Metropolitan News-Enterprise


Tuesday, November 8, 2016


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Judge Rejects UCLA Professor’s Bid for Data on Bar Exam Applicants


By a MetNews Staff Writer


The State Bar is not required to release personal and academic data on bar exam applicants to a UCLA law professor, a San Francisco Superior Court judge ruled yesterday.

Judge Mary E. Wiss said releasing the data to Richard Sander would constitute an unwarranted invasion of personal privacy. She denied a petition for writ of mandate, in litigation that has been ongoing for the last eight years.

Sander’s attorney told the MetNews his client may appeal.

Sander had requested access to applicants’ undergraduate and law school records, standardized test scores, ethnic background, and gender to use in conducting research on the large and persistent gap in bar exam passage rates among racial and ethnic groups.

He has advanced a theory that placing unqualified minority students in elite law schools results in lower bar pass rates than if they attended schools where their admissions credentials match those of their classmates. Calling the outcome the “mismatch effect,” he suggests preferential admissions policies may actually harm, rather than help, students of color.

The matter has been moving through the courts since the State Bar rejected his initial request. The initial ruling in the case was by San Francisco Superior Court Judge Curtis Karnow, who denied a writ petition brought by Sander, the California First Amendment Coalition, and civil rights activist Joe Hicks.

Hicks died in August.

Reversed on Appeal

Karnow found the State Bar could not be compelled to disclose the requested records pursuant to the common law right of access to public records or the First Amendment. The First District Court of Appeal reversed, however, saying the records were potentially subject to disclosure under the common law presumption of access to public documents.

The state Supreme Court affirmed in Sander v. Superior Court (2016) 58 Cal. 4th 300, saying that “under the common law right of public access, there is a sufficient public interest in the information contained in the admissions database such that the State Bar is required to provide access to it if the information can be provided in a form that protects the privacy of applicants and if no countervailing interest outweighs the public’s interest in disclosure.”

Wiss, in yesterday’s ruling, said the common law no longer applies to the case because the Legislature made the California Public Records Act applicable to the State Bar, effective Jan. 1 of this year. But that act contains a presumption favoring disclosure, so the burden was on the State Bar to prove that an exemption from disclosure applies.

The judge found that the petitioners were not entitled to relief because the State Bar could not comply with their request without changing existing protocols and creating new records, which cannot be compelled under the CPRA, and because statutory exemptions apply.

Exemption Emphasized

One of the exemptions cited by the judge is found in Business and Professions Code §6060.25, a State Bar Act provision that protects the confidentiality of any information “that may identify an individual applicant,” and does so “[n]otwithstanding any other law,” the judge emphasized.

The remaining exemptions found by the judge are in the CPRA itself, specifically Government Code §6254(c), exempting “[p]ersonnel, medical, or similar files, the disclosure of which would constitute an unwarranted invasion of personal privacy”; and §6255(a), the “catch-all” exemption that applies when “the public interest served by not disclosing the record clearly outweighs the public interest served by disclosure of the record.”

Balancing the competing interests, Wiss said the intervenors, a number of individuals, as well as Black Women Lawyers of Los Angeles and the John M. Langston Bar Association, had established that disclosure of the data could harm particular applicants. She cited a number of examples, including that of a University of North Carolina law professor and UCLA law graduate, who said that as one of just four black women in her class, she feared being re-identified from the data, costing her privacy and possibly tenure, as well as causing potential stigmatization based on race.

Wiss went on to say that non-disclosure would serve the public interest by protecting the State Bar’s ability to collect and release important data in the future and by protecting the State Bar from the burden of having to implement the protocols proposed by the petitioners for collecting and securing the data, as well as from burdensome requests in the future.

Jean-Paul Jassy of Jassy Vick Carolan, representing the petitioners, said:

“We respectfully disagree with the Court. We believe that the evidence shows that the privacy of applicants could be and would be protected, and that the burden on the State Bar would be minimal. We are seriously considering an appeal.”


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