California Bar Journal
CBJ - September 2008 #03.
Researcher sues bar for exam data
California Bar Journal September 2008 Researcher sues bar for exam dataBy Nancy McCarthyStaff WriterPersonal and academic information about applicants for the California bar examination is collected by the State Bar under assurances of confidentiality and limited use and therefore cannot be released to a UCLA researcher seeking the data, the State Bar argued in papers filed with the Supreme Court last month.
Richard Sander, a UCLA law professor and economist, along with the California First Amendment Coalition and Joe Hicks, a civil rights activist and former public member of the bar board of governors, sued the bar for data on bar exam applicants in order to determine whether preferential admission policies actually harm, rather than help, students of color. The Committee of Bar Examiners and the Board of Governors have refused Sander's previous requests.
In its response, the bar argues that:
Sander does not have a right to see or use personal and private information of bar exam applicants without their consent. Applicants provided information to the bar with assurances that it would be kept confidential and used only to ensure the exam's testing validity. There is no merit to Sander's argument that personal data provided by bar applicants is a "court document" that is like other public records. The right of access to court proceedings under case law applies only to transcripts, documents and other official records related to lawsuits filed in the courts. There is no merit to Sander's argument that Proposition 59, the November 2004 public records initiative, has changed this. In fact, courts have ruled that there has been no expansion of the types of court documents that must be made available. Sander is not simply seeking a copy of an existing bar record.Disclosure would require the State Bar to work with him to create data that is useful for his research purposes, but not that of the State Bar. "Applicants for the California bar exam provide a great deal of personal information to the State Bar under the clear understanding that their information will be kept confidential and only used for bar purposes," said President Jeff Bleich. "No applicant should be subjected-without warning and contrary to the...