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Tuesday, August 19, 2008

 

State Bar Files Response to Bar Application Records Request

By a MetNews Staff Writer

Metropolitan News-Enterprise

The California State Bar argued yesterday in papers filed with the California Supreme Court that personal and academic information about bar examination applicants cannot be released to a UCLA researcher.

Responding to a writ filed earlier this month by UCLA law professor Richard Sander and others seeking disclosure of the information, the State Bar contended that assurances of confidentiality and limited use given to applicants when the personal and academic information was collected precluded its release.

Sander, joined by the California First Amendment Coalition and civil rights activist Joe Hicks, petitioned the Supreme Court earlier this month to direct the State Bar to hand over the bar exam results, gender, race and law school academic credentials of bar exam applicants. They asked that the data be redacted to protect the privacy of test takers.

Sander theorizes 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 that preferential admissions policies may actually harm, rather than help, students of color.

But the State Bar argues that Sander has no right to see or use personal and private information of bar exam applicants without their consent.

It contends there is no merit to Sander’s argument that personal data provided by bar applicants is a “court document” like other public records in which a right of access exists, and rejects Sander’s argument that Proposition 59—the November 2004 public records initiative—altered the common law distinction between public and non-public judicial records.

The State Bar further argues that Sander is not simply seeking a copy of an existing bar record, and that disclosure would require it to work with Sander 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,” State Bar President Jeff Bleich said.

“The members of the bar’s Board of Governors often disagree, but the board was unanimous in concluding that to disclose this information would violate a bar applicant’s right to privacy. We made a promise to exam-takers when they applied for admission that we would not disclose any private information that might make their confidential academic record and bar exam results publicly known without their consent. We must keep that promise.”

The Committee of Bar Examiners and State Bar’s Board of Governors have both previously rejected Sander’s request for the information.




Press Release:

State Bar Files Response to Richard Sander Writ Seeking Confidential Bar Exam Information

Aug. 18, 2008

SAN FRANCISCO, Aug 18, 2008 (BUSINESS WIRE) -- Personal 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 argues in papers filed with the Supreme Court today.
In its response to a writ filed earlier this month by UCLA law professor Richard Sander and others, 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 State Bar with an assurance that it would be kept confidential and used only by the bar to assure 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. "The members of the bar's Board of Governors often disagree, but the board was unanimous in concluding that to disclose this information would violate a bar applicant's right to privacy. We made a promise to exam-takers when they applied for admission that we would not disclose any private information that might make their confidential academic record and bar exam results publicly known without their consent. We must keep that promise."
Sander, joined by the California First Amendment Coalition and civil rights activist Joe Hicks, went directly to the Supreme Court Aug. 7 to petition that it direct the bar to hand over the records. They asked that the data be redacted to protect the privacy of test takers.
Sander theorizes 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 that preferential admissions policies may actually harm, rather than help, students of color.
The Committee of Bar Examiners and Board of Governors rejected Sander's request for applicants' bar exam results, gender, race and law school academic credentials after reviewing it in detail and considering the comments of numerous constituents, many of whom had provided information with the understanding it was confidential.
Founded in 1927 by the State Legislature, the State Bar of California is an administrative arm of the California Supreme Court, serving the public and seeking to improve the justice system for more than 80 years. All lawyers practicing law in California must be members of the State Bar. By August 2008, membership reached more than 217,500.
SOURCE: State Bar of California
State Bar of California
Diane Curtis, 415-538-2028
diane.curtis@calbar.ca.gov