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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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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