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Bias in the air

I spoke before the Professional Responsibility section of the Federalist Society program at the National Lawyers Convention over the weekend. Thanks to section head Jack Park for inviting me to participate, to my counterpart on the panel, GWU Law Professor Thomas Morgan (a scholar and a gentleman), panel moderator Justice David Stras of the Minnesota Supreme Court and Federalist Society staffer David Ray.

Our panel also debated New York’s shocking new pro bono requirement. GWU Professor Alan Morrison and the formidable Federalist Society Pro Bono director Margaret A. Little addressed it. Professor Morrison was genial and knowledgeable, but Ms. Little cleaned his clock on the merits.

I was invited to talk about Minnesota’s elimination-of-bias continuing legal education requirement. Here is what I had to say.

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What happens when the courts and the bar undertake politics and public policy in the guise of professional responsibility? Minnesota’s continuing legal education elimination-of-bias requirement offers something of a case study. I think it’s a case study in political correctness and the ideology of “diversity.” I want to take a look at where Minnesota’s requirement came from.

The proximate cause of the elimination-of-bias requirement was the Minnesota Supreme Court Task Force on Racial Bias in the Judicial System. In December 1990 the Minnesota Supreme Court commissioned a 40-member task force of attorneys and judges to analyze whether racial bias infected Minnesota’s courts. The task force was chaired by Rosalie Wahl, Minnesota’s first female Supreme Court justice, and was supported by a professional staff of writers and statisticians.

The task force touted its “diversity,” noting that “people of color comprised a significant percentage of the task force. The task force was also diverse along gender, age and geographic lines.” Like most such groups that tout their “diversity,” the task force achieved a uniformity of thought that would otherwise be amazing in a group so large. Not a single member dissented from its findings.

Based largely on a variety of alleged statistical racial disparities in esoteric corners of the court system, the task force’s 150-page report found that racial bias permeated the Minnesota courts. On its face, the report was an intellectual scandal. It ignored the substantial body of serious criminological literature on the subject it addressed; it also ignored the existence of racial disparities in crime rates that create the kind of disparities on which it predicated many of its findings.

In short, the report was an incredibly shoddy piece of work. It included an appendix of studies purporting to document racial bias in the judicial system. In fact, the statistical studies themselves belied the report’s conclusions. In the Fall 2001 essay on the task force report that I wrote with John Hinderaker, we methodically examined each of the 30 data sets in the appendix. The data suggested to us a judicial system admirably free of bias.

Ten years after the report was issued, one of the key Minnesota Supreme Court justices supporting the work of the task force spoke of the need “to produce solid information the skeptics out there don’t think we have” in an article that appeared in the St. Paul Pioneer Press. Maybe we were on to something.

The 1993 report included a set of recommendations to mitigate the alleged bias in the legal system, and the Supreme Court appointed a committee to implement the report’s findings. One of the ramifications of the task force recommendations was the Court’s adoption effective in mid-1996 of a requirement that Minnesota attorneys receive mandatory elimination-of-bias training as a condition of maintaining their license to practice law.

Many Minnesota attorneys deeply resent the elimination-of-bias requirement. I am one of them. We believe that it is based on utterly false allegations regarding the Minnesota legal system and that it provides for indoctrination in the shibboleths of political correctness. Moreover, it sends a message that the Minnesota judicial system is biased against members of ethnic and racial minorities. The message is false and destructive.

I participated in elimination-of-bias programs called “Bias? What bias?” in 1999 and 2001. As can be inferred from the course title, we challenged the empirical basis of the elimination-of-bias requirement. The programs played to standing-room-only audiences of attorneys seeking to comply with the requirement and skip the usual indoctrination. The Supreme Court’s designated justice supervising implementation of task force recommendations accepted our invitation to speak at the 2001 program in defense of the task force report and the elimination-of-bias requirement, but he and other members of the Court declined our invitation to appear as part of the next program.

After our 2001 program, incidentally, minority bar groups protested the accreditation of our program by the Supreme Court-appointed board that administers the continuing legal education requirement and the elimination-of-bias rule. These groups asked the board to disaccredit our program retroactively. The board went so far as to seek an opinion from the Minnesota Attorney General on whether it had the authority to disaccredit an approved program retroactively; the AG answered in the negative.

Suggesting that the Court is guilty of racial bias, of course, I’m being facetious. I want to make a serious point.

