Law Professor Wins California Court Fight Over Affirmative Action Effects - Higher Education

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Law Professor Wins California Court Fight Over Affirmative Action Effects


by Paul Elias, Associated Press

SAN FRANCISCO—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.

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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.

About 14,000 applicants take the test each year in in February and July in California.

Sander’s critics say there would be far fewer black attorneys if affirmative action admissions policy were scrapped.

Sander filed a lawsuit in San Francisco Superior Court seeking the data and was joined by the California First Amendment Coalition, a nonprofit organization.

The trial judge ruled in favor of the state bar, but the California Court of Appeal reversed that decision in 2011.

Since the state Supreme Court has agreed to accept the case, many California newspapers have joined with politically conservative nonprofits such as the Pacific Legal Foundation in urging release of the data.

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Several minority and lawyer groups have sided with the state bar examiners’ position that the data should remain confidential.


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One Response to Law Professor Wins California Court Fight Over Affirmative Action Effects

  1. Why would affirmative action proponents be against bringing this data out into the open? Maybe it will show the great benefits of AA? Maybe it will show that minorities make great lawyers?

    What are they afraid of?

    Rex Remes
    January 25, 2014 at 8:19 am

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