FedSoc Blog

Affirmative Action Foe Wins California Court Fight to Obtain Bar Exam Ethnic Data

Avatar

by Publius
Posted December 19, 2013, 5:46 PM

The Associate Press reports:

In a bitter fight over the effects of affirmative action, the California Supreme Court ruled Thursday that law school data on race, attendance and grades should be available to the public.

The unanimous decision represents a legal victory for a law professor seeking to test his theory that minority students are actually harmed by preferential admissions policies.

University of California, Los Angeles law professor Richard Sander created a firestorm when he published his "mismatch theory" in the Stanford Law Review in 2004.

Critics swiftly attacked his conclusions, saying Sander understated the positive effects of affirmative action and based his thinking on inadequate statistics.

To further his research, Sander sought the data with a public records request in 2008. The state bar association denied the request, prompting the lawsuit.

Sander said Thursday that the state bar database is "unparalleled" to other demographic sources he uses in his research.

"Having access to this large database is just so enormously valuable," Sander said. "This is a big breakthrough."

State bar officials declined comment Thursday.

The state Supreme Court ordered the case returned to a trial judge to determine whether the requested information can be released to Sander without violating applicants' privacy.

In its ruling, the court insisted that the identities of test takers must be protected from disclosure.

Sander and his lawyers said Thursday they are willing to pay the expenses the state bar may incur in redacting names and otherwise protecting the identities of exam applicants in exchange for access to the data.

State bar authorities had argued that releasing the data would violate its promise of confidentiality to the 15,000 or so applicants who take the test annually.

State bar attorneys argued that the state bar is part of the judicial branch and not subject to the same open-records laws as other public agencies.

Supreme Court Chief Justice Tani Cantil-Sakauye, however, stated that judicial branch records, like those of other public agencies, are open so long as "there is a legitimate public interest" and no other factor outweighs disclosure.

"The public does have a legitimate interest in the activities of the state bar in administering the bar exam and the admissions process," the chief justice wrote for the unanimous court. "In particular, it seems beyond dispute that the public has a legitimate interest in whether different groups of applicants, based on race, sex or ethnicity, perform differently on the bar examination and whether any disparities in performance are the result of the admissions process or of other factors."

Sander wants information on race, attendance and grades at law schools, test scores and the rate at which exam takers passed the test. . . .

In October 2012, Sander spoke about the mismatch theory in a FedSoc Civil Rights Practice Group podcast. You can listen to it here.

Search

Categories

Archives

Originally Speaking Debate Archive

Blog Roll