Mike McKee, Law.com, September 23, 2008
Last week, that [California Supreme Court] denied Sander’s request for an order compelling the State Bar to cooperate with him. The justices didn’t rule on the merits of the request—which had been filed with the Supreme Court early last month—but rather indicated Sander should refile “in an appropriate court.”
James Chadwick, a partner in Sheppard, Mullin, Richter & Hampton’s Menlo Park, Calif., office who represents Sander and others in the case, said Monday he would refile “soon” in a superior court.
Sander has tried for two years to get the State Bar to provide him historical data—including race and academic credentials—on past bar exams. He wants the information to build on his 2004 study (.pdf) that suggested affirmative action might be responsible for black students’ high bar exam failure rates nationwide.
His controversial hypothesis holds that race-based preferences opened doors of elite law schools to minority students who weren’t academically prepared for such rigors. As a result, he theorizes, there are far fewer black lawyers than there would have been if minority students had attended—and prospered at—less prestigious law schools.
The State Bar’s Committee of Bar Examiners, which oversees the California bar exam, rejected Sander’s request in early 2007 and the State Bar Board of Governors followed suit late last year. They claimed that the information had been collected from bar exam applicants with the understanding that it wouldn’t be released for third-party use.
In fact, several minority students showed up at the State Bar Board of Governors’ November meeting to protest the data’s release.
Last month, though, Sander, former State Bar Gov. Joe Hicks and the San Rafael-based California First Amendment Coalition asked the state Supreme Court to direct the State Bar to hand over the records with redactions to protect test takers’ privacy.
The case is Sander v. State Bar of California, S165765.