The State Supreme Court this week turned down a petition from the State Bar seeking to offer diversity, equity, inclusion, and access classes as subjects eligible for continuing legal education courses for lawyers. This prompted Justice Rebecca Grassl Bradley, joined in full by Justice Patience D. Roggensack and in part (four paragraphs) by Justice Annette K. Ziegler, to issue a 33-page concurrence attacking DEIA in rather injudicious language. Grassl Bradley was also upset that other justices refused to engage with her argument. After all, it was 33 pages long and quoted lots of people, so it must be good.
The petition was denied without a hearing. Justice Rebecca F. Dallet, joined by Justices Ann Walsh Bradley and Jill J. Karofsky, dissented.
We are dispensing with some of our regular rules to bring you this special SCOW docket. Grassl Bradley gets much more than the usual 10 paragraphs WJI allocates to each justice. Dallet doesn't need that. We do, as usual, eliminate some citations and parentheticals to make the reading easier.
The case: In the Matter of Diversity, Equity, Inclusion, and Access Training for Continuing Legal Education
Issued by: Supreme Court Clerk Samuel A. Christensen
The court discussed the petition at a closed administrative conference on February 21, 2023, and voted to deny the petition. Therefore, IT IS ORDERED that the petition is denied.
The court's decision was released Thursday, July 13, almost five months after the vote and two weeks before the conservative justices lose the majority.
On March 22, 2022, the State Bar of Wisconsin...filed a rule petition asking the court to...create a new specialty continuing legal education (CLE) credit that would be called the "Diversity, Equity, Inclusion, and Access" (DEIA) credit. DEIA courses would address “the subject of diversity, equity, inclusion, access, or recognition of bias, which includes topics addressing diversity and inclusion in the legal system of all persons regardless of age, race, ethnicity, religion, national origin, gender, sexual orientation, gender identity, or disabilities and topics designed to educate attorneys on the recognition and reduction of bias.” Under the proposal, lawyers could use DEIA CLE credit-hours to fulfill their 30 hours of required CLE credits ....
In August 2022, the Board of Bar Examiners (BBE) recommended an alternative proposal to the court, which limited DEIA credits to courses related to subjects within the legal system and limited the number of DEIA credit hours attorneys could use to satisfy their CLE requirements to six credits per reporting cycle.
The decision mentioned three comments it received on the petition. Two comments were in favor, one was against.
Concurrence footnote 1 (inserted after the justice's name at the start of the opinion)
Proving well that many proponents of DEIA orthodoxy demonize its critics, the dissenting justices "choose not to respond" to this concurrence, instead dismissing it with a headline-grabbing caricature as "hostile, divisive, and disrespectful" "political rhetoric[.]" This concurrence cites more than a dozen United States Supreme Court decisions, multiple state supreme court decisions, Frederick Douglass, Martin Luther King Jr., Thurgood Marshall, Clarence Thomas, James Madison, Montesquieu, and at least an additional dozen legal scholars, authors, and professors. Of course, the real reason for the dissenters' refusal to engage with the substance of an opinion spanning more than 30 pages is the imminent change in court membership. The new majority will reverse this court's order at its first opportunity.
The dissenters borrow a rhetorical tactic from the modern political sphere increasingly employed by justices of this court in lieu of legal argument. When lawyers decline to respond to legal arguments advanced in a case, the court considers the point conceded.
Because lawyers already are receiving credit for such courses ... the petition is unnecessary and the court rightly rejects it without holding a public hearing. I therefore respectfully concur but write separately to highlight how DEIA courses damage human dignity, undermine equality, and violate the law:
1. Collectively, the buzzwords "diversity, equity, inclusion, and access" represent a smoke screen for a divisive political agenda that perniciously reduces people to racial categories and strips them of their unique individuality;
2. This petition originated in partisan controversy and is a well-documented step toward mandatory DEIA CLE;
3. The Bar's one-and-a-half page memorandum in support of its petition presents a pretextual and underdeveloped argument for attorney freedom of choice but all along the Bar has planned to seek compulsory DEIA CLE; and
4. The proposed rule raises serious moral and constitutional concerns.
If the Bar's end game were simply CLE credit, the petition would be easily dismissed as virtue signaling given the liberality with which the Board of Bar Examiners (BBE) already awards credit for such courses. But the Bar ultimately seeks to mandate DEIA training, impose group think on attorneys, and condition bar admission and continuing licensure on subscribing to an illiberal political ideology. Real diversity means welcoming dissenting voices, not coercing them into an echo chamber using the force of the State ....
