SAN FRANCISCO – In an August article for the California Bar Journal, Laura Ernde reported on the Sander v. State Bar of California case that
will have closing briefs in September, heard by Judge Mary E. Wiss, to fully
determine the necessary parameters needed to protect bar applicants’ privacy
with regards to research publications.
“The lawsuit was brought by UCLA law professor Richard
Sander and others who seek 36 years of detailed information about bar
applicants to conduct research on law school admissions practices,” the article
Sander is seeking information on race, LSAT and bar exam scores and law school grade-point average.
The article explained that researchers want the data to be
released in a “de-identified” form, but the California State Bar opposes the
release of the data, arguing that it violates promises it made to law students
regarding privacy and limited use of their records and personal information.
“In addition, the bar argues that the requesters’ proposal
does not render the data truly anonymous and exposes individuals to a high risk
of re-identification,” the article said. “No other state bar has released this
kind of data.”
Ernde reported that back in 2007, the State Bar refused to
release research data because it was concerned about how it violated
applicant privacy. In response, Sander sued then as well, but lost because the
court explained that applicant records were not public records.
“The privacy rights of bar members and people of color in
the legal profession and law students who may be unfairly singled out are of
paramount importance to the State Bar,” State Bar Executive Director Elizabeth
Rindskopf Parker said to Ernde.
When the State Bar became subject to the California Public
Records Act in January, Sander readmitted his complaint to publish the
36 years of compiled research.
But with a new provision added to the State Bar Act
providing that State Bar admissions records are confidential and shall not be
released, it creates a new conflict between access to public records and bar
The case went trial last in July before Judge Wiss with a
focus on two issues: whether the data may identify an individual applicant and whether
the modifications of the data suggested by researchers require the creation of
a new document beyond the scope of the Public Records Act.
“The requesters have offered alternative protocols they say
will allow the data to be released without identifying individuals,” the
article said. “Their expert, data scientist Luk Arbuckle, testified that the
various protocols provided a reasonable level of protection against identification.
But he admitted that no de-identification of the data could wholly eliminate
the risk of re-identification.”
Ernde reported that a number of individuals and groups are
concerned that releasing applicant information could stigmatize them, and the
usefulness of the information is not worth the harm it could cause to
individuals and the profession.