Bar exam dispute isn't about politics

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An earlier version of this article incorrectly stated that Richard H. Sander's research on affirmative action is funded by a grant from the conservative Sarah Scaife Foundation.

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Proponents of equal opportunity do not fear Professor Richard H. Sander's hypothesis that affirmative action puts black law students in institutions at which they are doomed to fail. Our opposition to his specific request for bar exam data is rooted in the protection of exam takers' privacy and compliance with the law. The Times' editorial dismisses these concerns as "spurious" and then provides no explanation to support that view. Instead, The Times advances Sander's and the California First Amendment Coalition's attempts to convert this into a controversy over affirmative action because their anti-privacy arguments have no merit.

For example, in addition to bar scores, Sander wants to obtain the exam takers' grade point averages as both undergraduates and law school students and their Law School Admission Test scores. Even individuals who take the bar exam cannot access their own scores.

The California State Bar cannot disclose information provided by exam applicants no matter the data's relevance in a public policy debate, because state and federal law precludes such disclosure absent consent. One's private records do not become public records, accessible to anyone, simply because a person applies to take a state exam and becomes part of a database.

It is on these legal grounds that the State Bar's Board of Governors voted unanimously to deny Sander's request and why many prominent lawyers support the bar's protection of exam takers' data. In a Nov. 7, 2007, letter to the State Bar president and chair of the bar's Regulations, Admissions and Discipline Committee, 28 lawyers and leaders of bar organizations, both local and statewide, wrote, "The State Bar holds the confidential information of Bar applicants in trust. It is not at liberty to divulge these applicants' confidential information because they have a right to privacy in this information and a right to due process with respect to its disclosure."

Sander's research design solves neither the problem of consent nor the problem of privacy. Given the current demographic makeup of many of California's top law schools, simply removing names and other identifying characteristics does not ensure the confidentiality of all applicants.

At UC Berkeley and UCLA law schools, several classes have had 10 or fewer black students since the adoption of Proposition 209, the 1996 voter initiative that banned affirmative action in state institutions. Small numbers of black students in a class are typical of some private law schools as well. Under such circumstances, even "anonymized" data can still render persons easily traceable, and in such cases the law prohibits disclosure of academic records without consent. As Stanford Law School Dean Larry Kramer wrote in a letter to the State Bar on this issue last year, the use of these records envisioned by the Sander team would violate the Family Educational Rights and Privacy Act of 1974. Indeed, the disclosure of such educational records presents a serious legal question not fairly characterized as "spurious."

And to the extent that the issue of political motivation or orthodoxy is invoked, it surely should be considered with respect to all sides. After all, Sander's research enjoys the full support of all of the conservatives now in control of the U.S. Civil Rights Commission, including Gail Heriot -- one of the authors of Proposition 209.

That Sander has a right to advocate his position is undeniable. He doesn't have the right to acquire personal and confidential information of bar exam takers when the law mandates otherwise.

Anthony Solana Jr. is president and chairman of For People of Color Inc. Sara Jackson is the Judge Constance Baker Motley Civil Rights Fellow at the Equal Justice Society.