Bias, DEI, and CLE: Navigating the Constitutional Limits of Mandatory Training

Welcome to FEDSOC forums, a Federalist Society podcast. I'm Elizabeth Slattery, Vice President of Practice Groups. Be sure to subscribe wherever you get your podcasts so you won't miss an episode. Now please enjoy today's conversation. Hello everyone and welcome to this FEDSOC forum webinar. Today, September 2nd, 2026, we are delighted to host a conversation entitled, Vice DEI and CLE, navigating the constitutional limits of mandatory training. My name is Donald Blakemore and I'm an Associate Director of Practice Groups at the Federalist Society. As always, please note that all expressions of opinion are those of the experts on today's call, as the Federalist Society takes no position on particular legal or public policy issues. In the interest of time, I'll keep my introduction brief, but if you would like to know more about our panelists, you can express their, you can access their impressive full bios at FEDSOC.org. Today, we're, we are fortunate to have Professor Josh Blackman, Professor William Jacobson, and Daniel Lennington as our panelists with Professor Michael McGinnis serving as moderator. Professor McGinnis is Professor of Law and the J. Philip Johnson faculty fellow at the University of North Dakota School of Law, where he joined the faculty in 2010 and served as the Dean from 2019 to 2022. He chairs the Executive Committee for the Federalist Society's Practice Group on Professional Responsibility and Legal Education, and I will leave it there as a reminder to any attendees that are seeking CLE credit, we will be posting a CLE code in the chat box at some point during the presentation. At that time, a slide will appear noting that the CLE code has been posted. Please write this code down because you'll be required to provide it at the conclusion of the webinar when you complete your attendance reporting form. Written materials for this event were emailed to all registrants prior to the webinar, and a link to the written materials will be available shortly in the chat box. One last note throughout the panel, if you have any questions, we ask that you please submit them through the question and answer feature below so that we'll have access to them when we get to that portion of the webinar. We do ask that questions. They are both pertained to this discussion and with a question mark. With that, thank you for being with us today. I will turn things over to Professor McGuest to introduce our panelists and to start the conversation. Thank you very much, Emma, and greetings to everyone. Thank you for joining us for today's webinar. It's my honor to serve as the moderator with such a distinguished panel. Does the topic of our webinar, jurisdictions increasingly are requiring attorneys to complete CLE credits addressing bias, diversity, and inclusion in the legal profession. These requirements are often justified as tools to help lawyers reduce bias and ensure competent representation of clients from varied backgrounds. But these mandatory programs also raise significant and unsettled questions about how the profession may regulate bias in a manner consistent with federal law. When does a required course permissibly educate lawyers about bias, discriminatory conduct, barriers to access to justice, or cultural competency in legal practice? And when might mandatory training cross the line into compelled speech, viewpoint discrimination, or race or sex conscious practices that conflict with constitutional principles or civil rights statutes? So it helps explore these issues. It's my honor to now introduce our panelists. I'll introduce all three and then turn it over to them for their opening statements. And as Emma noted, if you have questions that you'd like to post at the end of the program, please include those in the Q&A function rather than the chat. I'll also have a few questions to post to our panelists as well. So we'll start with Professor Josh Blackman. He is a national thought leader on constitutional law and the United States Supreme Court. His work was quoted during two presidential impeachment trials. He has testified before Congress and advises federal and state lawmakers. He regularly appears on TV, including NBC, CBS, ABC Fox, and the BBC. He's also a frequent guest in the NPR and other syndicated radio programs. He's published commentaries in the New York Times, Wall Street Journal, Washington Post, and leading national publications. Since 2012, Josh has served as a professor at the South Texas College of Law at Houston. He holds the centennial chair of constitutional law. He's an adjunct fellow at the Professor Manhead Institute. He's written more than two dozen law of articles. I've been cited more than a thousand times. He was selected as jurist of the year by the Texas Journal of Law and Public Policy, received the inaugural MIS of the Third Originalism Award, and was awarded the inaugural Joseph Story Award. He was selected by Forest Magazine as for the 30 under 30 in law and policy. He's a president of the Harlem Institute and founded Fantasy Stodas, the Internet's premier Supreme Court Fantasy League, and he blogs at the ball conspiracy and post at Joshua and Blackman as well. Next, my pleasure to introduce Daniel Lenington. He serves as Deputy Council at the Wisconsin Institute for Liberty Law and Liberty, where he directs the equality under law or EUL project. Starting in early 2021, the EUL project is represented