March 19, 2013

A Public Records Act update and kudos to Davis

By Joshua P. Thompson Senior Attorney

Last month Pacific Legal Foundation sent Public Records Act requests to UC Berkeley and UC Davis.  As first uncovered by Professor Josh Blackman, the law journals at both schools had begun asking for the race and sex of authors who were submitting articles.  PLF sought documents from both schools to determine the extent to which the journals were using race and sex in their decision making. The responses from Davis and Berkeley differed significantly.  Their respective responses are below.

UC Davis

UC Davis first asked for an extension of time to search for all records that would be responsive to PLF’s request.  When it ultimately complied with our request last Friday, the disclosed records painted a very clear picture:  At some point early this year, the UC Davis Law Review tried a new article submission engine called Scholastica.  In order to set up its Scholastica account, the law review had to check a lot of boxes and complete a number of formalities.  One of the boxes it checked asked whether it would like to know the race and sex of authors who were submitting articles.  Shortly thereafter, Professor Blackman noticed and blew the story up.  Emails to and from Professor Blackman — which were disclosed in the school’s response to our request — reveal that the law review first thought it may be able to aggregate racial statistics without knowing the race of individual authors.  When it learned that every manuscript would be tagged with a race and sex identifier, however, the law review immediately unchecked the box.  Only then did it open up for submissions.

Let’s take a moment to give credit where credit is due.  The UC Davis Law Review was trying a new submission engine, and foolishly checked a box that asked authors to identify their race and sex when submitting articles.  When this came to its attention, the law review stopped the practice.  The school, students, and administration should be commended for their diligence, and their commitment to equality under the law.

UC Berkeley

Davis’s light shines brighter when contrasted with UC Berkeley.  In response to our specific request, Berkeley provided no documents.  It found a loophole.  It seems that nearly a hundred years ago, the California Law Review was incorporated independently from the law school. Thus, the law school stated it could provide no documents that were responsive to PLF’s request.  Because our requests asked for UC Berkeley’s decision to solicit race and sex information, and because the California Law Review was independent from the law school, the law school — according to its response — had no documents detailing its decision.

In the meantime, Professor Blackman had done his own investigation, and learned that — in contrast to UC Davis — the California Law Review specifically targeted submission engines in order to collect the race and sex information from individual authors.  Perhaps the California Law Review wanted the ability to factor the race and sex of authors into its publication decisions.

Even if the California Law Review is an independent corporation that is not subject to the Public Records Act, that does not necessarily mean it can refuse to follow Proposition 209 or the Equal Protection Clause.  It is run by Berkeley law students and professors.  It is housed in Boalt Hall.  It uses campus space, telephones, and email.  Ultimately, this would be a state action question — whether the California Law Review is a state actor for purposes of the Equal Protection Clause and/or Proposition 209.  But even if it is not — which seems unlikely — it would be still be subject to the Civil Rights laws, the Unruh Act, and other state and federal prohibitions against race and sex discrimination.

While that fight may still come, more information is needed.  To that end, PLF sent a new Public Records Act request to UC Berkeley yesterday.  [You can read it here.]  This time, our request is more precise.  Even if the the law school did not make the decision to solicit race and sex information from authors, they certainly will have documents that detail the California Law Review’s decision to do so.  According to the Public Records Act, those documents — if in the possession of the University and its officials — must still be disclosed.  We will keep you apprised of Berkeley’s response.

Let me, however, once again compliment UC Davis on its decision to stop soliciting race and sex information from authors.  Here’s to hoping the California Law Review follows its lead.

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