A debate about the effects of affirmative action in higher education has moved from the classroom to the courtroom following the filing today of a lawsuit against the State Bar of California to force it to disclose years of statistical records on bar exam results. The records are sought for an academic research project that will test the controversial theory that affirmative action policies at law schools harm the very minority students they are intended to help. The State Bar has blocked access to the records.
The research project is led by UCLA economist and law professor Richard Sander, one of the petitioners in the suit. In law reviews and other academic writings, Sander has raised the question of whether students admitted to law schools through large preferences would have had a better chance of passing the bar (and, ultimately, entering law practice) if, instead, they had gone to a less selective law school that would have admitted them without a preference. Although other data obtained by Sander and his colleagues supports this hypothesis, the state Bar’s uniquely comprehensive records on tens of thousands of test takers is needed to establish whether the theory is right or wrong.
Sander is joined in the suit by Joe Hicks, long-time civil rights leader and Vice President of Community Advocates, Inc., and by the California First Amendment Coalition (CFAC). To Hicks, “the real fear appears to be that the data may challenge the long-held belief that affirmative action is beneficial. The only way to bring this long-standing debate to fact-based conclusions is to allow legitimate research to proceed.” CFAC, a free speech and open-government advocacy organization, contends that the requested records belong to the public, not the Bar, and therefore must be made public, so long as they are provided in a manner that protects bar-takers’ privacy. The procedurally unusual suit was filed in the Supreme Court, based on decisions indicating that it may have “exclusive” jurisdiction in cases against the State Bar.
The suit follows an unsuccessful effort by Sander and others to collaborate with the State Bar. That effort was derailed by a vocal contingent of law school deans, professors, and interest groups. The research study had been designed over a year and a half by one of the State Bar’s own data analysts and a team of economists and law professors, including Sander, labor economist Doug Williams of the University of the South, and Professor Vikram Amar of UC Davis School of Law. Although the official reason for the denial was concern over the privacy of law school graduates, critics of the Bar said the denial was motivated by a desire to avoid controversy on a politically sensitive issue.
“Basically, the Bar has chosen to sacrifice academic freedom and the public’s right of access for the sake of political correctness,” said CFAC executive director Peter Scheer.
The new lawsuit is based on public record requests, also denied, that were filed earlier this year. The requests included detailed instructions for redacting the records to safeguard privacy and assure that no test-takers could be identified.
“We have consulted with a range of experts to insure that our request meets the highest standards for anonymizing the information and protecting individual identities,” said Sander. “We want all researchers to have access to the records, whether or not they agree with our analysis,” he said.
The petitioners and their counsel are holding a press conference on Friday morning, August 8th, at 10 am in the San Francisco offices of Sheppard Mullin Richter & Hampton, LLP, Four Embarcadero Center, 17th Floor, San Francisco, California. If you wish to receive materials from the press kit, please contact Jane Yakowitz at yakowitz@law.ucla.edu or (310)267-4576.
CONTACTS:
JAMES CHADWICK, counsel for petitioners
650-815-2605, jchadwick@sheppardmullin.com
RICHARD SANDER
(310)206-7300, sander@law.ucla.edu
PETER SCHEER
415-460-5060, ps@cfac.org