Professor Rick Sander, of UCLA, has been seeking access to data that may bear on his "mismatch" thesis regarding effects of affirmative action. The State Bar of California denied a request by Sander for data regarding bar passage. The Supreme Court of California just ruled 7-0 in the suit brought by Sander (and others) over denial of access to the data.
But this is just the first phase of the litigation. The matter is being remanded to the trial court to examine how, if at all, the requested information can be disclosed without violating the confidentiality of individual bar applicants. In the now-completed first phase, the State Bar's position seemed contrived to me and the unanimous result seems to confirm that. It will be interesting to see how the Bar reacts in the second phase. I presume that the parties can negotiate a resolution if they care to. Opinion below; updates to follow. Excerpts below.
The public does have a legitimate interest in the activities of the State Bar in administering the bar exam and the admissions process. 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. Indeed, the State Bar uses the database to prepare a statistical analysis of the bar exam that reports the bar passage rates for various categories of applicants. Public access to the admissions database used by the State Bar to evaluate its admissions process would allow the public to independently ascertain and evaluate that process. Therefore, the public‟s interest in the information in the database would contribute to the public‟s understanding of the State Bar‟s admissions activities, and is sufficient to warrant further consideration of whether any countervailing consideration weighs against public access.
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The parties disagree concerning whether the information at issue can be provided in a form that does not breach the State Bar‟s promises of confidentiality. The State Bar contends that “the commonly held assumption that any data can be successfully [de-identified] as suggested by [plaintiffs], so that it can be made available to the public without risk that individual people‟s information be revealed, has proved to be false.” Plaintiffs counter that “[d]isclosure of de-identified information regarding individuals obtained from government databases is commonplace. . . . The routine release of such data refutes the claim that such information cannot be disclosed without undue risk of „re-identification‟ of those individuals.” This issue involves disputed questions of fact that we are not currently in a position to decide. By the parties‟ stipulation, litigation of this issue was reserved for the second phase of trial and may be decided in the trial court upon remand.
