Diversiphiles Oppose Research On “Diversity”
[NOTE: This post has been updated twice, and I have, belatedly, spelled Eva Paterson’s name correctly]
I have criticized, here, the hypocrisy of the Equal Justice Society and other diversinauts who oppose research and analysis on affirmative action (unless they or their hand-picked analysts are doing the research). Now they’re at it again. (HatTip to Thomas Woods’ anti-discrimination listserv.)
The Equal Justice Society has invited law school graduates of UCLA and Berkeley, law school graduates from any other law school, and any non-lawyer “concerned individuals” to sign letters to the California State Bar opposing UCLA law professor Richard Sander’s request for the information in its archives on minority bar exam takers, even though Prof. Sander and his other eminent researchers have pledged not to release any personal identifying information. (The email solicitation is the same as this background information on the Equal Justice Society web site.) The Bar refused his initial request, even though it has released similar information to other researchers, and has scheduled a meeting to review its decision.
In an invitation urging recipients to sign one of the anti-disclosure letters, Eva Paterson and Anthony Solana of the Equal Justice Society base their opposition to the release of the data on what they claim are “serious privacy concerns.”
Even though Sander promises not to disclose the identities of the test takers and the names of the schools, these protections are inadequate. Describing the schools by type rather than by name does not prevent people from figuring out which school is being discussed.....This apparently principled belief that research into state programs that may have dramatically negative effect on minority students should give way to individual rights of privacy might be impressive ... if it weren’t so hypocritical. As I pointed out in this post, also linked above, Eva Paterson of the Equal Justice Society was one of the leaders of the opposition to California’s Prop. 54, which if passed would have barred the state from collecting data. Paterson cheered when Prop. 54 was defeated, as in this press release:Your voice in this matter is crucial. The Bar needs to know if you view this disclosure as a violation of your basic rights to privacy as well as its explicit commitment not to disclose the information to others for general research. While academic freedom and access to information is important for research, this should not come at the price of sacrificing rights of privacy.
“Connerly’s Proposition 54 was about burying information about race that could be used to track racial profiling, challenge discrimination in housing, target effective programs to keep kids in school, and — most importantly, perhaps — provide vital health research and treatment,” said Paterson, who debated Connerly numerous times during the campaign, including on National Public Radio.Now it is Paterson who is all in favor of burying information that could reveal vital information revealing policies that have a dramatically negative impact on minority students.
ADDENDUM
For a more thorough analysis of the flaws in the bar association’s reasoning (or lack of reasoning) in denying Prof. Sander’s request, see this fascinating document on his web site. It cites two other examples of the bar association releasing the sort of data Sander seeks without any hearing process at all, and it identifies the other distinguished researchers who have filed the request with him, most whom actually support affirmative action. Until reading this document I had not realized that Sander’s team
was willing to do the study in either of two ways: the bar could simply release the data (with individual identifiers removed, of course), or it could maintain it in-house and simply run the analyses specified by the research team.So much for “privacy” explaining the failure to comply with the request.
ADDENDUM II [9 Nov.]
Some interesting comments on this post have been posted below. I appreciate the tone and substance of all (or most) of them, and have decided to respond here, above the fold so to speak.
First, I appreciate the concern with privacy, but, perhaps because I am just dense or don’t understand the intricacies of privacy law, I still have a hard time understanding just how or why “informed consent” is necessary when no “private information” will be released. Thus Mr. Flores should rest assured that even if the data is released no one would know whether or not he passed the bar exam. Same point eliminates Chauncey’s argument that this issue is different from Prop. 54 because, he claims, “whether a black law graduate passed perhaps the biggest exam of his life” makes it different. The problem with this argument is that no one would know who “that black law graduate” is or whether or not he or she passed.
Indeed, if you read the document that I cited in my ADDENDUM (the one CallieB didn’t find very interesting) you will see that the Sander group was willing for the bar association itself to carry out the research, thus releasing no information whatsoever. That document also refers to other examples of the bar association releasing the data in question to other third parties for research without so much as raising a peep.
I am also not persuaded by Chauncey’s other attempts to distinguish this issue from the issues in Prop. 54. First, for whatever it may be worth, the Calif. Bar Association has been granted extensive power by the state, making its lawyer-certifying activities at least a quasi-public function. More importantly, since no personally identifiable information is involved, the data at issue does not have to be identical for the Equal Justice Society’s objections here to be hypocritical, given the position it took on the subordination of privacy concerns to the importance of racial data for research in the debate over Prop. 54. Indeed, I would go even further: even if the Equal Justice Society’s view of the privacy right here is correct, i.e., even if the specific nature of the release test-takers signed should be held to prevent the release of any non-personal, demographic data about them collectively, the EJS’s position here would still be hypocritical. Its only interest is in barring the release of any data that might undermine racial preferences and securing the collection and release of data when it serves the interest of promoting racial preferences. Where were its objections when the bar association released versions of this data on the other occasions? Where were its objections when its own researcher at the time, William Kidder, secured and used similar data that contained even more identifying information?
