Bias CLE 599 to 1
Friday, March 26, 2004
ROTHENBERG CASE -- POINT BY POINT -- CONTINUED
The Court says:
(page 19) In making this determination, we are mindful of the fact that Rothenberg is a long-time member of the Minnesota bar in good standing and has made good faith arguments in challenging the constitutionality of the elimination of bias requirement. We are also mindful that the Rules of the Minnesota Board of Continuing Legal Education do not provide a method for a lawyer with concerns about the content of continuing legal education courses to challenge these courses and that failing to comply with the requirements and requesting a hearing before the Board was, in this case, a way for Rothenberg to express his concerns.
(footnote 6) The precise number of other courses presented is unclear. Between July 1, 1999 and June 30, 2002, at least 700 courses were presented for at least one hour of elimination of bias credit in Minnesota. Many of these courses were the same or similar, but the number of different courses, based on the evidence presented to us, was at least 150. These courses appear to encompass a broad range of issues, including “Women in Law Firms,” “Working With Immigrant Clients: Cultural and Language Issues,” “Disability in the Law,” and “Understanding the Special Needs of the Elderly/Disabled,” to name just a few.
My amicus brief says:
It is difficult to determine the full range of opinions that are eligible for credit under the Bias CLE Rule. The CLE Board will not give advisory opinions. The only way to determine the eligibility of a particular seminar is to invest the resources in planning, preparing and publicizing the actual seminar. None of the administrative preparation of the seminar would count toward the minimum 45 hour CLE requirement. CLE Rule 7(A). A CLE provider in possession of the videotape and written materials for an approved course by another provider still does not have adequate information to determine the viewpoints that are permitted. The compliance affidavit requires a narrative explaining how the proposed course meets the "learning goals." CLE Rules, Appendix I. These completed affidavits are not generally available to the public, and the CLE Board does not retain them. See App. at A-79. The MSBA CLE division has complained about changing standards for Bias CLE approval. App. at 84. Two otherwise identical courses could receive different accreditation decisions based on different compliance affidavits. Even if it is possible to determine the eligibility for one course, there are still questions about other courses representing other ideologies. Determining the meaning of the rule is like the old television game show, Concentration. In Concentration, correct answers to questions removed small squares revealing a larger puzzle underneath. Even with a specific answer to whether a specific course is eligible for Bias CLE credit, it is not possible to solve the overall puzzle about the meaning of the rule. Respondent presents a lengthy list of accredited course titles in support of its contention that there are significant numbers of non-ideological Bias CLE offerings. Board Counsel Exhibit I. Appellant correctly points out that the titles alone often give little indication of the ideological content. Brief of Appellant at 11. If Respondent contends that the rule is clearly defined, and that course titles are sufficient to ascertain content, then a brief course description should be sufficient to determine potential accreditation. The CLE Board has been given various brief descriptions of courses and asked whether they would qualify for Bias CLE credit. App. at A-67, A-75, A-82. To date, the CLE Board has not answered the questions..If Respondent is unable to give a specific credit determination on the examples provided, then Respondent should advise how a CLE provider would go about fashioning such a course in order earn Bias CLE credit.
LOOK OUT BELOW!
Check out my posts below for responses to seven points made in the Elliot Rothenberg case. The name of this weblog is based on the false assertion that there are 600 different ideological choices to satisfy the Elimination of Bias CLE rule. Some court documents and other links are at biasbattle.com. My contact information is there, as well.
Watch this space over the weekend for further updates.
POINT BY POINT RESPONSE TO ROTHENBERG CASE (part 7)
The Court says:
(footnote 10) To support his assertion at the hearing before the Board, Rothenberg cited to an article by Richard Posner entitled An Army of the Willing, The New Republic, May 19, 2003, at 27; and an article by Jonathan Kay entitled Crime by the Numbers, Commentary, April 2003, at 73. Neither of these articles discusses the Race Bias Task Force Report nor provides any basis for the assertion that the elimination of bias requirement is ideologically-based, much less unconstitutional. In his brief to this court, Rothenberg cites to a newspaper article that discusses generally the Race Bias Task Force Report. Dave Peterson and Paul Gustafson, Accuracy or Advocacy? Bias Report Challenged, Minneapolis Star Trib., June 27, 1993, at 1B.
