PUBLIC INFORMATION — Mike McKee, reporting in the San Francisco Recorder, notes that UCLA law professor Richard
Sander's long-proposed study of law school affirmative action policies'
effect, if any, on California State Bar examinations' pass rates met another obstacle recently. In a tentative opinion, San Francisco Superior
Court Judge Curtis Karnow concluded that the documents Sander seekshistorical data on past bar examsdon't fall within the
scope of documents traditionally subject to public disclosure.
"None of the data at issue is presented to a court and none ever is
used in any form of adjudicatory proceeding," he wrote in Sander v. The State Bar of California, 508880,
"even within the confines of the State Bar with respect, for example,
to how any applicant is processed.
"That is," he added, "even were I to expand the notion of
'adjudication' to reach the work of the State Bar in evaluating its
applicants, the data sought by Sander would not qualify."
Sander and the San Rafael-based First Amendment Coalition, a co-plaintiff in
the case, would get a chance to change Karnow's mind during a hearing.
Sander has tried to obtain the State Bar data for four years in an
effort to build on his own 2004 study (PDF) that suggested racial
preferences might contribute to black students' high bar-exam failure
rates nationwide. He hypothesizes that affirmative action gave minority
students access to elite law schools for which they weren't academically
The State Bar has repeatedly rejected Sander's requests, saying the
information he wants is confidential and was collected with the
understanding it wouldn't be released to third parties.
In his tentative ruling, Karnow also refuted Sander's arguments that Proposition 59 — passed by the voters
in 2004 to make access to public records a civil right under the state
Constitution — applied to every court document.
"This is a stunning shift from what I have termed the traditional
test," Karnow wrote, noting that there was no evidence the voters
intended the measure to have such a "remarkable reach in modifying the
state Constitution and decades of legal development."
Karnow said that if Prop 59 meant what Sander suggested, "then
judges' rough notes and other internal documents, which under
traditional law are not to be disclosed … would be open for public
inspection. So too grand jury transcripts would have to be disclosed —
but they are not."
The judge, however, left one issue up in the air — whether data in
electronic records, "which must be massaged to some extent for
production," become "new" records that are disclosable.
Without expert declarations, Karnow held, the issue "is likely not
ripe for adjudication."
Neither Sander's attorney, Jane Yakowitz, director of Project SEAPHE
(which stands for Scale and Effect of Admissions Preferences in Higher
Education), nor James Chadwick, a partner in Sheppard,
Mullin, Richter & Hampton's Menlo Park, Calif., office who
represents the California First Amendment Coalition, returned calls
Neither did James Wagstaffe, a partner at San Francisco's Kerr
& Wagstaffe who represents the State Bar.