In fact, since we’re on hypocrisy, let me say one more thing about Kidder’s use of that data, discussed in my earlier post. One of the points Ms. Paterson of the Equal Justice Society made in her email soliciting signatures and in the background information she provided on the EJS web site is that “[d]escribing the schools by type rather than by name does not prevent people from figuring out which school is being discussed.” Really? Go back and look at Kidder’s use of data from Boalt Hall, linked above, and you’ll see that he was quite proud of the fact that “we had the identities of the school available to us.” Did those applicants to Boalt Hall sign some sort of informed consent that distinguishes Kidder’s research from the research Sander et. al. propose? Does anyone really believe that Paterson and the Equal Justice Society would oppose the release of the bar data if they believed the data would support their preference for racial preferences?
This leads me to K.D.’s eloquent discussion of the “potential harm to professional reputation.” He repeats the privacy concern, although I wonder whether his concern with protecting “my demographic information” was equally strong when he took the SAT, applied to college, took the LSAT, and applied to law schools. I believe all of those institutions release all sorts of composite racial data.
Beyond privacy, however, I found K.D.’s resistance, even resentment, at being judged as simply a fungible cog in his racial group and not on his individual ability to be truly moving. I completely agree with his resistance to “a sweeping generalization that links my professional reputation to my race, not my ability, and further links my professional reputation to the actions or omissions of others that are completely outside the realm of my control.” That, however, is only one of the many prices paid for whatever benefit racial preference provides.
Indeed, I think K.D.’s comment is a compelling argument against the collection and use of any racial data. Unlike K.D., however, I believe his eloquently stated concern is an argument against the practice of racial preference, not against releasing data necessary to analyzing how well the practice works or doesn’t work. It simply makes no sense to continue the practice of racial preference while blocking access to data that would allow researchers to determine whether or not that practice results in more burdens than benefits for it beneficiaries.
Finally, I believe CallieB completely misunderstands what Sander’s research is all about, a conclusion bolstered by her clumsy attempt to distinguish Sander from “actual social scientists.” If a Ph.D. in economics from Northwestern and a law degree from Harvard are insufficient to establish Sander’s credentials as an “actual social scientist,” it will be a long time before anyone with credentials impressive enough to satisfy CallieB will come calling on the California Bar Association for access to its data. But then, that is probably her intent.
ADDENDUM III (12 November)
Bill Henderson has an impressive, more in sorrow than in anger post about the California Bar Association’s shameful refusal to allow its data to be used in research on the effects of racial preference in law school admissions.
Henderson, you may recall, is a member of the team of researchers who, with UCLA law prof Richard Sander, had requested that that data be made available (not for release but to the Bar Association’s own researcher) for that research. It may be worth noting that he describes himself as
a lifelong Democrat and ardent supporter of racial diversity, I don't need to apologize for raising these issues. As [I] said in my prepared remarks, it does not follow that evidence of a mismatch effect requires the dismantling of racial preferences -- indeed, in my opinion, this would be a very bad idea.With regard to concerns over privacy, Henderson writes:
Acceding to these concerns has, in my opinion, three major flaws: (a) 0ur research team would only have access to regression tables with results aggregated among groups of schools, so no individually identifiable information would ever be released to researchers or the public; (b) we would, at all times, be subject to university IRB [Institutional Review Board] protocols; and (c) the broad construction given to consent in this context suggests that much of the research sponsored by the California Bar over the last 20 years has been unlawful; moreover, this decision casts doubt on the scope of any future research by the California Bar.Read, as they say, the whole thing. I also encourage you to read the comments, some of which are frank to admit their preference for “discretion” over “truth” in dealing with Sander’s mismatch theory. In addition, all of the documents related to the Sander et. al. research project can be found here.
Say What?
Your view of the action is incorrect. We are not against research on diversity. We are against releasing private information without consent. More information www.sharejd.blogspot.com
Posted by: NaShaun Neal | November 8, 2007 3:24 PM
interesting stuff. i don't think i'd call her "hypocritical" though. prop 54 would've barred the state from gathering racial information. sander too seeks racial info; however, he isn't a state actor. sander's incentives and motivations aren't the same as the state's. yet is this a distinction without a difference? maybe, but there are other distinctions as well, notably: the info sought by sander (minority bar exam info, including, presumably, whether the minority applicant passed) differs significantly from the info sought by the state (the racial breakdown of applicants for government projects and state schools). information pertaining to whether a black law graduate passed perhaps the biggest exam of his life is deserving of a bit more privacy protection than, say, info pertaining to whether he applied to UCSD. again, at the end of the day this might be an irrelevant distinction but it's worth noting and, in my opinion anyway, kinda shows that patterson's position isn't all that hypocritical.
