My Statement To RI Supreme Court Opposing Proposed Mandatory DEI Continuing Legal Education Requirement
“By adopting the DEI approach to mandatory CLE training, the Court would be adopting one side of an ideological battle, and a side we suggest is not consistent with Rhode Island or federal equal protection law.”
At CriticalRace.org and EqualProtect.org, we have catalogued and acted against racial and ethnic discrimination done in the name of Diversity, Equity, and Inclusion (DEI). The spread of DEI group-identity ideology has captured almost every major institution, but there are exceptions and there is growing pushback.
The problem with DEI is that it is a group-identity ideology that measures equality based on group performance. Treatment of the individual is not the focus, group outcomes are the focus. That is not our legal tradition, which focuses on fair treatment of individuals without regard to race (or other legally protected factors). If every individual is treated with an equal protection of the laws, group outcome is irrelevant.
Unfortunately, DEI is moving into the legal sphere, with 11 states requiring DEI Continuing Legal Education (CLE) credits in order to maintain admission to the Bar. Such mandated coursework in the past has been reserved for legal ethics, not specific substantive areas. Putting one’s livelihood and professional career at risk over DEI CLE is a mighty large hammer to hold over an attorney’s head.
Rhode Island may be the 12th state to impose a mandatory DEI CLE requirement, under a proposal posted by the Rhode Island Supreme Court. The proposal would require that one of the 10 hours of required CLE credits be on DEI.
The comment period for the rule proposal ended today. I filed a letter memorandum opposing the Rule. You can read the full letter at the bottom of this post. Here is the introduction:
I have been a member in good standing of the Bar of the State of Rhode Island since 1994. I submit this memorandum individually and in my capacity as President of the Rhode Island-based Legal Insurrection Foundation (LIF) and its Equal Protection Project (EPP)(EqualProtect.org),1 in opposition to proposed amendments to Article IV, Rule 3 of the Supreme Court Rules on Mandatory Continuing Legal Education (MCLE).
In an Order dated April 14, 2023, the Court invited “[a]ny member of the bar interested in offering comment [to] do so in writing by submitting a memorandum containing their comment to the Clerk on or before Friday, May 12, 2023. 2 I submit these comments because adding mandatory Diversity, Equity, and Inclusion (DEI) programing to the MCLE requirement is not justified given the highly politicized nature of DEI and could create the appearance that the Court is imposing an ideological litmus test on the Bar on a subject that is ill-defined and hotly disputed.
I do not oppose Bar members being able voluntarily to take DEI programming that otherwise qualifies for MCLE credit. There already are many such programs available voluntarily.3 This mandatory versus voluntary distinction is critical in my view given the public debate around DEI.
There’s a lot of good stuff in the letter (humble brag), including information on why DEI is not consistent with equal protection, inevitably devolves into discrimination to achieve ‘equity,’ is counterproductive and ineffective, and is political. Some excerpts:
DEI itself is an ideological viewpoint which measures racial equality based on group outcomes, rather than individual treatment. Proponents of DEI often don’t recognize that DEI is an ideological group-identity choice. But it is. Our viewpoint is that as long as each individual is treated fairly without regard to race (or other protected attributes) then group outcomes don’t matter. By adopting the DEI approach to mandatory CLE training, the Court would be adopting one side of an ideological battle, and a side we suggest is not consistent with Rhode Island or federal equal protection law.
The DEI identity group ideology as practiced and as documented by LIF, inevitably does not live up to these non-discrimination principles because it promotes group identity outcomes over individual treatment, frequently seeking to normalize discrimination in the name of “equity.” ….
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There also is substantial doubt that DEI programming achieves its stated goals, or improves race relations or equality. See, e.g., Jesse Singal, What if Diversity Training Does More Harm Than Good (NY Times, Jan. 17, 2023)6; Zulekha Nathoo, Why Ineffective Diversity Training Won’t Go Away (BBC, June 16, 2021)7; Dobbin and Kalev, Why Doesn’t Diversity Training Work? (Anthropology Now, Sept. 2018).8
It is because of the frequent discriminatory impact of DEI, and its counterproductive outcomes, that opposition to DEI has arisen as DEI programs spread in the aftermath of George Floyd’s death in late May 2020. According to the UCLA Forward Project’s anti-CRT Mapping Project, for the period January 1, 2021, through December 31, 2022, 563 anti-CRT measures have emerged from state and/or local authorities in every U.S. state besides Delaware. Kyle Reinhard, CRT Forward Releases New Report on Anti-CRT Measures and Trends, UCLA School of Law CRT Forward Project (Apr. 6, 2023)9. The Court also can take judicial notice that DEI has become a hotly contested political issue, splitting largely along Democrat (for) and Republican (against) lines.
