EJS submitted the following commentary by Anthony Solana, Jr. and Sara Jackson in response to an opinion piece written by Peter Scheer of the California First Amendment Coalition. CFAC has joined UCLA Law professor Richard Sander in a lawsuit demanding that the State Bar of California turn over confidential data on state bar exam takers for research by Sander that has been roundly criticized. CFAC published this piece on their site.
Peter Scheer’s Aug. 20 commentary defended a suit by Sander and CFAC against the State Bar to obtain the academic records and exam scores of applicants to the Bar. Sander wants exam takers’ undergraduate and law school GPA, LSAT as well as bar scores – even though individuals who take the bar cannot access these scores themselves.
Scheer claims that the decision of the State Bar to deny access to these records was motivated by “political correctness.” Since the initial request from Sander was tied to his controversial research asserting that affirmative action puts Black law students in institutions where they are doomed to fail, objections to the release of the data are summarily dismissed as reflecting a benighted adherence to liberal orthodoxy.
Obscured by the charges of “political correctness” is the paramount legal issue Sander’s request presents: privacy. The information provided to the Bar by exam applicants cannot be disclosed by the Bar, irrespective of its relevance in a public policy debate, because state and federal law precludes its disclosure absent consent.
When applicants to the bar applied to take the exam, they were asked to provide personal information on the Bar’s promise that it would be used only for specific and limited purposes: to determine whether an applicant met the requirements to sit for the Bar and for the Bar’s own internal studies.
This express limited written consent does not authorize the Bar to give this highly confidential information to anyone without permission. Because the Bar made this promise it is legally and morally bound to keep it.
Federal law protects the privacy of these educational records as well. One’s private records do not become public records, accessible to anyone, simply because a person applies to take a state exam and becomes part of a database.
It is on these legal grounds that many prominent lawyers support the Bar’s protection of bar exam takers data. In a Nov. 7, 2007, letter to the State Bar president and chair of the Bar’s Regulations, Admissions & Discipline Committee, 28 lawyers and leaders of bar organizations, both local and statewide, wrote:
“The State Bar holds the confidential information of Bar applicants in trust. It is not at liberty to divulge these applicants’ confidential information because they have a right to privacy in this information and a right to due process with respect to its disclosure.”
Sander’s research design solves neither the problem of consent nor the problem of privacy. Given the current demographic makeup of many of California’s top law schools, simply removing names and other identifying characteristics does not ensure the confidentiality of all applicants. For example, at UC Berkeley and UCLA Law Schools several classes have had 10 or fewer Black students since the adoption of Proposition 209. Small numbers of Black students in a class are typical of some private law schools as well. Under such circumstances, even “anonymized” data can still render persons easily traceable, and in such cases the law prohibits disclosure of academic records without consent.
As Dean Larry Kramer of Stanford Law School stated in a letter to the State Bar on this issue last year: “[t]he use of these records envisioned by the Sander team would violate FERPA [the Family Education Rights and Privacy Act of 1974].”
At the very least, the foregoing indicates that the disclosure of these educational records presents a serious legal question, not fairly characterized as a matter of “political correctness.”
And to the extent that the issue of political motivation or orthodoxy is invoked, it surely should be considered with respect to all sides. After all, Sander’s research is funded by a
$1 $1.2 million grant from the conservative Scaife Foundation Searle Freedom Trust (update: read correction here) and enjoys the full support of all of the conservatives now in control of the U.S. Civil Rights Commission, including Gail Heriot-one of the authors of Proposition 209. At no point in Scheer’s commentary are these facts mentioned.
Nor does Scheer mention the fact that there have been numerous scholarly criticisms by leading social scientists and legal scholars challenging the methodological integrity of Sander’s work, and raising the question of whether he has proven his claims. The questions raised are particularly important since it is unclear the extent to which any of Sander’s articles on this topic were peer-reviewed and none of them is published in a peer-reviewed journal.
Sander’s unsuccessful effort to obtain National Science Foundation funding for this project also raises questions about its methodological soundness. According to some reviewers (whose evaluations were published on Sander’s website), Sander’s mismatch hypothesis cannot reasonably be tested by analyzing the bar scores of Black and Latino test takers.
Sander’s research conclusions largely remain uncorroborated. According to one researcher, since Sander’s article on the mismatch theory was published almost four years ago, “I have been unable to find a published article or working paper in an academic venue that defends Sander’s work, other than his own.” Sander might well contend that the absence of concurring work is due to the fear of staking out a controversial position. But an equally plausible hypothesis – and one well supported by critiques – is that significant questions exist as to whether he has proven what he claims. Under the guise of being balanced, Scheer’s commentary considers none of this.
That Sander has a right to advocate his position is undeniable. What he does not have is a right to acquire personal and confidential information of bar exam takers when the law mandates otherwise.
Anthony Solana, Jr., is president and chairperson of For People of Color, Inc. Sara Jackson is the Equal Justice Society Judge Constance Baker Motley Civil Rights Fellow. More information on this issue, visit www.equaljusticesociety.org.