Court-ordered 'elimination of bias' seminars threaten freedom of thought

Star Tribune
December 12, 2001
Katherine Kersten

It's become a ritual in corporate America. Once a year, the whole staff files into a meeting room and settles in to hear a "diversity" trainer explain that America isn't a very nice place to work and live.
The problem, the trainer insists, is that white heterosexual males run the show. They keep women, racial and sexual minorities, and disabled people down. Why are there more male truck drivers than female? Why are Hmong people "underrepresented" in the medical profession? The choices and behavior of women and Hmong people have nothing to do with it. White males are the culprits; they use the institutions they control to keep power for themselves.

Most folks nap through these seminars. They know that life is far more complex. They know, too, that the people who do diversity training are often ideologically motivated. They may use the language of diversity. Frequently, however, they seek to impose their own politically inspired views on everyone else.

Private companies, of course, are free to make politicized diversity training a condition of employment. But the state cannot compel individuals to submit to such training in order to obtain licenses to practice their profession. Yet today, Minnesota lawyers find themselves in just this situation. Since 1996, the Minnesota Supreme Court has required attorneys to participate in its version of diversity training -- called "elimination of bias" education -- as a condition of holding a license to practice law.

How did this happen? In 1990, the court set up a task force to investigate the existence of racial bigotry in the state's legal system. The task force was heavily politically slanted. As a result, its 1993 report portrayed Minnesota in terms usually reserved for South Africa. The report asserted that Minnesota's legal system helps perpetuate the state's "racial caste system."

According to the report, the problem is this: "Although the justice system is no longer made to enforce the ultimate social control of slavery ..., [it] still finds itself being used as a powerful tool of the pervasive prejudice and the subtle, often elaborately camouflaged discrimination that still deeply scars our national life."

If this is true, Minnesotans should be outraged. Fortunately, it's not true. The task force report was seriously methodologically flawed, and most of its claims lack any substantive basis.

Dr. David Ward, a University of Minnesota sociologist who reviewed the document, pronounced it "the most biased report I've seen in a long time." Indeed, according to Ward, the report would be an excellent text to use in teaching graduate students about the many ways that statistics can be misused.

Despite such criticism, the Minnesota Supreme Court ratified the racial bias task force findings. In addition, it made "elimination of bias" training a mandatory component of the continuing legal education that lawyers must complete to retain a license. Apparently, the court concluded that Minnesota attorneys are a bigoted lot, who need the guidance of the enlightened few to amend their worldview.

Today, "elimination of bias" seminars come in several forms. Some consist of dry recitations of data. Others are blatantly ideological.

For example, there's "Transgender Issues in the Workplace." (Among the Do's and Don't's: "If you are not certain which gender pronouns a client prefers you use in reference to him or her -- ask!") Or "Rethinking Minority Recruitment and Retention." ("Until White America concludes that it is in the best economic interest to make Black, Brown, Red and Yellow America a part of the power structure, progress will be ... substantive for only a select few.")

In the last several years, however, one seminar has offered an alternative to such preachy and predictable rhetoric. This year, the program -- entitled "Bias in the Legal Profession: What Bias?" -- was cosponsored by the Federalist Society and the Northstar Legal Center.

This seminar closely examines the evidence on racial bias, and demonstrates that justice in Minnesota is in fact essentially colorblind. It also raises questions about the propriety of state-imposed attempts to shape lawyers' attitudes on controversial questions of politics and morality.

Yet even one such program is too much for the forces of "diversity." In September, a number of groups -- among them the National Asian Pacific American Bar Association and the Lavender Bar Association -- berated Minnesota's Continuing Legal Education Board for accrediting the Federalist/Northstar seminar.

These groups demanded that no such programs be accredited in the future, and a number even insisted that credit be retroactively denied for this year's course. (The board complied with the first demand, and requested an opinion from the attorney general on the second.) Thursday, the Federalist Society and the Northstar Legal Center -- which weren't invited to the September meeting -- will have a chance to respond.

Minnesota already has human rights laws and rules of professional conduct that prohibit and punish discriminatory conduct by lawyers. But the Supreme Court's "elimination of bias" requirement has a very different purpose. It does not seek to regulate conduct. Instead, it seeks to dictate how lawyers think about complex political and moral questions, like the causes of racial disparities and the morality of same-sex sexual behavior.

We trust the legal profession to defend our rights of freedom of thought and conscience. Who will speak for lawyers, now that theirs are threatened?

-Katherine Kersten is a senior fellow of the Center of the American Experiment in Minneapolis.