My amicus brief says:
There are further indications of an intent to promote a specific ideology in the task force reports that formed the basis of the rule. For example, the Hennepin County Glass Ceiling Task Force Report (“Glass Ceiling Report”) was cited by the MSBA in its petition to require Bias CLE. Petition of Minnesota State Bar Association at 2, In Re Amendment of Rules for Continuing Legal Education of Members of the Bar (1994) (C2-84-2163). The Glass Ceiling Report accuses employers of being in “denial” if they disagree with the premise that there is a “glass ceiling” preventing advancement by women and minorities in legal jobs. HENNEPIN COUNTY BAR ASSOCIATION GLASS CEILING TASK FORCE REPORT, April 20, 1993, at 10. The Final Report of the Minnesota Supreme Court Task Force on Racial Bias in the Judicial System ("Racial Bias Report"), one of two reports cited by the Bias CLE Rule, contains ideological elements. The Racial Bias Report states that one impediment to justice stems from “well intentioned, if naïve, efforts to demonstrate that the system is.‘color blind.’” RACIAL BIAS REPORT at S-2. Appellant also notes that the Report takes a controversial position on interracial adoption and foster care placements. Brief of Appellant at 5. Subsequent federal legislation on this topic calls into question whether certain sections of the Report are consistent with current law. See Multiethnic Placement Act, Pub. L. No. 101-382, Section 551 (1994).
The 1989 Final Report of the Minnesota Supreme Court Task Force for Gender Fairness in the Courts ("Gender Fairness Report") is the other report cited by the Bias CLE Rule and is also subject to claims of being ideological. Attorneys and lay witnesses who testified at the task force hearings have complained that the Gender Fairness Report did not reflect their testimony that the Minnesota legal system is not prejudiced against women. See Letters, Gender Bias May Lie Within the Task Force, NATIONAL LAW JOURNAL, March 4, 1991 at 14.
POINT BY POINT RESPONSE IN ROTHENBERG CASE (Part 6)
The Court says:
(page 13) Rothenberg’s other arguments, that the elimination of bias requirement was designed on an ideological basis or that the Board has approved courses on an ideological basis, also lack any support. Rothenberg has presented no evidence that the elimination of bias requirement was designed on an ideological basis or that the Board has approved courses on an ideological basis.
My amicus brief says:
Two days after September 11, 2001, the CLE Board heard complaints about a previously-held Bias CLE seminar entitled “Bias in the Legal Profession: What Bias?” App. at A-80. The sponsors of the seminar were not invited to nor informed of the meeting. Id. at A-16. In response to the complaints, the CLE Board sought a legal opinion on whether it could revoke Bias CLE credits and passed a resolution aimed at preventing similar courses in the future. Id. at A-81. Even if Respondent were to rescind the September 13, 2001 resolution, the viewpoint discrimination has limited the ideological choices available during a significant portion of Appellant’s reporting period. Moreover, the rule is unconstitutionally vague and grants unfettered discretion to the CLE Board.
My amicus brief appendix says (quoting others):
“We had planned to offer the elimination of bias seminar entitled “Bias in the Legal Profession: What Bias?” in June of 2003. However, delays in its approval led us to opt for an alternative elimination of bias seminar…We thought that this alternative seminar would more readily gain CLE board approval. This wasn’t the first time we experienced board delays in approval of the nearly identical course. On a previous occasion, we had significant enough delays that we had to reschedule the course date.”
