Friday, September 4, 2020
Robert Steinbuch (Arkansas-Little Rock) & Richard J. Peltz-Steele (UMass), Ongoing Challenges in Researching Affirmative Action in Legal Education: Maximizing Public Welfare Through Transparency, 26 Tex. Hisp. J.L. & Pol'y 57 (2020):
The public good often depends on social science research that employs personal data. Volumes of scientific breakthroughs based on data accumulated through access to public information demonstrate the importance and feasibility of enabling research in the public interest while still respecting data privacy. For decades, reliable and routine technical methods have ensured protection for personal privacy by de-identifying personal data. Social science research into legal education and admission to the bar is presently a matter of urgent public interest and importance, requiring solid empirical analysis of anonymized personal data that government authorities possess. Social science research into the effects of affirmative action represents standard, indeed commonplace, research practice furthering the public interest, while employing established methods that minimize the risk to privacy. Yet, when seeking information regarding admissions standards and success metrics, researchers have faced remarkable headwinds from government officials. In this article, we continue to discuss a topic that we have devoted significant professional energy: the proper balance of privacy, transparency, and accountability in researching legal education.
Like research in education, social science inquiry into the process of admission to the bar can provide attorneys, educators, students, researchers, policymakers, and the general public with reliable information about a vital public service. Researchers have devised and employed standard methodologies of de-identification to ensure that data can be analyzed to further the public interest while minimizing (but never entirely eliminating) the risk of harm to data subjects. Standards of science and law do not require that the risk of re-identification be reduced to zero, but that de-identification reasonably safeguard against invasion of privacy. Ample experience with privacy regimes such as the federal policy on educational records demonstrates that the public interest in access can be, and for some time already has been, exonerated while privacy interests are respected.
Social scientists are experts and overwhelmingly successful at devising and implementing strategies to ensure that people and their privacy remain respected in the conduct of research. Social science research employing established technical methods must be brought to bear to understand how best to license and equip lawyers to serve the public, especially to meet the overwhelming public need for legal services. The law privileges research in recognition of its role in furthering public interest, and best practices in the social sciences have been developed and tested over time to balance the complementary demands of access and privacy. Standard, well-established methods of de-identification ensure that data can be analyzed to further the public interest while minimizing the risk of harm to data subjects. Through these methods, the public interest in research can be exonerated while also respecting the personal privacy of individuals. Legislators and courts should remain sufficiently open-minded and amenable to arguments that access and privacy are not mutually exclusive extremes, and social science methods can align them in complementary orbit. In other words, sometimes we can have our cake and eat it too.