October 11, 2013

Oral argument held in Sander v. State Bar of California

By Joshua P. Thompson Senior Attorney

Earlier this week, the California Supreme Court heard oral argument in Sander v. State Bar of California.  This case concerns whether the State Bar is a public agency that is required to disclose documents when presented with a Public Records Act request.  The “Sander” in the case is longtime PLF friend, Richard Sander.

In addition to being a longtime PLF friend, Professor Sander is the author of Mismatch, a thoroughly researched book that argues against racial preferences.  According to Professor Sander, recipients of racial preferences tend to perform worse in schools where they gained admittance due to racial preference.  Because they are less academically prepared — compared to their peers who did not receive racial preferences — the recipients of racial preferences tend to do worse academically.  This results in shifting majors, low GPAs, dropout, etc.  In other words, contrary to the conventional belief that racial preferences benefit those that receive them, Professor Sander’s research reveals that those individuals are actually far worse off than they would have been without the racial preference.

In this case, Professor Sander is seeking data from the State Bar that would reveal whether this mismatch effect is occurring in law schools.  It is no secret that law schools across the country employ racial preferences.  Professor Sander would like to see if those racial preferences help or harm law school graduates.  The State Bar, on the other hand, would rather pretend that there is no debate over the utility of racial preferences.  The State Bar argues that it is not required to disclose the documents Professor Sander seeks, because it is not a public agency, and/or the data sought are not “public records.” Fortunately, according to reports from the oral argument, the high court does not seem too accepting of the State Bar’s argument.

PLF has been involved in this case for years.  In the Supreme Court, we filed a brief explaining that the Court should consider the immense public interest and order disclosure of the documents.  Essentially, PLF’s brief makes one overall point: if racial preferences are actually harming the individuals they are designed to benefit, doesn’t the public have the right to know?  The State Bar has access to data that will provide a deeper understanding on the utility of racial preferences.   While it surely won’t end the debate, the wealth of data on the (in)effectiveness of racial preferences possessed by the State Bar counsels strongly in favor of disclosure.

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