New ruling in FAC case opens door to release of state bar records needed for affirmative action research

In an important decision on freedom of information, a California appeals court today ruled that State Bar records about the race and ethnicity of Bar applicants are subject to a “common law” right of public access which, following further proceedings, could result in their disclosure–stripped of all names and identifying information–for academic research into the effects of affirmative action policies.

The decision, in a lawsuit filed by UCLA Professor Richard Sander and the First Amendment Coalition, an open-government organization, establishes that administrative records of the State Bar, which is an arm of the Judiciary, do not get a free pass from all government-access requirements. The Bar had argued that its administrative records were uniquely exempt from access rules applicable to all other local governments and state agencies in California.

“This decision makes clear that no government agency, not even the State Bar, is above the law,” said FAC executive director Peter Scheer. “These records inform the Bar’s decisions and policies, and they can be released in a way that fully protects the confidentiality of Bar applicants,” Scheer said.

In ruling that the common law’s right of public access encompasses non-adjudicatory State Bar records, such as anonymous information about Bar applicants, the court brought renewed attention to a tool of public access that is typically overlooked in favor of access statutes like the Public Records Act, the Legislative Open Records Act, or special access rules covering state courts.

Professor Sander, whose publications in academic journals have sparked debate in academic circles, theorizes that affirmative action policies in elite law schools, by placing students in academic settings for which they have not been adequately prepared, increase the risk that minority and other favored students will underperform, both in law school and in admissions to the Bar.

Sander’s theory suggests that students targeted by affirmative action policies would be more successful, both in law school and as lawyers, if they attend less selective law schools in which there is less of a “mismatch” between their academic background and that of other students.

“This decision should please everyone who wants to get to the bottom of the law school mismatch question,” Sander noted. “We are hopeful that the State Bar will now work with us to create a dataset that protects the privacy of bar-takers while allowing important research to move forward.”

The First Amendment Coalition takes no position in the affirmative action debate, but is committed to principles of academic freedom and government transparency. FAC contends that the records sought by Professor Sander should be released and made available immediately both to Sander and to his critics.

The case name is Richard Sander et al v. State Bar of California, et al (Division 3, A128647). A copy is below. FAC is represented by James Chadwick of Sheppard Mullin (Palo Alto office), phone: 650-815-2605; 408-966-1379. Sander is represented by Jean-Paul Jassy of Bostwick & Jassy (in LA), phone: 310-979-6059.

Richard Sander et al v. State Bar of California, et al (Division 3, A128647)

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One Comment

  • I agree that bar records should be public, taking into consideration the privacy of the applicants. However, the purpose for the records appears to be based on proving that minority students cannot succeed in law school. This is the furthest from the truth, and can be confirmed by successful minority attorneys. The low bar passage for minorities involve several other key issues. Such as, the written portion of the examination is VERY subjective, and allows rogue bar graders to give whatever grades they want without any real oversight. For example, 1 grader gives an applicant a 75, on the second read, grader 2, gives the person a 60. Now, there is a 15 point descrepancy in the grade so a 3rd grader is brought in to give the operant grade. This is ridiculous since all the graders have the same issue checklist, and are aware of the 15 point grading calibration.

    Also, it has been said for years that experienced graders can tell if the applicant is a minority or not by the grammer in the written portion of the examination. This concept has beed put in print, but never challenged by any organization to disprove or confirm. I know a black student that scored a 1438.8884 on the bar exam, and after the second and third read he ended up with a score of 1425. The purpose of a second read to ensure all points were given to the applicant was used as a weapon to fail this black student.

    Basically, this issue is bigger than the color of a person’s skin. The Bar has been able to operate as an independent company for years, and the information that may come out of this lawsuit is troubling for them.

    Good luck, and I hope the records are release. However, I hope the use of these records are two-fold. Specifically, used to gain the required data, but also to exposed the point deductions of black applicants.

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