“One of the many issues addressed by the Independent Women’s Forum (IWF) is the implementation of Title IX of the Education Amendments of 1972, and its effects on college sports. I have considered and discussed a possible IWF/Federalist event on Title IX that would be accredited for Elimination of Bias CLE. The rules of the Board of CLE as written and as applied make such an Elimination of Bias seminar impractical. There is no way to determine what ideology is permissible without expending nearly all the resources of presenting a course. It is my impression that The Federalist Society’s Elimination of Bias programs are subject to a unique scrutiny. This unique treatment makes the timing and planning of such a course on Title IX, and other controversial issues, impractical.”
“It is my understanding that even the well-attended, in-state course “What Bias?” seminar faces and continues to face opposition as an approved Bias CLE course. I have reviewed CLE Board meeting minutes which recommend rescinding credit for the course to asking that the course not be approved in the future. The requirements for approval of courses meeting the “elimination of bias” criteria are vague.”
POINT BY POINT RESPONSE IN ROTHENBERG CASE (Part 5)
The Court says:
(page 12) In contrast, the elimination of bias requirement does not force Minnesota lawyers to say “I believe in X” or manifest agreement with anything. It only requires that Minnesota lawyers be passively exposed to certain ideas by attending courses on the elimination of bias in the legal profession and in the practice of law. For this reason, the California Court of Appeals, which appears to be the only other court to have considered a similar issue, held that a California requirement that lawyers attend classes on elimination of bias does not violate the First Amendment.
My amicus brief says:
There is no opportunity for CLE students to avoid the material. In fact, the CLE Board has interpreted CLE Rule 5A(5) to mean that the CLE student "must be focused solely on the learning activity." White, David L. and Corneille, Margaret Fuller, CLE Credit forTeleconference and Webcast Courses, BENCH & BAR, August 2001, at 32. Respondent relies on Greenberg v. State Bar, to trivialize the burden on CLE students attending the courses. 92 Cal. Rptr. 2d 493 (Cal. Ct.. App. 2000). Unlike the instant case, the California Mandatory Continuing Legal Education ("MCLE") Rules challenged in Greenberg allow individual self study to satisfy the Bias CLE requirement. See Cal. MCLE Rule 2.3. The California State Bar also does not have unfettered discretion to approve or disapprove individual courses, as was noted in the initial.proposal to amend the Minnesota CLE Rules. App. at A-43. Finally, the Greenberg court did not defend the Bias CLE courses, which it recognized as being perceived as sometimes “patronizing, condescending and inept." Greenberg, 92 Cal Rptr. at 44. Instead, the court said that it was bound by the California Supreme Court and that Greenberg and the other attorneys would have to seek relief elsewhere.
My notes from oral argument:
• Justice Paul Anderson asked Flynn whether there had been any internal objection to the "rally for credit" for (indicted attorney) Lynne Stewart. Flynn replied that she did not know.
• Flynn responded to a question by Justice Meyer that the Court may feel that the rule needs to be "tweaked."
• In a discussion with Chief Justice Blatz about the "fallout" from controversial courses like the Federalist Society "What Bias?" course and the Lynne Stewart rally, Flynn addressed the rule itself. Flynn questioned whether the Court wanted to "redefine" the rule to direct what course should receive elimination-of-bias credit.
•Flynn minimized the First Amendment burden on Rothenberg by saying he need only be a "passive listener" in the course, per the California Elimination of Bias case, Greenberg v. State Bar. Even if "100%" of the course offerings were objectionable to Rothenberg, it is only a passive activity and Rothenberg does not have to espouse a belief. Justice Paul Anderson immediately and firmly asked Flynn how the concept of "passive listener" is "gounded in the law." Flynn responded that she was relying on Greenberg alone. There was some very brief exploration by the justices of whether the Greenberg court correctly decided the "passive listener" concept.
• Justice Page asked Rothenberg whether, of the courses available, there was any course that "goes to elimination of bias and not these other ideological issues [that he finds objectionable]?" (During the hearing, Rothenberg did mention the fact that under the rule the courses are not permitted to teach substantive law.)
