Paul L. Caron

Friday, April 15, 2016

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

MismatchFollowing 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.

Legal Education, Scholarship | Permalink


One aspect of a "mismatch theory" would be that if the policies put people in situations for which they are not prepared then the consequences would be seen in their performance in law school more than anything else such as a bar exam. Plus, since the educational experience at virtually all law schools are equivalent why would it make a difference on bar exams--unless the argument is the psychological impact of not doing well competitively v. other law students in high ranking law schools. So the idea must apparently be that certain students who benefited from affirmative action policies should not have been admitted to law school AT ALL. That would be hard to establish. But in the context of current law school admissions it is pretty much a moot point because revenue starving law schools are admitting anyone capable of breathing.

Posted by: David | Apr 18, 2016 10:23:21 AM

He would probably lose if law school data is included or perhaps date of test.
It is possible there is only one of a particular minority in some of the classes.

Posted by: MikeN | Apr 18, 2016 5:27:25 AM

Jolly, the California State Bar might have information about the race of applicants. It is highly unlikely that it has information more precise than that (i.e., about whether the person is ethnically Jewish, Irish, Italian, WASP, etc.). Also, the names of all attorneys that have been admitted to the California State Bar are publicly available.

Posted by: Ira | Apr 17, 2016 6:25:12 PM

Of course the state bar can produce this data. The US Census handles this problem all the time. The better question is whether the data, once produced in a way that protects the privacy of the individuals, is of any use to the author. I suspect it will be, but its usefulness may be limited.

Posted by: Daniel | Apr 16, 2016 5:17:34 PM

Race is easy, because they'll all check "white", but ethnicity is a problem because they'd rather the public didn't know how many of them are Jews. (proven by the fact that you'll find the same secrecy in the medical and dental professions) I think that Jewish culture may have developed a penchant for ethnic secrecy as result of WW2, but it may be older than that as well.

Posted by: Jolly Roger | Apr 16, 2016 6:05:50 AM