Sign On to Letter Opposing Release of
Confidential Information by State Bar

Boalt Hall alumnus: The letter below states our collective objection to the release of any of our personal information and records by the State Bar of California to Richard Sander. Please read the letter and complete the form at the bottom if you would like to be added on to the letter as a supporter. Background information here.

October 26, 2007

Mr. Jeffrey Bleich
President
The State Bar of California
180 Howard
San Francisco, CA 94105

Re: Notice of Public Comment on Release of Confidential Bar Applicant Data

Dear Mr. Bleich:

We write in reference to the proposal of Richard Sander and his co-investigators for data regarding applicants for admission to the bar between 1997 and 2005. Sander has requested that the bar provide him with a wealth of information, including applicants' race, gender, ethnicity, bar examination scores, LSAT scores, law school GPAs, and undergraduate grades. As alumni of Boalt School of Law who are members of racial minority groups within the affected cohort of bar applicants, we strenuously object to the release of any of our personal information and records.

The basis of that objection is not disagreement (or agreement) with Sander's methods or past conclusions; rather, it is that we did not consent to have our personal information available for the kind of study Sander proposes. When we applied to take the bar examination the State Bar requested our racial and other demographic characteristics. This request was accompanied by a declaration that this information was being collected by the Bar "as part of the application process" and that it would be "confidential" and used solely for the purpose of evaluating the examination itself. On that basis, we supplied this information. It is obvious that allowing Sander and other members of his team to use this confidential information in order to evaluate law school affirmative action programs falls far outside the terms of this declaration and well beyond the scope of any consent that was given when we supplied this information. In this sense, releasing our information is tantamount to coercing our participation.

Compounding matters is the narrowly-circumscribed consent form by which applicants authorized the State Bar of California to obtain their educational records but only for the purpose of the "processing of this application" for bar membership. This consent form also authorized the State Bar to release "information regarding my application to take the bar examination, and my bar examination scores" only to the law school which we attended. We never gave the State Bar any other authorization or consent to release our personal and private information to third-parties like Sander. Unequivocally, Sander's broad-ranging affirmative action proposal has nothing to do whatsoever with narrow grounds upon which the State Bar of California indicated to us that it would release our personal information.

We are extraordinarily concerned that we will be rendered personally identifiable in Sander's published work and that our private academic and other records will be publicly revealed, notwithstanding the researchers' assurances to the contrary. This is because the affected cohorts of graduates are so small that the protections that Sander's team proposes will be ineffective. Our concerns are not fanciful. Several commentators and scholars who have looked at this proposal have expressed this concern. From our perspective, we think this potentially serious harm strongly militates against granting Sander access our personal information. We should not have to assume the risk that private details about our academic life will become public record.

Even if we are not individually identifiable, however, we face a grave risk of reputational harm. That is because there are very few black and Latino/a graduates of Boalt School of Law during the years under analysis. We are very worried that we will be stigmatized by statements such as those that Sander and Vikram Amar made in their September 26 LA Times editorial that in 2005 graduates "who benefited from preferences at one selective California law school" failed the bar at ten times the rate of others. Since his work has previously identified Black students as the beneficiaries of "preferences," the clear implication is that those who failed were Black. The editorial is likely to stimulate speculation about whether a particular member of that group, which is easily identifiable because of its size, was one of those who received a low score. Regardless of whether individual members of the group had difficulty with the bar or not, the group aspersion will affect all Black students in that class. Whatever the intent of the editorial, this is the effect. Similar concerns arise with regard to statements regarding Latinos/as as the proposal entails focus on similarly small groups of Latino/a test takers during the years in question.

It is just patently unreasonable in the absence of an informed consent from every participant to subject us to a risk of reputational harm that could have long lasting economic and personal effects. Our very professional identities are at stake, which is precisely what the State Bar of California is supposed to protect.

Importantly, for us, this is not just a legal matter, it is a moral one. We were given specific commitments by the State Bar when we applied for membership that our personal information would not be used except for certain very specific and limited purposes. We were extremely relieved to learn that the Board of Bar Examiners denied Sander's request to use our information. This is not a difficult issue. The State Bar must maintain the trust of its members by honoring its commitments regarding confidentiality.

For these reasons, we strongly urge the Board of Governors to affirm the decision of the Board of Bar Examiners.

We have closed off the collection of signatures.