Bias CLE 599 to 1
Monday, January 01, 2018
White Man Allowed to Offer Diversity Training
The title is a little misleading. It is true that Richard Clem, a caucasian, is offering courses that satisfy the Elimination of Bias Continuing Legal Education requirement for Minnesota lawyers. But the controversy surrounding his course is a complicated mix of ideology, race, and bureaucracy.
For the summer and fall of this year, Richard Clem CLE was not allowed to offer Elimination of Bias courses for credit. In November, the Board of Continuing Legal Education reversed the decision of its staff and Clem was again allowed to offer Bias CLE, as he had done since 2011. All's well that ends well, right? Well, not exactly. Let's start from the beginning.
After an attorney in Minnesota passes the bar exam, the attorney is subject to a continuing education requirement of 45 hours, every three years. Until 1995, these Continuing Legal Education (CLE) hours could be in any subject, so long as it was "directly related to the practice of law." Bar associations, law schools, law libraries, and private vendors offer courses to satisfy the requirement and attorneys choose among them.
In 1995, the Minnesota State Bar Association submitted a petition to the Minnesota Supreme Court (which licenses attorneys) to require three hours of ethics and two hours of "diversity training" as part of the 45 hour triennial requirement. The ethics portion was uncontroversial, but the diversity training mandate was subject to much discussion.
Part of the problem with diversity training was that the short petition to the Supreme Court had no details as to what types of classes would satisfy the requirement. It was as if using the word "diversity" was sufficient to quash any objection. The bar association eventually abandoned the term diversity training for a term used by the California Bar, "elimination of bias." The Minnesota Supreme Court granted the petition, created a committee to come up with definitions, and Minnesota became the second state after California to require its attorneys to take Elimination of Bias courses.
A poorly-defined requirement on hot-button issues was destined to cause controversy. In 1999 and again in 2001, the Minnesota Family Council and the Minneapolis chapter of the Federalist Society offered its own Elimination of Bias CLE called, "Bias in the Legal Profession: What Bias?" As the title suggests, the seminar presented an alternative to the politically correct view of bias. The Diversity Committee of the Minnesota Bar Association added the "What Bias?" CLE to its written agenda and suggested sending people to take the course in order to hear what was said.
The Minnesota Board of Continuing Legal Education, which grants credit for CLE courses, received complaints from several prominent attorneys about the "What Bias?" course. One attorney even suggested filing ethics charges against the presenters and participants. At its September 13, 2001 meeting, the CLE Board voted not to accredit such a course in the future and asked the Attorney General for an opinion as to whether or not credit could be denied retroactively for the Minnesota Family Council/Federalist Society course.
In December 2001, at the next quarterly meeting of the CLE Board, the course sponsors (who had not been invited to the September meeting) were able to address the board and argue that their course should be accredited. After the presentations, CLE Board Chair read the opinion from the AG that credit could not be retroactively denied. It left open the question of whether credit could be denied going forward for those classes whose ideology differed from the bar association. In 2001, the question was still murky.
The CLE Board staff responded to this murky situation by kicking the can down the road. If the Federalist Society wanted to sponsor a Bias CLE, it would have to be approved by the entire board, not just the staff. For a board that meets quarterly, this can be difficult. As a result, the Federalist Society postponed its 2003 "What Bias?" course until 2004.
The other thing that happened in 2003-2004 was that an attorney completed all of his 45 hours of CLE, except for the two hours of Elimination of Bias. Elliot Rothenberg argued that it violated his constitutional rights to be forced to pay for and attend the courses. Rothenberg put his attorney license at risk in order to challenge the constitutionality of the rule.
During the Rothenberg case, attorneys for the CLE Board held up the Federalist Society's "What Bias?" course as a shining example of how the requirement was not ideologically slanted. The Court upheld the requirement and ordered Rothenberg to take the courses, or risk suspension. Part of the Court's reasoning was the "vast variety" of course offerings that could be used to satisfy the Elimination of Bias requirement. This ushered in a period of detente, where the CLE Board approved pretty much anything, regardless of ideology.
Fast forward to 2016. In 2016, Richard Clem presented an Elimination of Bias CLE where he offered a hypothetical example of a traffic stop in St. Paul, where Clem lives. The tragic traffic stop of Philando Castile happened shortly after the Clem CLE, and Clem updated his website with some thoughtful comments about the case. (scroll down)
In early 2017, Richard Clem got word from the CLE Board that there had been some "feedback" about one of his courses. They did not specify which one of his courses that "feedback" was about. Clem's courses can be downloaded for free and the CLE Board staff listened to the 2016 Bias CLE offering. The staff's decision was that Clem could no longer offer Bias CLE because he was not "qualified." According to Clem (I do not speak for him or his ideology, but I have conversed with him about the controversy), the reason they questioned his qualifications was an "aw shucks"-type comment during his course where he said that he was no more qualified to talk about bias than any of his audience.
Whatever the rationale, the disturbing truth was that a CLE provider was denied the ability to offer Bias CLE in the future based on an anonymous complaint about an unspecified course for unknown reasons.
In September 2017, the CLE Board met and allowed Richard Clem to make his case for Bias CLE credit. I provided the above history of the Bias CLE rule to the Board at the same meeting. In November, the Board reversed its staff decision denying Bias credit in the future. Clem is again allowed to offer Bias CLE. I have requested the identity of the person who gave the "feedback" that started this whole controversy. That request is pending.
If the end result was just, why am I still working this issue? First, we can see what happens when you rely on an unwritten agreement. From 2004 until 2016, the unwritten agreement was that the rule would stay in place, but different ideologies would be granted credit. When the agreement is unwritten, you have to stay vigilant. After a change in executive directors at the CLE Board, the unwritten agreement was forgotten. Second, there is a disturbing subtext that someone can be denied credit for being the wrong color or having the wrong ideology (again, I do not speak for Clem or his ideology). Third, even if it was an excuse, the suggestion that instructors must claim superior knowledge about bias is wrong. A humble person who claims no special exemption from bias is exactly what is needed. Recall the humble speech of Senator Robert Kennedy when Rev. Martin Luther King, Jr. was assassinated. Assuming that Bias CLE is the way to solve society's problems (highly doubtful), then there should not be a penalty for a person admitting they have more to learn.
So what is next? I am still waiting for a response to my request to name the person who gave "feedback" that started this whole mess. This controversy again raises the larger issue of whether the government, in this case the Minnesota Supreme Court, can mandate something called Elimination of Bias without trampling on rights. If you are a lawyer, ask pointed questions of your colleagues, of CLE providers, and of current and former judges. Can you believe X and still be a lawyer? Could a CLE sponsor advocate Y and still get credit for its class? Should some ideologies get closer scrutiny than others from the CLE Board? Can a caucasian offer Elimination of Bias CLE? The answers should be interesting.