POINT BY POINT RESPONSE IN ROTHENBERG CASE (Part 4)
The Court says:
(page 8) Rothenberg also conceded during oral argument that there are “a vast variety of courses” on the elimination of bias. Nevertheless, Rothenberg argued that the operation of the elimination of bias requirement is unconstitutional because “all the courses have an ideological content” and the presence of any ideological courses or any courses discussing religion is unjustified. Therefore, Rothenberg argues, it would be unconstitutional for our court to punish a lawyer for failing to attend courses on the elimination of bias.
(page 10) Rothenberg has identified courses that he disagrees with based on their titles and descriptive materials, but there are hundreds of courses offered to which he has not voiced any objection and that he could take in order to complete the elimination of bias requirement. Rothenberg conceded in oral argument that there are “a vast variety of courses” on the elimination of bias.
Minnesota Lawyer article (1/12/2004):
Rothenberg did not deny that there was a variety of courses to choose from, but argued that all of the courses are from one end of the ideological spectrum. Pointing to the Federalist Society seminar referenced above, Rothenberg noted that it has been the only explicitly conservative course to receive elimination-of-bias credits and it was “the subject of feverish controversy” before the board.
My notes from oral argument:
• Justice Paul Anderson asked Flynn whether the Federalist Society had a "tougher hill to climb" in getting credit. Flynn responded that the board was not looking at ideology, just whether the course satisfied one of the "learning goals" in the rules. When asked specifically whether it was "internal" or "external" [angry members of the bar] forces that caused the added scrutiny on the Federalist Society offering, Flynn replied that it was "some of both." Flynn said that there were some external objections to the course and that some members of the CLE board members had "echoed that concern."
My amicus brief says:
Two days after September 11, 2001, the CLE Board heard complaints about a previously-held Bias CLE seminar entitled “Bias in the Legal Profession: What Bias?” App. at A-80. The sponsors of the seminar were not invited to nor informed of the meeting. Id. at A-16. In response to the complaints, the CLE Board sought a legal opinion on whether it could revoke Bias CLE credits and passed a resolution aimed at preventing similar courses in the future. Id. at A-81. Even if Respondent were to rescind the September 13, 2001 resolution, the viewpoint discrimination has limited the ideological choices available during a significant portion of Appellant’s reporting period. Moreover, the rule is unconstitutionally vague and grants unfettered discretion to the CLE Board.
POINT BY POINT RESPONSE IN ROTHENBERG CASE (Part 3)
The Court says:
(page 7) At oral argument, Rothenberg conceded that “there is prejudice and bias in society” and among lawyers as well.
My notes from oral argument (available on powerlineblog.com):
• Justice Paul Anderson began the first question to Attorney Rothenberg with, "Based on your experience with prejudice and bias in society..." and went on to ask whether bias also exists in the legal profession. Rothenberg countered that certainly individual attorneys exhibit bias, but it is not systemic.
Minnesota Lawyer Article (1/12/2004):
“Bigotry is evil,” Rothenberg told the justices. “I can say with all sincerity that I don’t think you’ll find anyone more opposed to bigotry, discrimination and bias than the appellant in this case.” Following up on those comments and responding to questioning by Justice Paul Anderson, Rothenberg acknowledged that bias exists in society and in the legal and judicial system, although he questioned how systemic the problem really is in the legal system. “Shouldn’t we as a society work to eliminate those attitudes within the judiciary and work to avoid that type of bias in the system?” Anderson asked. Rothenberg agreed that discriminatory conduct by judges and attorneys is reprehensible, but argued that there are other ways of dealing with the problem.
My amicus brief says:
Those who support the theory of legal system bias with anecdotes use “straw man” argumentation to suggest that their ideological opponents are calling every alleged victim of discrimination a liar. This argumentation distorts the position that bias is not systemic to an easily refutable statement that bias never occurs in the legal system. This is a distortion of the mainstream and possible majority opinion that the legal system is fair as a whole.
