Scholastica Update From Berkeley – California Law Review Says Its Not Subject To Public Records Act

March 19th, 2013

Josh Thompson writes with an update of the Pacific Legal Foundation about the University of California Law Review’s decision to use race and other demographic factors in selecting articles. Josh sent public information requests to UC Berkeley and UC Davis.

First, Josh rightly praises UC Davis. As I wrote in an earlier post, Davis selected the demographics feature from Scholastica without realizing that it automatically tags articles based on an author’s race and gender. Once they realized this (after my email), they abandoned this feature. Kudos to UC Davis:

UC Davis first asked for an extension of time to search for all records that would be responsive to PLF’s request.  When it ultimately complied with our request last Friday, the disclosed records painted a very clear picture:  At some point early this year, the UC Davis Law Reviewtried a new article submission engine called Scholastica.  In order to set up its Scholastica account, the law review had to check a lot of boxes and complete a number of formalities.  One of the boxes it checked asked whether it would like to know the race and sex of authors who were submitting articles.  Shortly thereafter, Professor Blackman noticed and blew the story up.  Emails to and from Professor Blackman — which were disclosed in the school’s response to our request – reveal that the law review first thought it may be able to aggregate racial statistics without knowing the race of individual authors.  When it learned that every manuscript would be tagged with a race and sex identifier, however, the law review immediately unchecked the box.  Only then did it open up for submissions.

Let’s take a moment to give credit where credit is due.  The UC Davis Law Review was trying a new submission engine, and foolishly checked a box that asked authors to identify their race and sex when submitting articles.  When this came to its attention, the law review stopped the practice.  The school, students, and administration should be commended for their diligence, and their commitment to equality under the law.

Berkeley Law is a different story. Josh writes that because the journal claims their incorporated status exempts them from the Public Records Act request.

In response to our specific request, Berkeley provided no documents.  It found a loophole.  It seems that nearly a hundred years ago, the California Law Review was incorporated independently from the law school. Thus, the law school stated it could provide no documents that were responsive to PLF’s request.  Because our requests asked for UC Berkeley’s decision to solicit race and sex information, and because the California Law Review was independent from the law school, the law school — according to its response — had no documents detailing its decision.

So they are hiding behind FOIA (the California equivalent). Josh is not persuaded:

Even if the California Law Review is an independent corporation that is not subject to thePublic Records Act, that does not necessarily mean it can refuse to follow Proposition 209 or the Equal Protection Clause.  It is run by Berkeley law students and professors.  It is housed in Boalt Hall.  It uses campus space, telephones, and email.  Ultimately, this would be a state action question – whether the California Law Review is a state actor for purposes of the Equal Protection Clause and/or Proposition 209.  But even if it is not — which seems unlikely — it would be still be subject to the Civil Rights laws, the Unruh Act, and other state and federal prohibitions against race and sex discrimination.

PLF sent a new Public Record Acts request that is more precise (PDF). I’ll keep you posted

My previous posts on this topic are herehereherehere, and here.