CFAC files suit in affirmative action case to defend researcher’s academic freedom and oppose State Bar’s claim that it is above the law of access
By Peter Scheer
Richard Sander, a highly regarded UCLA law professor and statistician, is conducting research with important implications for higher education. To complete the research, which has been the subject of many scholarly articles and intense academic interest, he needs access to a California government database.
So why has the State Bar, which controls the database, denied Sander and his research team access to the records? Because Sander’s subject is affirmative action, the mere mention of which raises blood pressure levels among bureaucrats of all political persuasions. And because Sander’s research breaches a taboo of political correctness: he hypothesizes that affirmative action, at least in top law schools, actually hurts the minority students it is designed to help.
It does this, Sander suggests, by landing minority students–and other students who receive a major preference–in academic settings for which they haven’t been adequately prepared. The resulting “mismatch” between their preparation and the preparation needed to succeed in such schools disadvantages students admitted under affirmative action policies. Sander theorizes these students might have had a better chance of passing the Bar exam–and becoming practicing lawyers–if they had, instead, attended a less selective law school.
Whatever one’s views on the politically divisive issue of affirmative action, there’s no disputing that Sander’s research raises questions of public importance. If the State Bar’s records prove Sander’s suppositions wrong, affirmative action policies can be pursued with greater confidence in their legitimacy. If Sander turns out to be right, no academic institution in the country will be able to avoid a serious reexamination of its use of affirmative action.
You would think that the California State Bar, which promotes diversity in the legal profession and claims to be concerned about low bar pass rates for minority students, would welcome and encourage Sander’s research. After all, his research could provide answers to questions about disparities in bar admissions that have vexed the Bar for years.
The Bar, however, does not want answers. While Sander’s research could lead to policy changes that might enable minority law students to pass the bar in greater numbers, and enter legal practice in greater numbers, the Bar wants only to maintain the status quo and avoid political controversy. For the Bar, ignorance is bliss.
Instead of embracing Sander’s research, the Bar is doing everything it can to shut it down. The Bar says that, unlike other agencies, it doesn’t even have to consider a request for records. It argues that, because the Bar is part of the judiciary, it is exempt from all legal requirements of public access.
This extravagant claim of immunity–tantamount to saying the Bar is above the law–is absurd. Even the judiciary (through the Administrative Office of the Courts) has adopted policies voluntarily imposing on itself access obligations similar to those in the Public Records Act. Moreover, the Bar, like the courts, is subject to Prop 59, which imposes a constitutional right of access independent of state statutes.
The Bar has also argued that Sander’s research would jeopardize Bar applicants’ privacy. But this is just a pretext: Sander’s protocol for obtaining records from the Bar provides anonymity safeguards far more rigorous than the Bar uses for information it already publishes on its website. Under Sander’s procedures, the identities of bar applicants will be unknown and unknowable.
Sander’s efforts to pry loose records needed to complete his research have moved to the courts, following the filing last week of a lawsuit by Sander and the California First Amendment Coalition. Resort to the courts is necessary to vindicate principles of academic freedom and government transparency.
Political considerations should never be allowed to interfere with academic research, whether involving affirmative action, human stem cells, or the history of the Bay of Pigs invasion. To guard against such interference, no government agency should have complete discretion to release, or not to release, information sought by researchers. Even the state Bar, we hope to establish in this case, has an obligation to provide public access, subject to appropriate protections for confidentiality, to its files and databases.
Peter Scheer, a lawyer and journalist, is executive director of CFAC.