In 1993 the Minnesota Supreme Court Task Force on Racial Bias in the Judicial System issued its report. 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.
The report was, in short, an incredibly shoddy piece of work. Rocket Man and I wrote about the report at length in an article for American Experiment Quarterly that is available in PDF: “Is Minnesota’s judicial system really guilty of racism?”
The report included an appendix of statistical studies purporting to document racial bias in the judicial system. In fact, the statistical studies themselves belied the report’s conclusions. Earlier this month, ten years after the report was issued, Minnesota Supreme Court Justice Paul Anderson — a key player in supporting the work of the task force — spoke of the need “to produce solid information the skeptics out there don’t think we have.” (The St. Paul Pioneer Press story reporting Justice Anderson’s comment is “Court officials pledge vigilance on race bias.”)
The 1993 report included a set of recommendations to ameliorate 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.
My professional colleague and faithful Power Line reader Peter Swanson was one of two Minnesota attorneys who appeared at the Supreme Court hearing on the proposed requirement to oppose its adoption; our boss was the other. I believe that Peter knows more about the elimination-of-bias requirement and its application than anyone else in the state. He is a man of extraordinary persistence, courage, and insight.
Many Minnesota attorneys deeply resent the elimination-of-bias requirement. 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.
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. (Justice Anderson accepted our invitation to speak at the 2001 program in defense of the task force report and the elimination-of-bias requirement, but every member of the Court has declined our subsequent invitation to appear as part of our next program.)
After our 2001 program, 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. Katherine Kersten wrote an excellent column on the flap for the Minneapolis Star Tribune while the matter was pending before the board: “Court-ordered ‘elimination of bias’ seminars threaten freedom of thought.”
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. We have nevertheless again submitted our program for approval and the board has approved it. 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 has refused to comply with the elimination-of bias requirement and has asked the Supreme Court to strike it down as unconstitutional. The board that administers the rule has recommended that Rothenberg’s attorney license be placed on involuntary restricted status because he did not comply with the elimination-of-bias requirement.
Rothenberg has petitioned the Minnesota Supreme Court to review the matter and the Court has agreed to hear the case. Rothenberg has 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 notes that the elimination-of-bias curriculum dispenses more political propaganda than legal education. In his brief he accurately states that the accredited courses “promote a political ideology repugnant to many lawyers.”
Among the approved elimination-of-bias programs Rothenberg cites are a “rally for credit” for attorney Lynne Stewart who is under federal indictment for supporting terrorist activities and at least 20 courses beginning in April 2002 with titles like “Understanding Islam.” Rothenberg contends that the state should not compel citizens to support the dissemination of ideologies they oppose.
The estimable Mr. Swanson has filed an amicus brief and 84-page appendix supporting Rothenberg. The brief is a remarkable piece of work. He has also set up a Web site through which his brief and appendix can be accessed; click here for the link to Peter’s site.
Minnesota Lawyer took note of the proceedings in a story that requires a subscription for access. Walter Olson took note of the proceedings on his Overlawyered site. Click here to access Olson’s post on the proceedings. We will provide updates on developments as events warrant.
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