UCLA Law Prof's Long Legal Fight Over Access To California Bar Admissions Data Headed To Trial

Following up on my earlier post, The Mismatch Critique of Law School Affirmative Action and Its Opponents:  Wall Street Journal, Long Legal Fight Over Access to California Bar Admissions Data Headed for Trial:

It was a decade ago when a UCLA law professor known for his critique of affirmative action first asked the State Bar of California to give him a trove of data on people who applied to practice law in the state.

Professor Richard H. Sander still hasn’t gotten the state bar to turn over the information he wants. But his long legal effort in pursuit of it may have reached a turning point this week when a judge said his case could go to trial over the objections of the state bar.

Mr. Sander is the academic most associated with the “mismatch” theory about affirmative action, the idea that racial and other kinds of admissions preferences can have unintended consequences by putting students in academic settings for which they’re not prepared.

In 2006, he asked the state bar to disclose bar exam scores, grade point averages and LSAT scores of everyone who applied for bar admission between 1972 and 2007, along with each bar applicant’s race and gender. All of the information is stored on the state bar admissions database.

His request didn’t seek disclosure of anyone’s names, but sought admissions data on much more granular level. Mr. Sander has said his request had to do with his research into “the large and persistent gap in bar passage rates among racial and ethnic groups.”

The state bar refused, citing privacy concerns. In 2008, the professor and the California First Amendment Coalition filed suit, arguing that they have a legal right to the information.

The California Supreme Court in 2013 ruled that the plaintiffs have “a common law right of access” to the data, as long as the records could be disclosed in a way that protects the privacy of bar applicants.

Then in 2015, state lawmakers passed a law that said bar admissions data must remain confidential if it “may identify an individual applicant.”

At that point, the State Bar argued that giving the professor and the First Amendment group what it wanted would violate the new state law. African-American bar association groups have also filed briefs supporting the bar’s position and warning that granting the records request would violate their members’ right to privacy.

Superior Court Judge Mary Wiss of San Francisco rejected the State Bar’s interpretation of the law, refusing to dismiss the lawsuit. In a ruling handed down Tuesday, she wrote that lawmakers enacted the law with a “clear intent to increase transparency within the State Bar while also protecting applicants’ privacy expectations.”

The uncertainty remaining, she wrote, is “whether the information sought by Petitioners can be produced without disclosing any identifying information.” That question will be answered in a bench trial scheduled in July.