POINT BY POINT RESPONSE IN ROTHENBERG CASE (Part 2)
The Court says:
(page 4) To be approved, a course: must be identified on an application and described in a narrative as fulfilling the elimination of bias requirement; must focus on issues in the legal profession and in the practice of law and not on issues of bias in society in general; and must not address the substantive law of illegal discrimination unless the course meets one or more of the learning goals for elimination of bias courses.
My amicus brief says:
The convoluted definition provided by the Special CLE Advisory Committee further contributes to the unconstitutional vagueness of the Bias CLE Rule. On the one hand, courses must be “directly related to the practice of law.” CLE Rule 2I. On the other hand, substantive law courses do not, by themselves, qualify for credit. Id. at 6B. Further, the course may not deal with bias in society generally. Id. The precise
definition of the course exists somewhere between a course directly related to the practice of law and a substantive law course.
POINT BY POINT RESPONSE IN ROTHENBERG CASE
The Court says:
(Page3) On January 30, 1996, the Advisory Committee submitted an Interim Report, which noted concerns and recommendations from members of the bar regarding the elimination of bias requirement. Many bar members recommended that the rules should not only permit the approval of courses addressing issues identified in the Minnesota Supreme Court Task Force Report on Race Bias, but also permit courses addressing other viewpoints on the extent of bias in the legal profession. Members cautioned against drafting rules that would “require attorneys to attend courses contrary to the attorneys’ political or religious beliefs,” and recommended the court adopt a “broad definition of bias, permitting the approval of any course designed to help attorneys become aware of bias in society in general.” In its Final Report, the Advisory Committee recommended rules and definitions for the administration of the elimination of bias requirement as part of the continuing legal education program in Minnesota. We adopted rules for the elimination of bias requirement, which are now contained in the Rules of the Minnesota Board of Continuing Legal Education.
My amicus brief says:
While the MSBA petition was pending, the CLE Board considered questions about course approval standards. One topic of consideration was whether seminars that expressed positions contrary to those of the various bias task forces alleging bias would be eligible for credit. See App. at A-47. The issue of allowing alternative viewpoints was not put to rest at the April 11, 1995 CLE Board meeting and remains a current point of contention.
Indications that Bias CLE is intended to advocate a specific ideology continued after the Court appointed a Special CLE Advisory Committee to determine course approval guidelines. The coordinator of the William Mitchell diversity training program testified before the Special CLE Advisory Committee in 1995. Board Counsel Exhibit F at 5. The committee raised the specific issue of ideological conservatives attempting to undermine the proposed Elimination of Bias courses by presenting their own ideology. Id; See also App. at A-82. To deal with this concern, the Special CLE Advisory Committee determined that CLE providers would have to provide a narrative explaining how their courses met the objectives of the rule. Board Counsel Exhibit F at 5; CLE Rule 6B(2).
*******
The rule is also vague on whether courses from a religious perspective qualify for Bias CLE credit. Courses from a religious perspective would be more than just alleging that a particular religious group is the victim of religious discrimination. There are religious perspectives on the existence and extent of bias, as well as the appropriate remedies for bias. Respondent mentions that the Special CLE Advisory Committee discussed the issue, but fails to provide an answer to the question. Board Counsel Exhibit G at A2. Indeed, a member of the CLE Board has indicated that a courses taught by a “rabbi, minister or priest” would be of questionable validity for Standard CLE. App. at A-33. Because the CLE Board will not provide advisory opinions, it is impossible to tell whether religious viewpoints are given access to the forum, consistent with
constitutional law.
********
If access to the forum of Bias CLE credit is fully open to contrarian views, attorneys will flock to the seminars with which they already agree. See App. at A-24. The Special CLE Advisory Committee was most likely aware of this fact, which explains the almost defiant way the Committee failed to articulate which viewpoints are eligible for Bias CLE credit.
