Jerry Blackwell - Wrestling with the Past

- posted by Peter @ 10/02/2022 01:11:00 AM

 
Separate But Equal Continuing Legal Education
On Monday, the Hennepin County Bar Association is sponsoring a Continuing Legal Education seminar called "Attorneys of Color PLUS: Maneuvering Barriers to the Successful Practice of Law." You may be wondering what "PLUS" means. The course description gives some answers:

This CLE will present issues of attorneys of color who face additional barriers such as being female, mothers (parents), LGBTQI, immigrants or of different nationality, having a mental health/addiction/or other disability, etc. There will be two different types of lessons available, depending on the background of the CLE attendees.  Those who are not attorneys of color will learn from the knowledge and personal experience of the panelists about the specific obstacles attorneys of color face in trying to fully participate in practicing law to reach the result of a satisfying career.  The goal will be to understand why diversity efforts must go beyond hiring to involve full inclusion in the work place. Those who are attorneys of color will learn about how to overcome the obstacles they may encounter while working within different types of employment and non-employment environments, with different types of supervisors/colleagues/clients, in order to move ahead in one’s career.... 

To be clear, I believe a non-governmental association should have freedom of association. But that doesn't mean they should have freedom from criticism. It is not overstating things to say that the CLE sponsors will send you to a different room depending on the color of your skin.

My position on such racial separation has not changed since I posted about the "shrimp boil" issue 12 years ago. To review, a number of minority bar associations hosted an "Authentic Cajun Shrimp Boil." The invitation read, ”This event is for minority attorneys, minority summer associates and minority law students,” the invitation read. “No other guests, please. Thanks in advance for helping us focus this event on networking with our peers.”  It should not be illegal for them to have such events, but they should be criticized for it.  I wrote about the fallout here and here.

One wrinkle in the current case is that the "Attorneys of Color PLUS" event is that it is an "Elimination of Bias" CLE.  Minnesota attorneys are required to take 45 hours of continuing legal education every three years.  Of the 45 hours, three hours must be about ethics and two hours must be in "Elimination of Bias."  We are not at a point where attorneys must choose an event like the Hennepin County Bar Association's racially segregated offering, but one day we might.  The title of this blog references the Minnesota Supreme Court's defense of the rule, saying that there were hundreds of course offerings.  Maybe so, but most of them are from one ideological perspective.  Now, it seems we have moved from ideas to actions in the sponsoring of these courses.
- posted by Peter @ 11/11/2018 04:44:00 PM

 
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.
- posted by Peter @ 1/01/2018 10:17:00 AM

 
Make-You-Want-to-Cry-for-Your-Mommie Diversity Training

The Star Tribune has a story about the mayoral debate. A cop refused to shake hands with a passer-by, claiming a cold. The man at the debate said that it was because he was with his male partner. Here are the responses by the candidates:

Hakeem, who gasped audibly and visibly over the story, said she favored "severe,
make-you-want-to-cry for-your-mommy" diversity training, especially when it
comes to the transgender community.
Nolan said, "They won't shake hands
because they always have their hand on their weapon. They're ready to shoot to
kill."
Rybak called the story "appalling" and said he had worked to
"diversify" and "reform" the department.
Harcus said, "accountability is my
bottom line."
McLaughlin said he wants greater diversity in the department
and zero tolerance for bad cops.
Koscielski said, "What the cop should have
told you is, 'Sir, because of my personal safety, I don't want to give up my gun
hand.' You never want to give up your gun hand."

- posted by Peter @ 9/07/2005 09:51:00 PM

 
Scottsboro

This PBS documentary highlights the problem with blanket accusations of bias. In the infamous Scottsboro case, young black men and boys were accused of raping two white women. How do we make broad statements about how groups are treated by the "system"? Is this a rape case, telling us about how women victims are not taken seriously? Or is it a lynching of blacks, telling us about racial injustice in the legal system?
- posted by Peter @ 4/30/2005 11:53:00 PM

 
Check out our sister blog, SwanBlog.

- posted by Peter @ 9/19/2004 11:37:00 PM

 
STOP, IN THE NAME OF THE LAW!
Elliot Rothenberg appeals to the Supremes

On June 21, 2004, Elliot Rothenberg filed a Petition for Certiorari with the U.S. Supreme Court in his challenge of the constitutionality of the Bias CLE rule. Read a copy of the petition at biasbattle.com.
- posted by Peter @ 6/28/2004 01:20:00 PM

 
NOT SURE ABOUT CONSTITUTIONALITY

California Bar Association opines here that courses on general bias in society, if approved, would be subject to legal challenge.
- posted by Peter @ 6/21/2004 05:59:00 AM

 
BIBLES, BLOGS & BRIAR PATCHES

King Banaian at SCSU Scholars plans to live-blog during his mandatory diversity training up at St. Cloud State. This seems to up the ante a bit on these classes. Remember the case of the corrections workers who silently read their bibles during diversity training? Live-blogging is the next logical step. What are they going to do, throw him out of the class? Oh no, not that! Don't throw me into that briar patch!
- posted by Peter @ 5/01/2004 02:01:00 AM

 
SICK TO DEATH...

Our friends at Powerline have a post on the case of Gerald Amirault. In reading the post about child care sex abuse case hysteria in the 1980s, I immediately thought of this case in Scott County, Minnesota from 1984. Recall that the Scott County attorney at the time stated that she was "sick to death of things like the presumption of innocence." (Star Trib. 9/6/87)

People opposed to the Elimination of Bias legal education requirement are wrongly portrayed as naive Pollyannas who think the justice system is perfect. The Amirault case (and others like it) demonstrate that there are imperfections in the legal system that do not fit neatly into protected classes or victim groups. Unless day care workers who dress up as clowns are a protected class, this case would not meet the ideological litmus test for the Elimination of Bias requirement. Implicit and explicit viewpoint discrimination creates an ideological imbalance of courses offered: 599 liberal, one conservative, and no apolitical courses.
- posted by Peter @ 5/01/2004 01:46:00 AM

 
BIAS CLE REQUIREMENT CALLED "REPULSIVE"

Check out Mark Nicodemo's post here.
- posted by Peter @ 4/11/2004 08:38:00 AM

 
ROTHENBERG CASE -- ABA JOURNAL

Here is a story in the ABA Journal E-Report on the case.
- posted by Peter @ 4/02/2004 06:40:00 PM

 
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.

- posted by Peter @ 3/26/2004 06:41:00 AM

 
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.
- posted by Peter @ 3/26/2004 06:09:00 AM

 
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.


- posted by Peter @ 3/26/2004 05:59:00 AM

 
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.”

- posted by Peter @ 3/26/2004 05:57:00 AM

 
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.)

- posted by Peter @ 3/26/2004 05:55:00 AM

 
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.




- posted by Peter @ 3/26/2004 05:50:00 AM

 
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.

- posted by Peter @ 3/26/2004 05:48:00 AM

 
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.

- posted by Peter @ 3/26/2004 05:45:00 AM

 
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.

- posted by Peter @ 3/26/2004 05:43:00 AM

 
COURT RULING IN ROTHENBERG CASE

Take a look at this. This weblog will make a point-by-point response.
- posted by Peter @ 3/26/2004 05:42:00 AM

 
LINKS

Don't forget to check out Biasbattle.com. Also, take a look at Powerline, a proud member of the Northern Alliance.
- posted by Peter @ 3/16/2004 06:28:00 AM

 
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?
- posted by Peter @ 3/14/2004 05:15:00 PM

 
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.
- posted by Peter @ 3/14/2004 05:07:00 PM