American Renaissance

Required Course on Bias Upheld

Minnesota Court Supports CLE in Freedom of Speech Challenge

David L. Hudson Jr., ABA Journal, Apr. 2

Requiring attorneys to take courses on eliminating bias in the legal system is not unconstitutional, the Minnesota Supreme Court has ruled. The court’s March 25 decision becomes at least the second judicial opinion to uphold such a continuing legal education requirement. In Re Rothenberg, No. A03-884.

In 2000, a California appeals court reached a similar result in Greenberg v. State Bar of California, 92 Cal. Rptr. 2d 493. Currently, California, Minnesota, Oregon, Washington and West Virginia have adopted such courses. The ABA House of Delegates at its most recent midyear meeting amended the ABA Model Rule on Minimum Continuing Legal Education to recommend attorneys be required to take courses on diversity and the elimination of bias.

“MCLE programs that relate to discrimination and bias that impact on the fair delivery of legal services and justice can identify weaknesses in the system that require attention and resolution, and are a valuable and essential component of the full CLE curriculum,” said Lawrence R. Baca and Suzanne E. Graber in a news release. Baca is chair of the ABA Commission on Racial and Ethnic Diversity in the Profession, and Graber is chair of the Standing Committee on Continuing Legal Education.

In September 1995, the Minnesota Supreme Court ordered an elimination-of-bias requirement as part of the continuing legal education program in Minnesota. The order requires attorneys to take two hours every three years.

Minneapolis-based attorney Elliot Rothenberg did not fulfill the requirement from July 1, 1999, to June 30, 2002. After receiving a final warning, Rothenberg requested a hearing before the Board of Continuing Legal Education and challenged the constitutionality of the elimination-of-bias requirement.

According to the supreme court decision, Rothenberg argued that the rule violated his First Amendment rights of free speech, the establishment clause of the First Amendment and the freedom of conscience clause of the state constitution. He contended the requirement violated his free speech rights because he was forced to pay for courses that presented ideas and beliefs with which he disagreed, including assertions of bias in the Minnesota justice system.

He also argued the requirement “has turned into an engine of divisive political ideology.”

Rothenberg and the board sparred over the application of the U.S. Supreme Court’s 1990 decision Keller v. State Bar of California, 496 U.S. 1. In Keller, the court ruled that lawyers could be compelled to pay dues to a state bar association to fund activities germane to the goals of regulating the legal profession. But the court said attorneys could not be forced to fund activities not germane to these goals and of an ideological nature, such as lobbying on political issues.

“Based on our review of the elimination-of-bias requirement, we conclude that under the Keller analysis that this requirement is germane to the goals of regulating the legal profession and improving the quality of legal services in Minnesota,” Justice Paul H. Anderson wrote for a unanimous Minnesota Supreme Court. The court also cited with approval the California appeals court decision that upheld a similar requirement there.

The Minnesota court distinguished the course requirement from U.S. Supreme Court cases regarding the forced flag salute and license plate cases of West Virginia v. Barnette (1943) and Wooley v. Maynard (1977). In these compelled-speech cases, the court struck down mandatory requirements as violating individuals’ freedom of conscience or individual autonomy.

“In contrast, the elimination-of-bias requirement does not force Minnesota lawyers to say ‘I believe in X’ or manifest agreement with anything,” the court wrote. “It only requires Minnesota lawyers be passively exposed to certain ideas by attending courses on the elimination of bias in the legal profession and in the practice of law.”

The court also rejected Rothenberg’s argument that the course requirement violated the establishment clause by promoting religion. Rothenberg had argued some of the courses had given “special emphasis to propagating approval of or at least sympathy for Islam.” The court determined the law’s main purpose was secular, it did not have a primary effect of advancing or inhibiting religion, and did not excessively entangle the state with religion.

The court ordered Rothenberg, whom it described as “a longtime member of the Minnesota bar in good standing,” to comply with the CLE requirement by July 1, 2004, or risk having his law license placed on involuntary restricted status. A lawyer on involuntary restricted status “cannot engage in the practice of law or represent any person or entity in any legal matter or proceedings within the state of Minnesota other than himself or herself.”

Rothenberg could not be reached for comment. However, Peter Swanson, another Minnesota attorney who vigorously opposes the rule, responded to the court’s decision.

“The decision is bad because the court failed to address many of the issues I raised in my [amicus] brief,” Swanson says. “The court ignored my argument that the rule is viewpoint discriminatory. The whole point of the requirement is to eliminate bias, which is a certain viewpoint. The court also minimizes the burden this rule places on attorneys in taking these courses.

“I compare this rule regarding the elimination of bias to the cases involving prayer at public school graduations or football games,” Swanson says. “There was no passive exposure or passive listener doctrine in the school prayer cases.

“When the bar says that the requirement is not bad because there are 600 course choices, I say that that is akin to saying that Imelda Marcos has 600 different pairs of shoes,” Swanson says. “Sure, there are 600 of them, but they are all the same size. Here, the ‘size’ is that all of the courses further a liberal ideology.”

Margaret Fuller Corneille, executive director of the Minnesota Board of Continuing Legal Education, said the board was pleased with the court’s decision. “The rules of the CLE Board are the rules of the Minnesota Supreme Court, and the court determined that the elimination-of-bias courses are an appropriate requirement for attorneys in this state.

“We have a set of learning goals that we apply to the elimination-of-bias courses,” she says. “These learning goals are fairly specific in that the courses must educate attorneys about the elimination of bias in the legal system or must deal with removing barriers to hiring or must educate attorneys about other problems identified in reports on bias.”

©2004 ABA Journal