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.
Response from CFAC’s and Sander’s attorney James Chadwick:I respectfully disagree. The premises of the Equal Justice Society’s objections to the litigation are mistaken.One premise is that the data is being sought to support Prof. Sander’s claims.That is not true. The records are being sought so that all interested researchers can have access to them, in order to conduct research that the data they contain are uniquely capable of supporting. If the records are made public in response to CFAC’s petition, they will be available to all researchers, including those who disagree with Prof. Sander. Moreover, your premise implies that the data will be manipulated to support Prof. Sander’s hypothesis, regardless of what it actually demonstrates. That is not accurate. The records will be used to evaluate whether there is or is not support for that hypothesis, and the results of that analysis will be made public regardless of what the records show.Your assertion that state and federal law prohibit the disclosure of these records without individual consent is also incorrect.As the Equal Justice Society is aware, the requests by Prof. Sander, Mr. Hicks, and CFAC specifically call for the elimination of any information that would directly identify bar examinees. Moreover, they propose the adoption of redaction procedures that will ensure that no individual examinee can be indirectly identified. Thus, for example, disclosure pursuant to the requested procedures would ensure that no combination of characteristics that might conceivably make an examinee indirectly identifiable will ever apply to a group smaller than five. Thus, no individual examinee will be identifiable. Experts in data anonymization have confirmed this.Although EJS does not identify the basis for its assertion that disclosure would violate state and federal law, we have thoroughly researched and considered the applicable provisions of state and federal law, and it is clear that they do not prohibit disclosure of the records in the manner that CFAC and the other petitioners have requested. The Family Educational Rights and Privacy Act (FERPA) governs the privacy and disclosure of educational records. Under FERPA, anonymized educational records are routinely made public, by education institutions and by the federal government itself. Every case we have found addressing a request such as that made by CFAC held that disclosure was required, and does not violate FERPA. Notably, in its opposition to our petition in the California Supreme Court, the State Bar does not assert that disclosure would violate FERPA. Nor would disclosure of anonymized records violate the California Constitution’s protection for privacy, because California law does not preclude the public disclosure of records from which identifying information has been removed.To the extent that EJS nonetheless believes that disclosure of the records in the manner requested by CFAC is improper, it should examine and consider the reports and studies that have been publicly disseminated by the State Bar for over thirty years. For example, the State Bar’s reports on each of the semi-annual bar examinations routinely combine indirect identifiers such as law school, race, and bar passage in a way that describes groups of examinees that may be as small as a single individual. The State Bar has determined that the disclosure of this information is not contrary to federal or state law. It cannot coherently assert that its own reports and studies comply with the law, but that disclosure pursuant to the more protective procedures proposed by CFAC in this case would not.Finally, EJS suggests that the proposition that Prof. Sander’s mismatch hypothesis is “uncorroborated” means that CFAC should not seek records relevant to proving or disproving that hypothesis, and that the Supreme Court should not release such records.Assuming, for the moment, the validity of the proposition that Prof. Sander’s hypothesis has not been corroborated, I am surprised that EJS would take the position that a state agency should not be required to release records sought to determine whether such a hypothesis can be corroborated. First, where, as here, government records will cast light on an important social and governmental issue, the need to test such hypotheses is among the most compelling reasons for making records public. Second, the logic of this objection is perfectly circular: the hypothesis has not been corroborated, so the records that might corroborate it should not be made public. By that reasoning, disclosure would be appropriate only when it was unnecessary, i.e., if the hypothesis had already been proven.I encourage EJS to reconsider its opposition to disclosure.If these records cannot be released in order to provide a basis for research that might support Prof. Sander’s thesis, then they cannot be released in order to support research that might demonstrate, for example, that Proposition 209 has negatively impacted the diversity of the California Bar, that the California bar examination is racially biased, or that law schools are engaging in practices that systematically impair the performance of racial minorities. EJS should carefully consider whether it is content to rely upon the conclusions of the agency charged with administering the bar examination and the bar admissions process that there are no problems with the examination or the admissions process that might contribute to the reduction of diversity in the California Bar.The objective of the litigation is to provide a sound basis for evaluating issues regarding bar examination performance and admissions–regardless of the hypothesis sought to be tested. Our hope is that sound objective data will provide the foundation for sound objective decisions regarding how best to enhance and ensure the diversity of the California bar. Consistent with CFAC’s mission, we do not believe that suppressing information about public issues that can be provided without compromising personal privacy is consistent with anyone’s interests.===James Chadwick, an attorney in Palo Alto, represents the petitioners in the suit against the State Bar.
If the legal argument is that the bar is already publishing reports with some level of detail that makes persons identifiable, that does not justify the continuation of the practice. Certainly it cannot justify the publication of even more detailed information some of which the testakers themselves cannot see. The answer to a wrong is not to continue the wrong. Applicants who take the bar exam and do not want their data disclosed and have vigorously asserted their privacy interests have not waived any claim of privacy, whatever the Bar may or may not have done. As a practical matter, if the position taken by CFAC is correct — that they seek to make the data broadly available, not just to Sander — that only heightens the danger to privacy interests. If the records are truly public as they claim, then anyone can get them and will not be bound by any protocols or standards regarding what they do with them. Mr. Chadwick argues that if the data is not made available, an important policy question cannot be resolved. As many important research questions as there are in the world, we as a society have decided that you have to follow certain rules and ethical guidelines in investigating them. This is particularly so the investigation involves personal information about human beings and can impact their lives and well being. The problem here is that the rules require the consent of the subjects. And in this case, the subjects haven’t given it.
Reply by Peter Scheer:Keith,I respect your concerns about the privacy of test results, but they are misplaced. Bar data produced according to the specifications of our record request would not allow identification of the test-takers–not by Sander, not by researchers who disagree with him, and not by anyone else. When data are “anonymized” to the extent that individuals are not identifiable, privacy is not compromised. That is true not just for this data, but in many other situations where, I’m quite confident, your organization would be among the first to argue that privacy considerations cannot stand in the way of disclosure.Consider, for example, a lawsuit against a public school district alleging a pattern of student class assignments that effectively denies qualified minority students the opportunity to take advanced placement courses. This claim can only be litigated by analysis of confidential student records. Surely you would not support a school district’s refusal, on privacy grounds, to produce the records. It is your right to disagree with Sander–and we would stand with you to defend that right. But the way to disagree is to dispute his interpretation of the data, not to block his (or any other scholar’s) academic research on an issue of clear public importance.Best Regards,Peter ScheerCFAC exec director
Peter – We continue to disagree with the assumptions you use to back Prof. Sander’s request to invade the privacy of bar exam takers.First, we dispute that Sander is conducting responsible research. As we state in our commentary, there’s been quite a few critiques of Sander’s methodology and an absence of concurring published research.The privacy in this case is mandated by law and the confidentiality the State Bar agreed to when exam takers provided their information.Disclosing this data is against federal and state law. Period.CFAC continues to frame this issue as one of malicious refusal to provide the data requested. Again, by law, this data cannot be released.Your hypothetical about what EJS’s position would be on a student assignment case does not support your claims.On your final point, our stand on this issue is primarily about the protection of privacy and adherence to the law. Our disagreements with Sander’s hypothesis pale in comparison to those two paramount issues.