COURT RULING IN ROTHENBERG CASE
Take a look at this. This weblog will make a point-by-point response.
Tuesday, March 16, 2004
LINKS
Don't forget to check out Biasbattle.com. Also, take a look at Powerline, a proud member of the Northern Alliance.
Sunday, March 14, 2004
LOOSE LIPS SINK MEDIATION
Will someone tell me the basis on which this program qualifies for Elimination of Bias? If there are supposedly 600 different ideological choices to satisfy the rule (ha!), how does one know what to expect when the brochures are so vague?
I'VE GOT A (PROFESSIONAL RESPONSIBILITY) SECRET
Here's another post by Ethical Esq. This one is about secrecy of attorney discipline. In the comments section, I make reference to cases in Minnesota. These North Star State cases demonstrate the intolerance of ideological dissent in the state bar, and the trend of treating legal disagreements as ethical violations.
Thursday, March 04, 2004
...CAN'T LIVE WITH 'EM, PASS THE BEER NUTS
Ethical Esq. posted this about alleged discrimination against men in divorce proceedings. Sadly, so-called reverse discrimination such as this is not eligible for Elimination of Bias continuing legal eduation in Minnesota.
YOU SANK MY BIASBATTLE SHIP
There is a new link to the webpage with pdf files of some court documents in the Elliot Rothenberg case. Just go to biasbattle.com for all your downloading needs!
THAT'S FOR ME TO KNOW AND YOU TO FIND OUT
I have asked our friends at the CLE Board what ideologies are eligible for elimination of bias credit. I even gave them a list of examples in 1995 and again in 2001. To date, they have not responded. One of the many reasons for the ideological imbalance (599 liberal, one conservative) is the vagueness of the rule and the refusal to answer simple questions. Anyway, here is the list:
WOULD YOU APPROVE THESE COURSES FOR "ELIMINATION OF BIAS' CREDIT?
You should assume that they meet all of the other requirements of the rules (e.g. directly related to the practice of law)
1. A course on new developments in EEOC cases, with tips on how to handle a plaintiff’s case under Title VII. [approve or disapprove?] [why?]
2. A course on new developments in EEOC cases, with tips on defending an employer in a Title VII case.
3. A lecture on legal remedies for Roman Catholic government employees who are discriminated against by diversity trainers.
4. A program about the Holocaust.
5. An update on current Freedom of Religion cases.
6. A seminar on current law and procedures in Native American tribal courts.
A seminar on current law and procedures in Wisconsin courts.
8. A legal argument why the Americans with Disabilities Act should be repealed.
9. A legal argument why the Americans with Disabilities Act should be strengthened.
10. A speech arguing hat all law firms should institute an affirmative action hiring policy in order to eliminate bias in the legal profession.
11. A speech arguing that all law firms should institute a color blind hiring policy in order to eliminate bias in the legal profession.
12. 'I . Q. and Its Relationship to Incarceration and Criminal Sentencing. A course presented by Charles Murray, author of The Bell Curve.
13. Capitalism and Its Relationship to Incarceration and Criminal Sentencing. A course by the Organization of Marxist Lawyers (OML).
14. The Breakdown of the Family and Its Relationship to Incarceration and Criminal Sentencing. A course presented by the Emmanuel Free Church.
15. Seminar: Discrimination Against creed in the Legal Profession: How Pro Bono Opportunities are Limited to Representing Liberal Causes.
16. Clarence Thomas and the High-Tech Lynching. A discussion of how black judges and lawyers are subject to discrimination if they do not follow a left-wing agenda.
17. A discussion of the importance of the Racial Bias Task Force Report.
18. A harsh critique of the Racial Bias Task Force Report.
19. A class on how laws regulating abortion discriminate against women.
20. A class on how legalized abortion discriminates against the unborn.
