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

UPDATE (Sept. 18, 2008) — 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. Update here. EJS also yesterday submitted an op-ed to the Los Angeles Times in response to its editorial published the same day.

UPDATE (Sept. 12, 2008) — EJS issues a rebuttal to Peter Scheer's commentary on the California First Amendment Coalition website.

BACKGROUND

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."

Professor Sander hosts a website on which he posts background information on his study, as well as prominent critiques of his “mismatch” theory. Included on the website is a critique by William Kidder, and Sander's reply to an article in the National Law Journal by Professors Cheryl Harris and Walter Allen. However, notably missing are the additional voices of prominant lawyers and legal scholars, including the dean of Stanford Law School, who assert that Sander's research design does not offer adequate privacy protections for research subjects.

Taken together, these critiques lay out several substantial legal claims, including that Sander's proposed use of bar applicants' data would violate the Family Education Rights and PrivacyAct of 1974 (FERPA) as well as applicants' right to privacy under the California Constitution. Additionally, they raise various due process concerns arising from the fact that students have at no point given their informed consent to be participants in Sander's study. At least from sources readily available, these claims have yet to be directly addressed by Sander or his research team.

Sander’s efforts to obtain this information have not ceased. He continues to attempt to solicit public law schools nation-wide to provide him with students' admission and academic records without their individual consent on the ground that these are disclosable under the Freedom of Information Act (FOIA). This of course does not address the privacy interests protected by federal and state law. Nevertheless, according to press reports, some schools have provided him with the information, and this is cause for concern. In addition to relying on the information provided by Sander's research team, Review Board examiners, Law Schools, and others curious about the status of Sander's proposed study should seriously consider the full range of legal and ethical challenges to his work.

BACKGROUND INFORMATION

Sander claims that he has empirically proven that affirmative action in law schools hurts Black students because it puts them in institutions where they cannot academically compete, and needs this data in order to answer questions and criticisms about his research.

The State Board of Bar Examiners has turned down this request once because the information was collected from those who took the exam for the purpose reviewing the bar examination for validity, not for release to third parties for other purposes.

There are serious privacy concerns. Even though Sander promises not to disclose the identities of the test takers and the names of the schools, these protections are inadequate. Describing the schools by type rather than by name does not prevent people from figuring out which school is being discussed.

Moreover, the numbers of Black and Latino students in these classes are so small, the risk is great that people will be personally identifiable and that general claims about a particular class of graduates of color will be assumed to apply to all members of the group whether or not the statement is true about an individual member.