A California Superior Court judge has ruled that the State Bar Association, which regulates the legal profession, is not required to release data requested by the First Amendment Coalition and researchers’ studying the effect of law school affirmative action policies. The Court’s ruling in the controversial litigation will be appealed.
Judge Curtis E.A. Karnow of the California Superior Court for San Francisco ruled March 29, 2010 that the State Bar is not legally obligated to release the data sought by Richard H. Sander, a professor of law at the University of California at Los Angeles, and Joe Hicks, a former governor of the California state bar who is involved in a consortium of researchers organized by Mr. Sander. The two men were joined in their lawsuit by FAC, which believes state bar data on law students’ race and ethnicity should be made public for use by researchers on all sides of the affirmative action debate.
Judge Karnow’s ruling (for a copy, click here) focused on the issue of whether the State Bar, which is exempt from the Public Records Act, is nonetheless subject to other access rights, including Prop 59, which added access rights to the state constitution; a so-called “common law” right of access; and newly adopted court rules applicable to the Judiciary (of which the State Bar is, technically, a part).
The Court ruled that none of these authorities could be interpreted to reach the State Bar or the data relating to affirmative action. The Court stressed that a pro-access interpretation likely would lead to disclosure of judges’ rough notes, grand-jury transcripts, and other documents that have long been held to be nonpublic.
One oddity of the Court’s reasoning is the unique status conferred on the State Bar. Under the Court’s interpretation, the Bar is the only government entity or agency in California that is not subject to freedom-of-information principles. Another oddity of the Court’s decision is that it construes Prop 59, enacted in 2004 with over 80 percent of the vote, as having virtually no meaning.
Mr. Sander said he believed Judge Karnow’s ruling was based on an excessively narrow reading of the law. “We are not at all disheartened by the lower-court decision,” he said, adding that he predicts the appellate court “will not give it great weight.”
“Judge Karnow’s conclusions will come as a surprise to the voters, who certainly thought, in passing Prop 59, that they were voting for more access and more information, not the status quo,” said FAC’s Mr. Scheer. “We’re very hopeful the Court of Appeals will see this case differently.”
Mr. Sander, on the basis of past research, has theorized that selective law schools’ affirmative action policies, through a “mismatch” between the benefited students and the schools’ academic program, set up many minority students to perform poorly, both in law school and in seeking admission to the Bar. Mr. Sander’s writings on this issue, in the Stanford Law Review and other prestigious journals, have been highly controversial.
The plaintiffs in the Bar case are represented by James Chadwick, Evgenia Fkiaras and Guylyn Cummins of Sheppard Mullin, and by Jane Yakowitz in Los Angeles. The State Bar’s lawyer is Michael Von Loewenfeldt of Kerr & Wagstaffe.
One Comment
So .. how does the “ethnicity” help to determine the effects of “affirmative action”? Not everyone who is of one ethnicity or another is in school because of “affirmative action”, are they?
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