Regrettably, our society is in the midst of "revert[ing] to being tribal and genetically determined." We live in an increasingly "race-obsessed" society — and one ever more obsessed with other immutable characteristics. Various institutions promote a lie designed to divide .... Under this distorted viewpoint, Black Americans "are all inexorably trapped in a fundamentally racist society, with the original sin of slavery and the historical subjugation of black Americans still determining our lives today" (quoting U.S. Justice Clarence Thomas).
Facially benign verbiage under the umbrella of DEIA shrouds this regression toward a freshly fractured society. Nice-sounding euphemisms aside, DEIA initiatives often presuppose the existence of certain "universal values," which are not actually universally shared, in an effort to stifle debate....
At times, the soothing oratory is unmasked and the quiet part said out loud. Ibram X. Kendi's 2019 book, How to Be an Antiracist, has become DEIA canon. He rejects Martin Luther King Jr.'s wisdom, declaring, "[t]he language of color-blindness . . . is a mask to hide racism. . . . The only remedy to past discrimination is present discrimination. The only remedy to present discrimination is future discrimination." This philosophy perpetuates an ugly cycle of race-based retribution. If it becomes universally accepted, contemporary victims of discrimination will seek the "only remedy" of "future discrimination" against their oppressors....
Many Americans have begun to see the "smooth-sounding siren of racial classification" for what it is: a tool for discrimination. Illiberal elites see the issue differently. They craft student bodies, corporate boards, and even voting districts to have just the "right" racial makeup. While decrying discrimination, they unabashedly discriminate on the basis of race, sex, and other immutable characteristics. They silence dissenters with the threat of being shunned as "bigots."
Recently, the ABA (American Bar Association) amended its policy to read, in relevant part, as follows: "Program organizers will invite and include prospective moderators and faculty members to create CLE panels that meet the objectives of Goal III. This includes, among others, moderators and faculty members from historically underrepresented communities e.g., racial and ethnic demographic groups/people of color, women, persons with disabilities, and LGBTQ+ individuals."
.... Such policies are morally wrong because each individual possesses inherent dignity; we are much more than our immutable characteristics. Exclusion and inclusion based on such categories harm human dignity and impede the enduring American goal of "achieving a more pluralistic society." Ultimately, identity politics should be rejected . . . because it poses a threat to republican self-government by corroding patriotic ties, fostering hatred, promoting cultural separatism, and demanding special treatment rather than equality under the law."
.... Given its ultimate responsibility for the CLE approval process overseen by the BBE, the Wisconsin Supreme Court cannot condone programming that violates equal protection.
In Minnesota, attorneys can take a class on avoiding "microaggressions" — i.e., how to be so boring no one can possibly take offense. Perhaps attorneys should have the freedom to take courses like these for credit, but mandating them would only force attorneys to subject themselves to political indoctrination.
Consider whether the proponents of mandatory DEIA CLE would agree courses presenting a conservative perspective qualify....
This court's "proper role" — whatever else it may be — is not to "[f]oster division[.]" Judges swear an oath to administer justice without respect to persons; we are to treat people equally. DEIA sorts people into arbitrary boxes and then treats them differently on the basis of race, sex, sexual identity, or disability. That alone justifies rejecting this petition....
An overview of this petition's origins illustrates both DEIA's troubling ideology and the Bar's strategic plan to make DEIA CLE mandatory. In late May 2020, a police officer in Minneapolis, Minnesota killed a Black man. The officer was later convicted of second-degree murder among other crimes.
That summer, protests and riots broke out across the nation. In Kenosha, Wisconsin, a police officer shot an armed Black man who was resisting arrest. The officer was not charged. During the ensuing riots, much of Kenosha was razed. The governor declared a state of emergency and activated the National Guard.
A political movement known as Black Lives Matter began about a decade earlier but acquired prominence following the Minneapolis murder. The movement advocates a radical political agenda and is proudly anti-law enforcement. It makes outrageous and unsupported claims on its official website, including "[t]he police were born out of slave patrols." Currently, the website lists several "demands," many of which are wholly unrelated to racial justice. BLM Demands, Black Lives Matter. The list states, in full:
In June 2020, the Bar issued an official statement endorsing the Black Lives Matter movement and repeating the slander that our justice system is irredeemably racist.... Under a link to this statement on the Bar's website appears a list of actions the Bar is taking to "step up[.]" The list includes "advancing a proposal that requires Wisconsin lawyers receive elimination of bias/diversity and inclusion training[.]"
As her first official act, the President of the Bar formed the Racial Justice Task Force in June 2020....
The Bar's Board of Governors acted on the task force's recommendations a year later, in June 2021.
