Yesterday, the California Supreme Court handed down a unanimous decision (Sander v State Bar of California) in which Community Advocates’ vice president, Joe Hicks, was one of the two individual plaintiffs in whose favor the Court ruled. The case is an important victory in the effort to have greater transparency in government deliberations and in the very contentious and passionate discussion of affirmative action.
The case arises out of the research of UCLA Law School professor Richard Sander who has spent years exploring the issue of whether large admissions preferences may backfire against their intended beneficiaries---minority students. His thesis is that many of these students feel overwhelmed in schools for which their academic credentials did not prepare them. His assumption is that many of these students would do better in schools where their credentials were matched closer to the middle of the class.
Sander co-authored a book on his research, Mismatch: How Affirmative Action Hurts Students It's Intended to Help, and Why Universities Won't Admit It. Nearly a dozen other studies have found data to corroborate Sander’s findings.
Sander has argued that law school admissions and passage data of the State bar exam offer a testing ground to see whether, in fact, admits whose qualifications are low for the school they enter have done better or worse than expected when it comes to passing the bar examination. The data will reveal (since grade point averages, LSAT scores and a whole array of data are part of the State Bar’s records) what has transpired over the past forty years. Is affirmative action having its intended results?
Since 2006 Sander has endeavored to have the State Bar share its unmatched data base of those who have taken the bar exam since 1972 (some 246,000 applicants through 2007). His request to the State Bar specified that no individualized data be revealed---it would all be blind with double and triple checks to insure that no one’s privacy would be compromised.
Initially, the Bar’s researchers, and even key Bar officials, were enthusiastic and willing to engage in the research with Sander. But, as Sander has written, when word spread about his research, “Law school deans, no doubt concerned that the research could make public the dismal bar passage rates of students admitted with large preferences, mobilized in opposition.” Academic groups and others advocates of preferences complained about the illusory privacy issue and the Bar refused to cooperate. Parenthetically, the assertions of the Bar regarding the “privacy concerns of applicants” did not stand in the way when it made its data available to researchers whose intentions they deemed acceptable.
In 2008, Community Advocates’ Joe Hicks and a coalition of First Amendment-centered organizations (including the Los Angeles Times, The New York Times and the Associated Press) filed suit with Sander to gain access to the Bar’s data.
Yesterday, the California Supreme Court, in an exhaustive exploration of what constitutes a “public record” and what the “public’s right to know” is, concluded that
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.
The Court ordered the case returned to the trial court to explore the means that will be utilized to make the records public while insuring that no one’s privacy is compromised in the process.
This case, of which Community Advocates is proud to be a part, will hopefully result in a spirited and fact-based debate about affirmative action, diversity promotion, and what works and what looks like it works, but doesn’t. The State Bar’s storehouse of forty years of empirical data will aid the exploration of this terribly difficult topic.