RI Now Requires Attorneys Take DEI Continuing Education, So Equal Protection Project Will Create Our Own DEI Program

RI Now Requires Attorneys Take DEI Continuing Education, So Equal Protection Project Will Create Our Own DEI Program

“You may say I’m a dreamer, but I’m not the only one.” Imagine me thinking I could stop the DEI freight train moving down the Continuing Legal Education tracks in Rhode Island.

But I tried.

On May 12, 2023, I posted My Statement To RI Supreme Court Opposing Proposed Mandatory DEI Continuing Legal Education Requirement:

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.

Here is an excerpt 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.

There was no news on the proposed CLE requirement for almost a year, until the court released a Miscellaneous Order on April 24, 2024, adding a DEI credit requirement:

The definitions of DEI in Appendix A are fairly broad:

“Diversity, equity, and inclusion (DEI)” shall include programs that recognize the diversity of society and teach attorneys to effectively serve and have regard for this multi-lingual, multi-cultural, multi-racial, multi-religious, and multi-gender society while
focusing on equity by highlighting equal opportunity and outcomes for all and achieving equal justice under the law, regardless of being a protected class or status.

“Diversity” refers to the variety of personal experiences, values, and worldviews that arise from differences of culture and circumstance. Such differences include, but are not limited to, race, ethnicity, gender, age, religion, language, abilities/disabilities, sexual orientation, socioeconomic status, and geographic region.

“Equity” is the guarantee of fair treatment, access, opportunity, and advancement for all, while at the same time striving to identify and eliminate barriers that have prevented the full participation of marginalized groups.

“Inclusion” is the act of creating environments in which any individual or group can feel welcomed, respected, supported, and valued.

Examples of such programs shall include, but are not limited to, those that address one or more of the following: the challenges faced by groups underrepresented in or by the legal profession, eliminating bias, access to justice, increasing representation, reducing harassment, and barriers to hiring, retention, promotion, professional development, and full participation of underrepresented groups in the legal profession; give practical advice to participants that they can utilize and employ when improving DEI in their professional circles as well as the legal profession as a whole; and have speakers with personal and/or professional experience with DEI and offer unique insight into the challenges facing the legal profession and the justice system.

Now that Rhode Island mandates an hour of DEI CLE, the Equal Protection Project plans on creating a CLE program on DEI to be offered to Rhode Island attorneys, in compliance with these broad definitions, which will present a viewpoint that may not be presented by traditional DEI programming.

I’m hopeful that Rhode Island attorneys will be interested in something more than the same old, same old, DEI education. If successful, perhaps we’ll take it to other states.

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