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Judge denies law prof's request for bar-exam racial data

A judge in California has denied a law professor’s request for racial data on would-be lawyers who took the state bar exam.

Judge Mary Wiss of San Francisco said the anonymous data would violate personal privacy rights because it could be used to identify individuals, report the Wall Street Journal Law Blog, the Recorder (sub. req.) and the San Francisco Chronicle. She ruled in a suit by the First Amendment Coalition and University of California at Los Angeles law professor Richard Sander.

Sander wants data about the race, law schools, LSAT scores, law school and undergraduate grade point averages, and bar exam scores of bar applicants since 1972. He has suggested that affirmative action allows minority students to attend law schools for which they are not academically prepared, hurting their grades and their prospects of passing the bar exam.

The California Supreme Court ruled in 2013 that Sander could have access to the information if individuals’ privacy can be protected and no countervailing interest outweighs the public’s interest in disclosure. Wiss considered those issues at trial and found for the State Bar of California on both issues in her Nov. 7 opinion (PDF).

Wiss cited testimony from University of North Carolina law professor Erika Wilson, who said the data could be used to identify her because she is one of four black women in her law school graduating class.

Wiss said the requested data “presents significant risks of identification.” She also said the information “could generate unhealthy comparisons among lawyers, law students and other professionals, and impede the goal of achieving greater diversity in the legal profession.”

“The general public has a strong interest in avoiding unhealthy and unwarranted comparisons among legal professionals, including attorneys who are public figures, candidates for office, or those who serve in elected or appointed positions,” Wiss wrote. “Additionally, the public has a strong interest in maintaining and encouraging diversity in the legal profession, and in avoiding the stigmatization of individuals or groups of individuals.”

Wiss also said Sander’s request would require the state bar to recode data and create new records, and it is not required to do so under the state’s freedom of information law.

Sander’s lawyer told the Recorder he is considering an appeal.