Preparing for my remarks this morning I was unable to get data on the racial disparities in Minnesota’s bar passage rate from the Board of Law Examiners — I was told they don’t keep the data. But racial disparities in bar passage rates are ubiquitous. UCLA Law Professor Richard Sander tells the story in chapters 4 and 5 of Mismatch, the outstanding book he co-wrote with Stuart Taylor, Jr., and Sander does id. a perpetrator. According to Sander, the perpetrator is affirmative action in law school admissions — a thesis I think you are guaranteed never to hear in a Minnesota elimination-of-bias CLE program.

In lieu of retroactive disaccreditation of our course, the board passed a resolution to the effect that it would not approve our course again in the future. Subsequent courses along the same lines have nevertheless been approved by the board. Something is happening here but, like Dylan’s Mr. Jones, we don’t know what it is.

Which brings us to Minneapolis lawyer Elliot Rothenberg. Rothenberg refused to comply with the elimination-of bias requirement and asked the Supreme Court to strike it down as unconstitutional. The board that administers the rule had recommended that Rothenberg’s attorney license be placed on involuntary restricted status because he did not comply with the elimination-of-bias requirement.

Rothenberg stated that he first became offended by the elimination-of-bias rule after attending a seminar that turned into a “diatribe” about the death penalty and subsequently began to research the content of courses offered for elimination-of-bias credits. Rothenberg noted that the elimination-of-bias curriculum dispenses more political propaganda than legal education. In his brief he accurately observed that the accredited courses “promote a political ideology repugnant to many lawyers.” Among the approved elimination-of-bias programs Rothenberg cited were a “rally for credit” for attorney Lynne Stewart, who was under federal indictment for supporting terrorist activities, and at least 20 courses beginning in April 2002 with titles like “Understanding Islam.” Rothenberg contended that the state should not compel citizens to support the dissemination of ideologies they oppose.

The Supreme Court rejected Rothenberg’s constitutional challenge to the elimination-of-bias requirement. In re Petition of Elliot Rothenberg, 676 N.W. 2d 283 (Minn. 2004). It’s an important case setting forth the Court’s own defense of the rule.

In connection with the release of the Racial Bias Task Force Report in 1993, the Supreme Court established an implementation committee. The committee issued numerous progress reports before its final report in 2010, after which it emerged as the racial fairness committee. The search for statistical racial disparities abides. The demand for equal results continues.

Who is biased? In the twenty years it has devoted to the problem and what must by now be millions of dollars it has spent on analysis, the Court and its task forces have yet to id. a judge or prosecutor guilty of biased treatment of parties. This is a serious offense that lacks a perpetrator in the traditional sense.

You may recall Justice Cardozo’s teaching in the Palsgraf case that “Proof of negligence in the air, so to speak, will not do.” In Minnesota we have bias in the air. Whatever it is, it must be eliminated and, like the prisoners in Cool Hand Luke, we all must get our minds right.

It is a bizarre enterprise. The April 2002 progress report noted that the implementation committee has worked with the Board of Law Examiners “to identify the causes of racially disproportionate bar passage rates and to promote solutions.” With the requirement of bar passage for licensure, we have a requirement under the direct control of the Court. We can infer from the report that Minnesota bar passage rates are subject to statistical racial disparities. By the Court’s methodology, the Court itself must be guilty of racial bias. At last we can id. a perpetrator.

According to the 2002 report, we also have a remedy. The Board of Law Examiners “works to ensure that at least 25% of the graders are people of color.” Putting the 25 percent number to one side, think about that. Are minority graders required to understand the answers of minority test takers? Do test takers identify their race so that they can be matched up with the right grader? (I am told they do not.) Should they be? On an exam testing professional competence?

In truth, the elimination-of-bias requirement is farcical. If it’s an offense without a perpetrator, it’s also an incredibly elastic offense. What bias does the Court seek to eliminate? If the elimination-of-bias requirement can be satisfied by courses such as “Understanding Problem Gambling,” as it can, the requirement has become just one more way of making a statement while making the practice of law slightly more unpleasant than it already was or is.

The roots of Minnesota’s elimination-of-bias requirement in the 1993 Supreme Court Racial Bias Task Force Report are rotten. To borrow the term from criminal procedure, it is the fruit of the poisonous tree. Twenty years later a reckoning is long overdue.

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