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 million grant from the conservative Scaife Foundation 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.