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Important free speech organizations have expressed concerns about DEI generally, including mandatory DEI statements and training as part of employment. For example, the Foundation for Individual Rights and Expression (FIRE) has noted that “ideologically motivated DEI statement policies can too easily function as litmus tests for adherence to prevailing ideological views on DEI, penalize faculty for holding dissenting opinions on matters of public concern, and ‘cast a pall of orthodoxy’ over the campus.” ….
Debate on hotly contested issues is a fundamental skill that attorneys should cultivate and honor in the profession. But such robust debate about DEI, including opposition to current discrimination to remedy past discrimination, is likely to have one falsely branded a “racist.” Penalizing or demonizing those who disagree as a core philosophy associated with DEI programming is inconsistent with the purpose of MCLE….
It also is noteworthy that only 11 states have mandated DEI training to date.16 More importantly, pushback has begun against mandatory diversity CLE requirements, as it has in other fields. For example, in an amendment to a rule regulating the Florida Bar, the Florida Supreme Court rejected a recently adopted rule mandating a minimum number of “diverse” panelists for all Florida CLE training sessions ….
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Conclusion
As reflected above, there are many good arguments against mandating DEI coursework as part of the MCLE requirement to maintain membership in the Rhode Island Bar. A strong case can be made that DEI is an ineffective group-identity ideology that frequently normalizes discrimination in the name of equity, leading to substantial pushback and political debate. The Court should not mandate that attorneys take a DEI program to retain their Bar membership. We suggest that whatever benefits DEI allegedly holds can be achieved by voluntary study, not mandatory CLE coursework. For the foregoing reasons, I oppose the proposed Amendment.
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Comments
Brilliant. Death to DEI requirements.
Beyond that, death to all things DEI.
Can you please list the 11 states that require DEI CLE, or tell us where such a list can be found?
“There’s a lot of good stuff in the letter (humble brag) . . .”
You deserve to brag, but humbly of course. 🙂
I’m inspired by your work.
This is why I make LIF my non-profit beneficiary of choice whenever it is time to donate a few dollars to charity.
The amendment to the mandatory Rhode Island CLE rules defines equity as
“the guarantee of fair treatment, access, opportunity, and advancement for all.”
The legal eagles in RI do not believe merit. Gotcha..
I sincerely hope they carefully consider all the “good stuff” in your letter.
“Advancement for all”….. equal opportunity to advance will be what most people assume. Foolish us. Classic slight of word.
Professor Jacobson is a true hero, standing up to this utterly noxious, racist, unconstitutional, inequitable and corrosive “DEI” and “equity” nonsense being contrived and proffered by the vile Dumb-o-crats.
One thing I never see attacked is the quality of the proposed mandatory training. Even assuming that DEI were an unalloyed good, what is the foundation of what is being taught, and what are the credentials of those teaching it? We know of course that it is a bunch of made up gobbledygook pushed by mercenary hucksters. I don’t believe we concede the argument by attacking it on this basis also. What we do is embarrass the entire program and its backers, while presenting them with the impossible task of presenting a well thought out, factually grounded program of study supporting their view.
Not a Legal Beagle, so to read your letter Prof. J. and follow it through to your closing makes a sincere, knowledgeable and well laid out case of why the proposed mandatory instruction hours for required credits should not go forward.
Just a Great Job!!
If anybody thinks a lawyer listening to a 60 minute audio delivering a Communist theme will pay attention, he or she is dreaming. I take my CLE seriously because I want to learn. Many lawyers have told me they pay no attention to courses they select. I laugh at the .NY state required courses to change society even as I am forced to listen. How do lawyers who do not care about learning react? Requiring this garbage is like the NY elite double masked outside or driving a car alone. Virtue signal to your Park Slope friends so you will be accepted
But you’re wrong, Professor. This is not just a political fight. The DEI indoctrination is a religious fight. DEI is a religious doctrine of Progressivism. You can’t win if you don’t acknowledge this – because it is (in their eyes) an issue of right versus wrong. And we want our lawyers (and academicians and gov’t employees and judges and politicians and…) all on the side of right, right?
It’s not a question of politics. It’s a question of using politics to advance a specific religion. To put it in legal terms, it is a religious test for continued exercise of your profession.
The Constitution, as amended, contains in a couple of places; The Fourteenth Amendment and The Fifth Amendment, the following proscription: “No person shall be deprived of Life, Liberty or Property without Due Process of Law…” To compel a person to subscribe to a set of beliefs and a course of action that is antithetical to the principles upon which those Constitutional proscriptions rest would not only be a violation of the Constitution itself but a violation of the very principle contained in The First Amendment proscription against the Establishment of a Religion. Equity is NOT Equality. Gender is NOT Sex. Racial Discrimination, in the name of some nebulous objective of creating a more enlightened society is beyond the powers granted to The State or The Federal Government by the founding documents. Those are matters best addressed by other institutions, in particular, The Church, a realm that the Constitution EXPRESSLY DENIES to Government at every level.