UPDATE (SEPT. 19): There was an error in the commentary we included in our Sept. 18 email about the California Supreme Court’s denial of the lawsuit against the State Bar of California brought by UCLA Law professor Richard Sander and the California First Amendment Coalition. (The commentary was published today on the Los Angeles Times website.)

The commentary inadvertently cited the Scaife Foundation as supporting  Sander’s research. Sander is conducting his research through a consortium called Project SEAPHE, which received funding from the Searle Freedom Trust, a foundation that also funds Right-wing groups such as the American Enterprise Institute, Heritage Foundation, Federalist Society and the Pacific Legal Foundation.

The relationship between Sander’s research and the Searle Freedom Trust was reported by The Chornicle of Higher Education in a Jan. 18, 2008, article, “Scholars Mount Sweeping Effort to Measure Effects of Affirmative Action in Higher Education.”

We also mentioned the grant was for $1 million. That was also incorrect. The amount is actually $1.2 million. Indiana University School of Law professor William D. Henderson lists on his CV his role as the study’s co-principal investigator and a $1.2 million grant from the Searle Freedom Trust.

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.

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.