My colleague Rick Sander — who is also an occasional guest-blogger on this blog — has for years been trying to get California Bar records that could help him test his “mismatch hypothesis”: the hypothesis that race-based preferences that let black and Latino students get into higher-ranked law schools actually end up hurting the very students they’re supposed to help. Here’s a summary of the argument from an op-ed by Rick Sander and by Vik Amar, who is not persuaded by Rick’s theory:
Imagine, for a moment, that a program designed to aid disadvantaged students might, instead, be seriously undermining their performance. Imagine that the schools administering the programs were told that the programs might be having this boomerang effect — but that no one investigated further because the programs were so popular and the prospect of change was so politically controversial.
Now imagine that an agency had collected enough information on student performance that it might, by carefully studying or releasing the data, illuminate both the problem and the possible solutions. What should the agency do?
This is not a hypothetical question. The schools involved are dozens of law schools in California and elsewhere, and the program is the system of affirmative action that enables hundreds of minority law students to attend more elite institutions than their credentials alone would allow. Data from across the country suggest to some researchers that when law students attend schools where their credentials (including LSAT scores and college grades) are much lower than the median at the school, they actually learn less, are less likely to graduate and are nearly twice as likely to fail the bar exam than they would have been had they gone to less elite schools. This is known as the “mismatch effect.”
The mismatch theory is controversial. One of us (Sander) has advanced it in the academic literature. The other (Amar) believes that while it raises substantial questions, it has not been empirically proved. Some dismiss the whole idea as nothing more than a politically motivated attack on affirmative action or, even worse, an attack on blacks and Latinos — the main recipients of current preferences. Many rightly point out that definitive conclusions are difficult because the data available to researchers thus far have been limited in very important ways.
Today, the California Court of Appeal decision in Sander v. State Bar gave Rick something of a victory, though the release of the records is by no means guaranteed:
Appellants Richard Sander, Joe Hicks and the California First Amendment Coalition seek access to admissions records from the State Bar of California (the Bar), subject to conditions designed to ensure the privacy of bar applicants, in order to conduct academic research on discrepancies in bar passage rates among racial and ethnic groups. After the Bar rejected Sander’s request, appellants filed this action for a writ of mandate to compel the Bar to release the information….
[Paragraph moved: -EV] We hold the [trial] court erred in ruling that the common law presumption of access to public information is limited to adjudicatory documents related to court proceedings and, to the extent the court acknowledged the common law presumptive right of access applies to public records generally, that it erred in declining to assess any countervailing public policy considerations against the public policy favoring access. Whether those considerations are such as to outweigh the presumptive right of access must therefore be addressed on remand, as must the relevance of the excluded declarations to those issues. The trial court is in the best position to weigh the competing interests and strike the appropriate balance….
The common law right of access to public documents originated long before, and independently of, the right of access to adjudicatory records grounded in the First Amendment…. [T]he policies underlying the common law right are deeply rooted in our democratic form of government. “The policy reasons for opening up government to the public have been expressed on numerous occasions throughout this nation’s history. Foremost among them is the goal of fulfilling our cherished ideal of creating a ‘government of the people.’ James Madison wrote: ‘A popular Government without popular information, or the means of acquiring it, is but a Prologue to a Farce or a Tragedy; or perhaps both. Knowledge will forever govern ignorance: And a people who mean to be their own Governors, must arm themselves with the power which knowledge gives.’ [Citations.] DeTocqueville felt that these same ideas were fundamental to the American tradition. In his perceptive commentaries about our system of government, he observed: ‘It is by taking a share in legislation that the American learns to know the law; it is by governing that he becomes educated about the formalities of government. The great work of society is daily performed before his eyes, and so to say, under his hands.’” Similar sentiments are found in our state’s legislative expressions of public policy as far back as 1953….
The Bar asserts that the common law right is circumscribed by the parameters of the parallel, but distinct, First Amendment right of access to court records, and therefore that it is limited to official adjudicatory records. We disagree. In contrast to the common law rule, the more recently developed right of access to court records grounded in the First Amendment derives from the United States Supreme Court’s recognition of a First Amendment right to open trials, and has generally been limited to official court records of adjudicatory proceedings….
We also disagree with the trial court’s conclusion that the First Amendment right of access to court documents has “absorbed” the common law right to government information. None of the cases cited by the Bar so hold, and our independent research has failed to produce any precedent that suggests the more recently established First Amendment right has swallowed up the historically and analytically distinct right under the common law. To the contrary, cases decided well after the genesis of the First Amendment right have continued to recognize the separate and distinct common law right of access. The two rights of access to government information remain independently viable despite areas of overlap….
The issue presented here may not inevitably lead to production of the documents and information sought by appellants. That would only occur after further proceedings in the trial court. We only consider whether the common law rule of presumptive access to public information extends to the Bar’s admission records, subject to balancing against the private interests implicated by disclosure.
The Bar provides no compelling reason that it does not. The Bar is a public corporation and the records sought relate to its official function of administering the bar exam, a matter of legitimate public interest….
Here, while the Bar’s rules address the disclosure of documents pertaining to many of its administrative responsibilities, they state that: “Applicant records are confidential unless required to be disclosed by law ….” Thus, even the Bar acknowledges that the confidentiality of applicant records is not absolute. Both case law and statute require the court to determine whether disclosure is required by balancing applicants’ privacy concerns and the burden imposed on the Bar against the strong public policy favoring openness in public affairs….