California Court Issues Preliminary Ruling in Favor of Bar Applicants’ Private Data, Denying Prof. Sander’s Request

A California Superior Court judge on March 24 issued a preliminary ruling (download PDF) denying Professor Richard Sander’s request for access to bar applicants’ private data from the State Bar of California.

Prof. Sander’s lawsuit attempted to compel the State Bar to release information regarding applicants’ race, GPA, and bar exam scores in order to advance his research on what he terms the “mismatch hypothesis” – that affirmative action in law schools actually harms Black students by putting them in schools where they are unable to compete.

Sander’s findings to date have been readily contested, and his requests for confidential Bar data repeatedly denied – however, he has continued to pursue his claims in court, prompting attempted intervention by law students who claim that release of the confidential data would violate their right to privacy.

Judge Curtis Karnow ruled that Sander’s request should be denied because the data he requested is not a public record under California law (this order is currently pending, and will not be final until entered by the Court). Sander and his colleagues have stated that they intend to appeal this ruling.

While the final outcome of this case remains to be seen, this initial proposed ruling is a victory for the law students whose private records are at risk of being released without their permission.

Below is a more extensive summary of the March 24 preliminary decision in Sander v. State Bar of California by EJS law clerk Audrey Daniel.

Petitioner Richard Sander has filed suit seeking information from the State Bar of California. Specifically, he is attempting to compel the Bar to release information, including race, GPA, Bar exam scores, etc. for applicants for the Bar exam. Sander plans to utilize this data to argue that affirmative action hinders African Americans’ progress in becoming attorneys. EJS has joined the opposition to protect the privacy of Bar applicants against Sander gaining access to their personal information, and using it for such purposes.

The case will be heard in two stages. First, the judge will decide whether the particular data that Sander requests is considered public record. If so, and Sander prevails at the first stage, then the court will then hear the second phase. There, the judge will consider the privacy and burden issues implicated in the request.

The judge recently issued a Proposed Statement of Decision on phase one. Based on a variety of authorities that Sander claimed allowed him access to this information, the judge found that none of them mandated the Bar release this type of personal information of its applicants. This proposed decision is not yet final, but indicates that the court is heavily swayed towards denying Sander’s requests.

Sander first argued that he is entitled to this data based on the common law right of access to documents filed with the courts. However, the California Supreme Court has distinguished between documents related to adjudication and those that do not, when applying such a right of access. The Court there ruled that while there is a broad public right to documents related to judicial hearings and records, it does not include materials not related to a trial or adjudication. The judge in the case at hand found that the personal information that Sander seeks clearly does not relate to a trial or adjudication, and he therefore is not entitled to it based on this theory.

Sander also claims that he is entitled to the data as judicial records. He argues that there is a broad, general right to access of judicial records. While the definition of judicial records is in fact broad, even more so than the common law right to access, it still does not encompass the type of information that Sander seeks.

Another avenue for access asserted was Proposition 59, the California Public Records Act, which could be a potential basis on which Sander is entitled to the information. He argues that the voters’ intent was to include every writing of a public official, even if it was simply in the possession of an official and not actually written by an official. The court, though, did not find his evidence of that intent sufficient, and found that the plain language of the Proposition would not include Bar applicants’ personal information. While the Act expanded public access, it is limited to meetings of public bodies and writings of public officials. Information collected by officials regarding private individuals does not fall under either category. Thus, Sander cannot gain access to these records under Proposition 59.

The court could now rule that based on neither the common law right of access, the right of access to judicial records, nor Proposition 59, Sander did not have a right to this information. The countervailing policy that we support is the privacy rights of all applicants who gave this information with the understanding that it would not be released to the public in any form. While we expect Sander to appeal this decision, EJS commends the court on recognizing and honoring the privacy of California Bar exam applicants.

Calif. Supreme Court Rejects Richard Sander Request for Confidential Bar Exam Data

The California Supreme Court yesterday denied the request by UCLA Law professor Richard Sander and the California First Amendment Coalition. The petition for writ of review was denied without prejudice to re-file in an appropriate court.

EJS also yesterday submitted the following op-ed to the Los Angeles Times in response to its editorial published the same day.