Posted by: Chauncey![[TypeKey Profile Page]](http://www.discriminations.us/nav-commenters.gif)
|
November 8, 2007 3:45 PM
I agree with Chauncey. The thing that I don't agree with about this post is that it really doesn't include all the information for people to make their own decisons (like the prop 54 stuff Chauncey pointed out, plus a huge chunk of the letter that explains the legal privacy issues).
It is really important to include the crux of EJS's position, which is that it's not cool to give a third party people's private information when they signed releases that specifically said information would only be used for exam purposes or to give the score's to the individual's law school. Sander is trying to get people's LSAT scores and GPA from the Board of Law Examiners. It would be huge to give the info to him without prior informed consent of the students. This information doesn't even belong to the Board. I see no relation to that and prop 54 at all.
Posted by: B | November 8, 2007 4:21 PM
Isn't the issue consent? I read a number of online postings elsewhere, and a big part of the reason the Bar said no was because people had not consented to the release not only of their scores but of other information, like their law school GPA, that their schools released to the Bar. This info was only supposed to be used for internal purposes to verify the validity of the Bar exam. Where is the analysis on consent?
Posted by: DR | November 8, 2007 4:57 PM
My Bar Examination results are none of your damned business. My test results are private and I do not appreciate your interest in analyzing how I performed. I passed. That is all there is to know. That was all the Bar needed to award my license. I worked hard enough and I have no interest in having my private information disclosed to you regardless of your cause or research interests. Please let me be.
Posted by: ALDO FLORES | November 8, 2007 5:11 PM
I graduated from Boalt law school, am African American, and have taken the CA bar exam. The issues here are ones of privacy and potential harm to professional reputation.
When I sat for the bar exam and filled out my demographic information, I did so ONLY because the request stated that such information would be used by the CA Board of Examiners solely to determine the validity of the exam. I was neither informed, nor asked whether I would consent to the release of my demographic information to 3rd parties for "research" of any kind. Since entering the legal profession and as an alum of both UCLA and Boalt Hall, I've realized several things: 1) information, especially that potentially detrimental to your career (whether true/applicable or not), spreads like wild fire regardless of race; 2) the African American community at leading institutions and in the legal community is extremely small, and African Americans are often "tainted by association" when generalizations are made about our race (once again, whether true/applicable or not); and 3) my career in the legal community depends greatly, if not wholly, on my professional reputation, and that reputation is often linked by my colleagues to my race. The following statement is an example meant to highlight #3:
"It's great to have African Americans from Boalt because we know African Americans from Boalt perform well at large law firms."
I believe this statement, made by a partner at a large firm, was meant as a compliment. My problem, however, is this: this partner's confidence in me was based solely on his opinion that African Americans from Boalt perform well, not my ability as an attorney. This statement troubles me because it is a sweeping generalization that links my professional reputation to my race, not my ability, and further links my professional reputation to the actions or omissions of others that are completely outside the realm of my control. Additionally, this generalization is a false one; not all African Americans from Boalt perform well at large law firms, neither do our Caucasian counterparts, so my race should have nothing to do with this partner's confidence in me. The trouble is, it did, and my professional reputation was enhanced by this partner's belief in a statement unsupported by fact. (I find it necessary and, to me, obvious to point out that people do not perform well at large firms for various reasons, most of them having nothing to do with ability or intelligence. Many of my colleagues simply do not like the environment at a large law firm. This is true of all races I have come in contact with). The flipside of this should be clear, if the partner had a negative opinion of African Americans from Boalt, I would have been subject to all the implications of it whether the generalization applied to me or not. That is my concern with releasing demographic information about a small community within the legal profession. It is human nature to make your own conclusions and to have those conclusions affect your day-to-day interactions. Trouble is, your conclusions may or may not be accurate, and may or may not apply to me. This is a chance I am not willing to take with my professional reputation.
To conclude, as an interested party (I am in the group of African Americans Sander wishes to study), the issue with this linkage between race and professional reputation is at the heart of my opposition to the release of demographic information for Sander's research. In my experience, I have been subject to both positive and negative opinions about African Americans from Boalt, and to date, none of them pertain to me as an individual; they all focus on me as an African American. I want my position and reputation in the legal community to be based solely on my ability as an attorney. I feel the release of demographic information could be counterproductive to my wants pertaining to my professional reputation, and as such, I oppose the release of such information.
