A California appeals court has breathed new life into an effort by researchers on affirmative action to force that state's regulatory agency for lawyers to hand over data related to the bar-examination passage rates of law-school graduates from different racial and ethnic groups.
In a ruling issued on Friday, a three-member panel of the state appeals court in San Francisco held that a lower court had erred in the legal reasoning it used in deciding last year that the State Bar of California had no legal obligation to release the data sought by Richard H. Sander, a professor of law at the University of California at Los Angeles, and Joe Hicks, a former governor of the California state bar who belongs to a consortium of affirmative-action researchers Mr. Sander organized.
The state bar has cited privacy concerns in refusing to disclose data on the bar-passage rates of different racial and ethnic groups to the consortium's members, and has rejected the researchers' argument that taking steps such as redacting names from documents would be sufficient to protect the identities of law-school graduates who took the bar examination.
The appeals-court panel, in reversing the lower court's decision to allow the state bar to withhold the data, held that the lower court had based its ruling on an overly narrow reading of the law governing public access to such information.
In focusing on legal precedents dealing with access to court trials under the First Amendment, the lower court had failed to take fully into account common-law precedents giving the public access to a much wider range of court documents than were at stake in the First Amendment cases, the panel said.
The lower court, it said, also erred in holding that common-law access to court records was limited to adjudicatory documents related to court proceedings, and did not also extend to the records of the bar, which is considered an arm of the state's Supreme Court in that it assists the court in matters related to the admission and disciplining of lawyers.
Last week's appeals-court ruling did not resolve the question of whether the state bar actually must hand over the requested data dealing with bar-examination performance. It directed the lower court to revisit the case and determine whether the potential public-policy benefits resulting from the researchers' access to such information outweigh the test takers' interest in confidentiality and any burdens imposed on the state bar by such information requests.
The lower court, it said, is best suited to craft an order directing the state bar to produce information in a manner that balances the concerns of both sides in the case.
Mr. Sander has generated controversy with his past research concluding that selective law schools' race-conscious admission policies set up many minority students for long-term failure. He and Mr. Hicks were joined in their lawsuit seeking the bar-passage data by the California First Amendment Coalition, a nonprofit organization that promotes open government access.
