, first by the Committee of Bar Examiners and then by a unanimous vote of the board of governors, whose members cited promises to students of privacy and limited use of the records. Some students testified before the board that because they were the only one, or only one of a few, minorities at their law schools, the information would identity them even with names removed.

Sander said he has worked out a system that would avoid any individual identification.

Along with the California First Amendment Coalition and former State Bar Governor Joe Hicks, Sander first filed suit in the Supreme Court in August. In September, the court denied, without prejudice, his request for an order requiring the bar to release the information. Instead, the court indicated, the suit should be filed “in an appropriate court.”

Sander wants to use the data to test his “mismatch theory,” which holds that affirmative action ultimately results in fewer black lawyers because they are placed in top schools where they have trouble keeping up with non-affirmative action students. He believes they would do better at less competitive schools. The First Amendment Coalition is seeking the records for all interested scholars, researchers, government officials and members of the public.

The suit asserts that the State Bar contradicts itself by itself releasing statistics on pass/fail rates and such information as gender and race from individual schools. “In the State Bar’s last 22 bi-annual reports, there are thousands of examples of disclosures similar to that requested by petitioners.” The suit also says that in the 1990s the State Bar sought and received authorization from the Supreme Court to release data with more details than Sander is asking for.

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