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January 5, 2004

What’s All This Fuss Over Anti-Bias CLE in Minnesota?

Filed under: pre-06-2006 — David Giacalone @ 3:56 pm

pointer dude

Recently, there’s been a lot of weblog space given to the interesting question of whether Minnesota lawyers should be forced to take three hours every three years of “anti-bias” continuing legal education.  [See, e.g., Powerline, MyShingle, Overlawyered, Political Junkie, Spitbull, and this article from the Minneapolis Star Tribune.] 


I’m not at all certain that the amount of actual bias among lawyers in Minnesota is so great that a specific CLE requirement is necessary to achieve the laudable goal of preventing unlawful or unethical bias by practicing lawyers. Perhaps that topic could instead be simply one part of a mandatory ethics CLE component.   But, the funny thing about bias is that it can be institutional (and therefore need addressing) or subjective (and also need addressing — if only to help eliminate unwarranted feelings of victimization). 


It is difficult to imagine that a State’s highest court lacks the authority to require a specific anti-bias CLE requirement, despite the fact that only a small percentage of the bar “needs” to be educated on this topic — just as it can require specific procedures relating to keeping clients’ accounts, despite the fact that only a small percentage of lawyers ever misappropriate client funds.  So, going to court to fight the requirement seems futile — and sort of ironic when done by folks who often decry the over-use of courts to settle what are really political or personal arguments.


wrong way  Like the Greenberg appellate court in a similar California case, I recognize the Minnesota dissenters’ “desire to avoid exposure to what they perceive to be a well-intentioned, but sometimes patronizing, condescending, and inept educational agenda”   What I cannot buy, however, is their argument that they must be protected from “indoctrination.”

  • First, they are all big boys and girls who will not be brainwashed by the politically-correct preaching of over-zealous presenters.  They are far more likely to rebel.  If there is any real danger of indoctrination, I wouldn’t want these lawyers representing me.

  • There are over 600 highly varied courses and “experiences” that can fulfill the requirement, making the selection of a non-offensive session rather easy.

  • As the Star Tribune article states, not only do those with opposing viewpoints have the right to propose their own classes, but they have done so:  “One class that approaches anti-bias education with skepticism — called ‘Bias? What Bias?’ — has played to standing room-only crowds of lawyers seeking ‘to comply with the requirements and skip the usual indoctrination,’ said lawyer Scott Johnson [who is Big Trunk at Powerline Blog], who attended one of the classes.”  

  • The Greenberg court got it right when it stated: “Moreover, in light of the relevant case law, we find it difficult to understand appellants’ argument that their First Amendment rights are violated by a requirement that they merely be passively exposed to classes relating to these subjects, without being compelled to manifest any agreement or allegiance to their goals or other political agendas.”

When lawyers disagree with a decision, they have words and reason to make their point — they don’t have to play hooky on test day, nor exaggerate the effects of the unpopular curriculum.  If this CLE requirement is wrong-headed and unnecessary, talented and enthusiastic opponents can help prove that point.  They can attend sessions that they believe are particularly inappropriate and doctrinaire and respectfully and constructively raise the necessary issues.  They can do the same within the public marketplace of ideas.  In the end, the purposes of the current anti-bias requirement may be achieved through the (shocking) exchange of ideas and better understanding of perspectives.   And, perhaps the MCLE Board and Minnesota Supreme Court will be able to declare victory and end the requirement. 

P.S.  FedLawyerGuy Jerry Lawson wrote a Comment I’d like to share, along with my response:

Jerry:  Fortunately, my state bars do not require such course. I would be an unhappy camper if they did.

In some federal agencies all employees are required to take such classes. Every such class I’ve seen has been terrible–so bad as to be a waste of time, and insulting to boot. I’m doubtful that the quality of instruction would be better in the CLE context.

David: Hi, Jerry.  I sat through federal sensitivity classes, too, and they went from terrible to well-done. The difference here is that there is no such thing as “such classes” — there are literally hundreds of ways to fulfill the requirement, from seminars to drama to rallies, etc. We had no chance as federal employees to create our own sensitivity curriculum or to reject the official point of view.  Here, the “opponents” have created approved sessions that get sell-out crowds and rave reviews.

Using limited, filtered facts, virtually any requirement, law, decision can be made to look silly. But, a broader, fairer perspective often shows that pilloried proponents weren’t necessarily so foolish.

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