EJS, Civil Rights Advocates, Urge Calif. Supreme Court to Protect Privacy of Bar Exam Takers

The Equal Justice Society, Lawyers’ Committee for Civil Rights of the San Francisco Bay Area, and Asian Pacific American Legal Center filed an amicus brief (PDF) last week urging the Supreme Court of California to protect the privacy of State Bar exam takers by safeguarding the personal and confidential information they submit to the Bar.

UCLA law professor Richard Sander sued the State Bar of California in 2008 to obtain access to sixteen fields of data including an applicants’ race, gender, GPA, and bar exam scores in order to advance his widely-critiqued research attempting to prove that affirmative action in law schools actually harms Black students.

The amicus brief asserts that confidential bar applicant data is protected by law against the disclosure of such information to a third party. The State Bar of California may not disclose information provided by exam applicants because the California Constitution precludes its disclosure. 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 the State Bar Board of Governors voted unanimously to deny Sander’s request and why many prominent lawyers support the Bar’s protection of bar applicant data.

The brief also maintains that research such as that conducted by Sander is possible using data on bar applicants obtained with informed consent of the applicants. The plaintiffs in this case claim that it is unnecessary to obtain individual consent, even though such consent is required under the federal Family Educational Rights and Privacy Act (FERPA).

Sander is instead trying to acquire confidential raw data that could potentially identify individual applicants and be manipulated to create false understandings regarding the effects of race conscious admissions policies and success in the legal profession.

In the brief, the amici make clear that their opposition to the Sander study is not based on its subject matter but the fact that the study fails to meet quality standards of scientific integrity and could misrepresent the data for ideological purposes. Funding requests for the Sander study were rejected twice by the National Science Foundation and the study’s research has yet to be corroborated by other independent research.

San Francisco Superior Court Judge Curtis Karnow ruled that Sander’s request should be denied because the data he requested is not a public record under California law. A state appeals court later ruled that the bar exam applicant data were public documents and remanded the case to the trial court. The brief asks the state Supreme Court to affirm Judge Karnow’s decision in favor of protecting confidential applicant data.

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