On April 6, 2021, the Colorado Supreme Court heard testimony on whether to force lawyers and judges in the State to undergo “Equity” training in order to be licensed to practice. MSLF opposes the effort and filed a comprehensive comment with the Court on March 29. Additionally, Associate General Counsel William E. Trachman offered the following testimony, live, at the April 6 hearing. We’re not sure why the Colorado Springs Gazette, in its write-up of the hearing, opted not to cover the legal and substantive arguments against the proposal. So here, for the record, is what Trachman told the Court on April 6.
Testimony of William E. Trachman before the Colorado Supreme Court
On the Topic of the Proposed “EDI” CLE Mandate
April 6, 2021
Hello, my name is William Trachman, and I’m the Associate General Counsel at Mountain States Legal Foundation. Previously, I served as Deputy Assistant Secretary for Civil Rights in the US Department of Education, and I continue to serve as an Appointee on the Colorado State Advisory Commission to the US Commission for Civil Rights.
Mountain States Legal Foundation is dedicated to securing our constitutional rights, including rights under the First and Fourteenth Amendments. We strenuously oppose the proposed changes to the state’s CLE requirements, and are prepared to evaluate viable legal challenges to the proposed requirements, should they be adopted in the current form.
You can review our full, 7-page comment, submitted on March 29, for a fuller analysis of the case law and authorities that are implicated by the proposed rules. However, for the purpose of this testimony, I want to make three broader points.
First, the proposed changes are poorly worded, such that no EDI credit would be available unless an activity included at least three elements: the recognition, mitigation and elimination of bias, equal access to justice, and service of diverse populations.
So, for instance, an activity that only addresses mitigating and eliminating biases would not qualify, because it fails to address how lawyers can serve diverse populations. Moreover, many proposed classes will fail even in this regard, since there is no definition of what a diverse population is. A class that addresses serving the indigent, for example, may not qualify, because the population is defined by a single trait of indigency. But if the indigent are a diverse population because the demographics of the indigent include people of all races, ages, and sexes, then any population will presumably count as diverse.
I make these points not be critical, but because it’s important to reach consensus on the idea that the proposed changes cannot be adopted in their current form, regardless of whether you agree with my next two points.
My second point is that the proposed changes subject certain speech to viewpoint discrimination, which is generally impermissible under the First Amendment.
A CLE course that challenges the idea that lawyers ought to focus more on implicit bias, or that rejects the idea of trying to address numerical disparities in outcomes, as likely to lead to illegal race or sex discrimination, would be unlikely to qualify for EDI credit under the proposed rules. In this way, the government has improperly singled out a subset of messages for disfavor.
The natural response to this argument is that there is no prohibition on speech that rejects a focus on implicit bias; that speech can still occur, just without the blessing of EDI credit being given. That argument, however, is contrary to a recent case decided by the US Supreme Court, Matal v. Tam, where the Court rejected the idea that trademark recognition was just a benefit afforded to certain speech, and not a prohibition on offensive speech, so there was no First Amendment protection. In Matal, the Court ruled in favor of a music band with an arguably offensive name, holding that the government could not reward certain speech that it liked with special benefits, while singling out other speech.
More broadly, I want you to imagine a different proposal, in the distant future of Colorado, where there is a proposed rule mandating that each attorney and judge take 2 hours of CLE credit on why Roe v. Wade was wrongly decided. Surely, we would be unlikely to let such a change pass.
My third and last point address the equal protection clause. I watched a CLE that qualified for EDI credit in Missouri, and which was hosted by a reputable law firm and where the speaker was a reputable law professor. The speaker noted
Who decides what news gets covered? Who decides what TV shows are produced? Who decides what books get published? . . . You’ll get a sense of where this is. This is overwhelmingly controlled, right, by white America.
Replace the word white with Jewish, and consider whether such a course would be given any CLE credit at all, much less mandated for lawyers and judges.
In my time in the Civil Rights Division, I personally witnessed schools engaging in outright race discrimination in the name of equity and diversity. Students were given different assignments based on race, disciplined differently based on race, and instructed that white students needed to avoid signing onto whiteness. These sorts of racially exclusive statements were considered race discrimination in the context of education, and there is no reason why the same statements would not implicate the equal protection clause in this context.
For these reasons, the proposed changes ought to be rejected.
