December 19, 2013

State Bar of California must produce records … probably

By Joshua P. Thompson Senior Attorney

Today, the California Supreme Court issued its opinion in Sander v. State Bar of CaliforniaIn this case, longtime PLF friend and author of Mismatch, Professor Richard Sander, seeks data from the State Bar that would reveal whether racial preferences harm the students that receive them.  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.

The State Bar, on the other hand, would rather pretend that there is no debate over the utility of racial preferences. The State Bar argued that it is not required to disclose the records under the common law, Public Records Act, or the California Constitution.  Today the California Supreme Court reject the Bar’s arguments.  It held that the common law right of access applies to the State Bar.  In its very thorough and unanimous opinion, the Court rejected the Bar’s many attempts to distinguish the relevant caselaw on the common law right of access.

After holding that the State Bar of California is subject to the common right of access to public records, the Court went on to ask whether the State Bar is, in fact, required to disclose the data.  Regarding the first factor — whether there is a sufficient public interest in disclosure of the public records — the Court once again ruled in favor of disclosure.  In a very important passage, the Court held:

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.

PLF’s amicus brief in this case, was on this precise issue.    Essentially, PLF’s brief made 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; the public’s interest in this data is great.

Unfortunately, the Court also said that is was not prepared to rule on the second factor — whether there are countervailing interests that would prevent disclosure.  On this point, the Bar makes two arguments.  First, the Bar argues that there are privacy concerns that would be implicated if it is forced to release its records, since it is not possible to “de-identify” the data in its possession.  The Court seemed skeptical of this argument: “The State Bar’s argument that disclosure of the requested data would violate applicants’ privacy even if it cannot be connected to them as individuals is not supported by authority.”  However, the Court noted that there was a dispute of fact as to whether the data could be provided in a form that de-identifies the applicants, so it remanded to the trial court for a determination of that issue.  Second, the Bar argued that requiring it to de-identify students would require making “new” records, and would be overly burdensome. Again, the Court seemed skeptical: “In light of our holding recognizing the public’s interest in the admissions database, the State Bar may choose to implement these proposals or may propose other measures that will satisfy the public’s right of access while protecting applicants’ privacy.”  Nevertheless, because the “overly burdensome” argument requires some factual development, the court remanded to the trial court for further factual findings.

While the California Supreme Court’s opinion does not require the State Bar to disclose the records yet, it has made clear that there is a public right to access these records.  Furthermore, it seems very skeptical of the remaining defenses available to the State Bar.  This is a great opinion for open government, and, furthermore, this opinion will likely result in an open discussion on the utility of racial preferences.  The State Bar of California has vigorously defended releasing the data that will help Professor Sander study the effects of preferences on minority law students.  This data, regardless of what it eventually shows, can only serve to provide the public, politicians, and minorities more information for deciding whether race-preferences serve any beneficial function.

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