.... The Bar's President-elect was not directed to merely form a task force to consider the pros and cons of mandatory DEIA CLE. The main motion as amended states the task force shall "study and collect data and information in support [but apparently not in opposition] and draft language for diversity, equity and inclusion credits to be mandatory for all members of the . . . Bar[.]" The purpose of the amendment, as documented in the minutes, was to "ensure" voluntary DEIA CLE is merely "a strategic step toward the main goal of mandatory DEI CLE[.]"
The Bar omitted its end goal of mandatory DEIA CLE from the petition presently before this court ....
Attorneys already enjoy considerable freedom to choose from a wide range of CLE incorporating DEIA concepts. As the adage goes, "if it ain't broke, don't fix it."...
Only exacerbating the petition's deficiencies, the Bar presents "facts" with no evidence. For example, the petition states, without support, "[r]ecent and repeated events have shined a spotlight on the systemic injustices and inequities that are present in our institutions, including the legal system." The Bar does not explain what these problems are or how they are connected to bias. Instead, the Bar simply assumes bigotry is at hand.... The conclusory nature of the Bar's argument is problematic in and of itself, but it also illustrates a broader issue: DEIA CLE is not so much about seriously studying the causes of injustices as it is about simplistically presuming the cause is inescapable bias.
Even if the Bar supplied some support for its premise, it has not submitted evidence about the effectiveness of DEIA CLE in remedying deficient behavior. Existing evidence suggests DEIA training can have negative consequences, at least when the training is mandated....
Against this backdrop, the Bar effectively seeks a virtue signal from this court, asking us to demonstrate "awareness of and attentiveness to" preferred "political issues, matters of social and racial justice, etc." without "taking effective action." The Bar explains it "sees this [proposed rule] as necessary to acknowledge DEIA as a real and important . . . [CLE] topic for study." The Bar, however, failed to provide evidence of any problem solvable by DEIA CLE. Instead, the Bar presumes the propriety of a controversial worldview, perhaps confident that any dissent would be squelched by the predictable and petty slanders of the cancel culture crowd. Adopting the proposed rule might make its proponents feel like they made a difference, but sowing racial division is "real change" the court rightly rejects.
The very point of mandating DEIA CLE would be to create a "goose-stepping brigade" of attorneys, but "the First Amendment applies strictures designed to keep our society from becoming moulded into patterns of conformity[.]" On its face, the proposed rule might seem viewpoint neutral, but anyone with even nominal exposure to its underlying illiberal political ideology knows the intent is to force a particular view on an entire profession. The DEIA movement's contempt for the First Amendment erodes the freedom of attorneys to advocate in their clients' best interests lest they run afoul of prevailing sensitivities ....
On this record, mandatory DEIA CLE would also violate Article I, Section 1 of the Wisconsin Constitution by infringing economic liberty without cause. Excluding attorneys from the profession because they refuse to embrace a political ideology would infect the entire legal system with injustice the constitution does not permit: "[t]hat is not a just government, nor is property secure under it, where arbitrary restrictions, exemptions, and monopolies deny to part of its citizens . . . free choice of their occupation[.]" This court lacks any authority to condition a license to practice law on the attorney's professed allegiance to a particular orthodoxy....
With an imminent change in supreme court personnel, the Bar will likely resubmit this petition, or more likely a version requesting mandatory DEIA CLE (hence the brevity of the dissent). Sworn to support our constitutions, the court must carefully consider the First Amendment implications of mandating DEIA CLE lest the court suffer another summary reversal by a federal court.
Tellingly, not a single member of the Bar's Board of Governors (a large body) opposed the petition; additionally, only one attorney wrote to this court in opposition to it. Although some may interpret the dearth of critical commentary as evidence of the petition's widespread support, "the absence of such voices" represents "a symptom of grave illness in our society." For our society to heal, DEIA proponents must stop demonizing dissenters....
The Court dismisses this rule petition without so much as a hearing, implying that it lacks even "arguable merit." See IOP.IV.A. (stating that the court should hold a public hearing on a rule petition when it has "arguable merit."). But twenty-one states, including our neighboring states, either require DEIA training or allow those trainings to count toward CLE requirements. And the American Bar Association (ABA) similarly recommends that states require one credit hour of such training every three years. Collectively, these states and the ABA, like our State Bar, recognize that DEIA training "is vital for attorneys to gain knowledge of individual and cultural differences and turn this knowledge into usable skills for serving a diverse community, thereby improving the quality of legal services." In short, the arguable merit of this rule petition is obvious and I would follow our internal operating procedures and hold a hearing.4 Accordingly, I respectfully dissent.
Dissent footnote 4
I choose not to respond to the substance of the concurrence, which is hostile, divisive, and disrespectful. This political rhetoric has no place in an order of the court. We should instead engage earnestly with opposing perspectives by granting a hearing on the petition, which is what our ordinary process requires.
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