A deep secret revisited

TaxProf Paul Caron excerpts the Wall Street Journal Law Blog’s post on Professor Richard Sander’s attempts to get the California state bar to cough up bar passage data by race. For some reason the powers that be have escaped scrutiny over the racial disparities that dog bar passage rates. Professor Sander’s long legal fight for the data is headed for trial. The authorities guard the relevant data more carefully than we protect the gold at Fort Knox. I want to retell the story I have explored previously here from a local Minnesota angle.

In Minnesota we caught the wave of the assault on law enforcement in the name of racial disparities courtesy of the Minnesota Supreme Court. The Minnesota chapter of the American Civil Liberties Union and other organizations have since piled on, but the Minnesota Supreme Court was on the case early and its imprimatur has given the local movement destructive legitimacy.

In the early 1990s the Court appointed a 40-member committee of attorneys and judges to put their names on a report finding racial bias permeating the criminal justice system. The committee devoted “two years of research and study” to the issues. With the help of the Court’s staff, the committee performed as expected and released the Court’s Task Force Report on Racial Bias In the Judicial System in 1993. The report was a joke, but it produced page-one stories based on handy summaries that saved reporters from the trouble of having to read the damn thing.

In connection with the release of the Task Force Report in 1993, the Minnesota Supreme Court established an Implementation Committee on Multicultural Diversity and Racial Fairness in the Courts, also known as the Racial Fairness Committee. The committee issued numerous progress reports before its Final Progress Report in December 2010, after which it emerged as the Committee For Equality and Justice.

The search for statistical racial disparities abides. The demand for equal results continues.

Who is biased? In the more than 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.

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 reflect 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 was told they do not.) Should they be? On an exam testing professional competence?

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

Inspired by Professor Saner, I looked into these issues in the fall of 2013. 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. Professor Sander tells the story in chapters 4 and 5 of Mismatch: How Affirmative Action Hurts Students It’s Intended to Help, and Why Universities Won’t Admit It, the brilliant book he co-wrote with Stuart Taylor, Jr.

Sander does id. a perpetrator in the book. According to Sander, the perpetrator is affirmative action in law school admissions — a thesis you are guaranteed never to see floated under official auspices in Minnesota or elsewhere.