Bar Exam Data Debate About Privacy, Not Affirmative Action
By Anthony Solana, Jr. and Sara Jackson

A Sept. 17 Times editorial characterizes a UCLA law professor’s request for the confidential data of state bar exam takers as a debate over affirmative action.

Proponents of equal opportunity do not fear Prof. Richard Sander’s hypothesis that affirmative action puts Black law students in institutions where they are doomed to fail. Our opposition to his specific request for bar exam data is rooted in the protection of exam takers’ privacy and compliance with the law.

The Times editorial dismisses these concerns as “spurious” and then provides no explanation to support that view. Instead the Times advances Sander’s and the California First Amendment Coalition’s attempts to convert this into a controversy over affirmative action because their anti-privacy arguments have no merit.

For example, Sander wants exam takers’ undergraduate and law school GPA, LSAT as well as bar scores – even though individuals who take the bar cannot access these scores themselves.

The State Bar cannot disclose information provided by exam applicants, irrespective of its relevance in a public policy debate, because state and federal law precludes its disclosure absent consent. One’s private records do not become public records, accessible to anyone, simply because a person applies to take a state exam and becomes part of a database.

It is on these legal grounds that the State Bar Board of Governors voted unanimously to deny Sander’s request and why many prominent lawyers support the Bar’s protection of bar exam takers data. In a Nov. 7, 2007, letter to the State Bar president and chair of the Bar’s Regulations, Admissions & Discipline Committee, 28 lawyers and leaders of bar organizations, both local and statewide, wrote:

“The State Bar holds the confidential information of Bar applicants in trust. It is not at liberty to divulge these applicants’ confidential information because they have a right to privacy in this information and a right to due process with respect to its disclosure.”

Sander’s research design solves neither the problem of consent nor the problem of privacy. Given the current demographic makeup of many of California’s top law schools, simply removing names and other identifying characteristics does not ensure the confidentiality of all applicants.

At UC Berkeley and UCLA Law Schools, several classes have had 10 or fewer Black students since the adoption of Proposition 209. Small numbers of Black students in a class are typical of some private law schools as well. Under such circumstances, even “anonymized” data can still render persons easily traceable, and in such cases the law prohibits disclosure of academic records without consent.

As Dean Larry Kramer of Stanford Law School stated in a letter to the State Bar on this issue last year: “[t]he use of these records envisioned by the Sander team would violate FERPA [the Family Education Rights and Privacy Act of 1974].”

The disclosure of such educational records presents a serious legal question, not fairly characterized as “spurious.”

And to the extent that the issue of political motivation or orthodoxy is invoked, it surely should be considered with respect to all sides. After all, Sander’s research is funded by a $1 $1.2 million grant from the conservative Scaife Foundation Searle Freedom Trust and enjoys the full support of all of the conservatives now in control of the U.S. Civil Rights Commission, including Gail Heriot—one of the authors of Proposition 209.

That Sander has a right to advocate his position is undeniable. He doesn’t have the right to acquire personal and confidential information of bar exam takers when the law mandates otherwise.

Anthony Solana, Jr., is president and chairperson of For People of Color, Inc. Sara Jackson is the Equal Justice Society Judge Constance Baker Motley Civil Rights Fellow. For more information on this issue, visit www.equaljusticesociety.org.

Privacy, Not Political Correctness: Ideology, Not Science, Behind Richard Sander Request for Confidential Bar Exam Data

Prominent Bar Associations, Attorneys and Stanford Law Dean Oppose Sander’s Data Requests

Last fall, the California Bar Association again denied Professor Richard Sander and his research partners’ request for private data on recent bar applicants. Sander and his research team seek to utilize this data to study the relationship between affirmative action and bar-passage rates for students of color. The data requested by Sander and his researchers includes applicants’ LSAT scores, race, gender, law school attended, grades for law school and undergraduate study, and bar exam scores.

In journalistic accounts and in papers filed before the Bar, Sander suggests that the Bar Association’s repeated denials are simply the product of a liberal bar and affirmative-action advocates wanting to stop his research from proceeding. He claims that any privacy claims are simply “red herrings” because no data will be made public and no students identifiable. He further argues that the discussion of his proposed study was “full of misconceptions.” Read more