Posted by: K.D. | November 8, 2007 5:47 PM
I read the document referenced above, and I didn't find it nearly as fascinating as the National Law Review article by Cheryl Harris and Walter Allen that delineated the differences between Mr. Sander's proposed study and other legitimate research proposals by actual social scientists.
Mr. Sander has been turned down for funding numerous times by the National Science Foundation, precisely because his proposed study fails to meet the basic criteria required of any real scientific experiment. I was particularly intrigued by Mr. Sander's and his supporters' contention that a survey of Bar Exam results would yield insight as to "how well [the subject] had learned the law." It is widely known that law schools specifically do not "teach to the exam," and that as a pass/fail examination it can in no way indicate how well a student has learned the law. If it did, then it would logically follow that ALL lawyers passing the Bar should have their results made public -- so that the public as consumers could more accurately ascertain which lawyers were "better trained." The implications for law schools should be obvious.
It does not seem to me that the opposition to Mr. Sander's study is arising from any hypocritical standpoint. He posits a conclusion and then proceeds to demand access to protected data in order to bolster that conclusion. That kind of research methodology simply does not rise to the standard of legitimate scholarship. And the Bar has NOT made that same data available to other researchers, just as the previous poster observed, they are legally obligated to abide by the privacy rights agreed to when the test was administered.
In short, Sander's theory amounts to "Blacks are not smart enough to compete in elite law schools, and I can prove it with this data." This could hardly be described as an unbiased hypothesis. The bottom line is, the Bar Exam was never intended to be a measure of what anyone learned in law school. To define it as such, for only a limited and narrowly specified group of people, fits the classic definition of discrimination. And I don't think that was anyone's intent.
Posted by: CallieB![[TypeKey Profile Page]](http://www.discriminations.us/nav-commenters.gif)
|
November 9, 2007 1:55 AM
When someone refuses to ask a question, it is obvious that that they really do not want to know the answer and especially do not want other to know the answer.
It is obvious from the postings that many blacks are being admitted with GPA and tests scores that would immediately eliminate a white applicant. That those black and Hispanic quota admits are failing at a higher rate and failing to pass the bar at a higher rate than whites.
And in the end, the law schools and lawyers do not want the world to know that they have separate and unequal standards for whites and blacks and those unequal standards exist for social engineering purposes.
Posted by: superdestroyer![[TypeKey Profile Page]](http://www.discriminations.us/nav-commenters.gif)
|
November 9, 2007 1:06 PM
CallieB cites the National Law Journal article Look Before You Leap by
Cheryl Harris & Walter Allen.
It is an utterly unimpressive critique full of sophomoric arguments. They claim Sanders "does not pose a hypothesis and determine whether the evidence supports it, as social scientists do. Instead, he asserts conclusions and then scours for evidence to support his argument, as lawyers do."
Hypotheses and conclusions are distinctions without a difference. Is a conclusion supposed to possess more of an emotional investment than a hypothesis? How can Sanders be accused of "scouring for evidence to support his argument" if no one will give him an initial set of data? Have his critics read his mind and concluded that Sanders will be jumping from state bar association to state bar association until he finds data to support his thesis?
The article claims that since the bar exam is pass/fail, students have no incentive to maximize their bar score. That is an obtuse statement for anyone who has ever taken a bar exam, especially the tough California bar exam. Nobody pulls back their effort for the day-long exam on the delusion that they have scored enough to pass.
The authors finish their grasping at straws by trotting out the gold standard of underachievement excuses --"stereotype threat" as a possible reason for underwhelming black test scores from grade school through bar exams.
Why are these people so afraid of releasing data that might confirm or contradict Sanders' thesis? Is it because knowing the truth is secondary to keeping the diversity scam going at all costs?
Posted by: eddy | November 9, 2007 2:57 PM
If Sanders is correct that admitting minorities to more premier institutions hurts them academicly, why not turn this into a financial bonus for minorities.
Since it is an unassailable proposition that racial diversity is essential to law schools, perhaps generous stipends could be granted, over and above free tuition. The more an admitted student fails to meet the average admittance standard, the greater the stipend. In this way, fully qualified blacks wouldn't receive any stipend, whereas woefully underqualified blacks would receive tens of thousands of dollars to compensate for being in over their heads, yet providing that essential diversity.
If the underqualified are being drafted as an educational tool, and consequently suffer a poorer education, they should be compensated.
Diversity shouldn't be free.
Posted by: eddy | November 9, 2007 3:52 PM