In 2004, University of California at Los Angeles law professor Richard Sander released a study called A Systemic Analysis of Affirmative Action in American Law Schools (PDF), in which he contends that law school race-based preferences result in fewer black lawyers, because blacks admitted under these conditions are placed in schools that exceed their levels of preparation. As a result, they fail the bar exam at higher rates.
In 2007, Sander asked the State Bar’s Committee of Bar Examiners for historical data on past bar exams, and the committee refused, citing privacy concerns. Sander asked the state’s highest court to compel the committee to release the data. The court denied his request, also on privacy grounds, and recommended he re-file in the appropriate court.
Sander filed in the California Superior Court for San Francisco County. Last week, the judge ruled that the state bar was not legally obligated to release the data. An excerpt:
Judge Karnow’s ruling was technically a “proposed statement of decision,” but it is expected to become final after a 15-day period for comment from the lawyers for both sides. The judge held that the researchers’ argument for access to the data under public-records laws relied on a definition of “public document” that was overly broad, and could be interpreted as covering judges’ rough notes, grand-jury transcripts, and other documents that the courts have long held to be exempt.
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This article does not give the description of the documents that were being requested. I am unaware of any documents kept by the State Bar or the state’s courts that record the race of attorneys. I was admitted to practice law in California in 1983 and cannot recall any form that requested my race. If the description of the documents Professor Sander sought is the problem, he can submit a new request that avoids the documents that are objectionable.
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