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With his request for access to historical bar exam data from the California State Bar repeatedly rejected, a law professor has turned to the state Supreme Court. UCLA School of Law professor Richard Sander, along with former State Bar governor Joe Hicks and the California First Amendment Coalition, filed a writ petition Thursday asking the court to direct the State Bar to hand over those records with redactions to protect test takers’ privacy. CFAC Executive Director Peter Scheer said that the wrestling match had become a matter of access to public records and freedom of information. “I believe very strongly that these records the researchers need belong to the public, not to the Bar,” Scheer said. “I’m concerned, as is everybody, about rights of privacy. But I’m highly confident that if the Bar provides the records in the way that we had requested, that they will be truly anonymous.” Sander has been trying since 2006 to get the Bar’s data to build on a 2004 study he did that suggested affirmative action might be responsible for black students’ high bar failure rates nationwide. He postulated that race-based preferences had opened the doors of elite law schools to minority students who were academically unprepared, and that as a result, there were far fewer black lawyers in 2004 than there would have been if more minority students had attended — and thrived — at less elite law schools. Now Sander and Hicks are involved in a group that wants to test the controversial “mismatch” theory further. Their petition says that the number of test takers in California, their racial diversity and the quality of the Bar’s data collection make this state their best bet, but the State Bar has repeatedly rejected Sander’s requests for data that would include the race and academic credentials of each applicant, but not their names. The State Bar reiterated its objections in a statement Thursday, contending that private data submitted by bar exam applicants should not be released to a third party without signed prior consent from the law students. “This issue was thoroughly vetted last year by the Committee of Bar Examiners and by the full Board of Governors,” Bar President-Elect Holly Fujie said in the statement. “Professor Sander was given ample opportunity last year to present his case … and after listening to significant public comment during a public hearing, the Board voted unanimously to protect the confidentiality of our test takers.” Sander and his allies have previously tried to reassure the Bar that the information would be kept confidential, and to allay any fear that they had an agenda to use the information to undermine affirmative action. But their opponents have previously said Bar applicants didn’t provide personal data for any use other than internal State Bar studies, and several students or recent graduates testified to the Bar that they never expected their personal data to be shared with others. At least one opponent has also argued that the federal Family Educational Rights and Privacy Act prevents third-party access to the records. On Thursday, CFAC’s Scheer raised the question of academic freedom, contending that even Sanders’ critics had acknowledged the legitimacy of the research and the importance of the questions it raises. “It’s just that some people don’t want the research to continue to its conclusion, because it may be a conclusion that is politically incorrect, and that is something that should not even be considered by the State Bar.” Sheppard, Mullin, Richter & Hampton partner James Chadwick, who is representing Sander, Hicks and the CFAC, said that the court can either hear the case, send it to a superior court, or deny it without commenting. “We’ve made the argument that they can’t just deny it without comment because that would arguably deprive us of due process,” Chadwick said. “They should either take it and hear it on the merits, or to take it to the superior court.

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