dozens of individuals in bait businesses nationwide, successfully advocating for race neutrality in both public and private programs. Before joining Will, Dan served as Assistant Deputy Attorney General in Wisconsin, and as an Assistant U.S. Attorney in Oklahoma, and he is a proud graduate of Hillsdale College. He can be reached at [email protected], and it's my pleasure to have him with us today. Last but not by no means least is Professor William Jacobson, who's a clinical professor of law and director of the securities law clinic. He's a 1981 graduate of Hamilton College, and in 1984 graduate of Harvard Law School, he was the senior editor of the Harvard International Law Journal, a director of litigation for the Harvard Prison Legal Assistance Project. Before he joined the Cornell Law Faculty in 2007, he had a successful, highly successful civil litigation and arbitration practice in Rhode Island, concentrating investment, employment, and business disputes in the securities industries, including many high profile cases reported in leading newspapers and magazines. He's argued cases in numerous federal and state courts, including the courts and appeals for the first fifth and sixth circuit, circuits, and the Rhode Islands Supreme Court. He has a national reputation as a leading practitioner in securities arbitration. He used treasurer as a former member of the executive committee and board of directors of the Public Investors Arbitration Bar Association, a professional organization of attorneys dedicated to protecting public investors. He is frequently quoted in national media on issues related to investment fraud and investor protection, and in the past the service is one of a small number of private practice attorneys who trained new mediators for the financial industry regulatory authority. He's also co-author of the securities arbitration desk reference with Thompson Reuters updated annually. And lastly, he is the founder and publisher of Legal Insurrection, a popular politics in law website. He's frequently quoted in the media on political and legal topics as authored many op-eds in major publications and appears in television and radio to discuss politics and the law. So with that, I'm going to turn it over to our three panelists for their opening remarks, and I'll begin with Professor Blackman. Thank you so much. The topic of this panel has been journeying for a while. Buy is DEI in Cili. So in the abstract, there's nothing wrong with lawyers who want to learn about DEI and anti-bias regimes. I think the problem creeps in when it becomes mandatory. And this appears, I think, in a couple different contexts. It appears in the context of certain bars, which mandate that their members attain a tense or a DEI training. In fact, I think many of you watching us, you have 135 people watching, right? They're all these people watching, trying to camera around. And many of you are probably here for the sole reason that you need this DEI credit to keep your law license. But it's not just attorneys. It's also law students. Some years ago, the American Bar Association basically adopted a rule that mandates cross-cultural competency and anti-racism training, basically. This is standard 206, we'll talk about a little bit more later. And the problem here goes even further. That 10 years ago, it's been a decade, the AB put forward, model rule 8.4G. And this was a rule which was designed to eliminate bias in a legal profession. And in all of these programs, both the mandatory DEI, Cili, standard 206 and 8.4G stem from the same root belief that the legal profession is not just about providing legal services and making sure lawyers are competent to their clients. That the legal profession has some higher duties, some higher obligation to improve our society that we're obligated to be aware of structural inequalities in our society, and that the legal apparatus has an obligation to eradicate these perceived biases in our profession. As I'll explain to you, my colleagues probably agree, this is wrong, wrong, wrong, wrong, wrong. Being a lawyer is a hard job. I'm a professor at Professor Jacobson teaches as well, Mike teaches as well, I'm sure Dan's done some silly work. We have a full sum duty to teach our students and our colleagues how to be ethical lawyers. And there are a lot of rules of ethics, you have to keep in mind, how to treat your client, how to maintain confidentialities, how to manage client funds. These are all essential. But what happens is that these institutions like the ABA invariably creep left. And they see the legal professions just another conduit to achieve their social mission. This also appears in the context what's called bar fare. Now your friend Michael's writing article on this, you've heard of law fair. This is bar fare that is using bar testimony proceedings to go out to people you don't like. So they're going after the Florida Attorney General, they're going after lawyers in D.C. in New York, who are basically engaged in sort of a jurisprudence. And they're saying that they're actually filing their oath. And all of what happens is when the legal profession becomes politicized, the need for the profession seems less important. And I got to focus on the ABA again because it's at the center, right? The ABA proposed model 8.4G a decade ago. Only a handful of states adopted it. And even once a Pennsylvania adopted it, it had to be re-writer to try to avoid a constitutional challenge. The ABA was once sort of the gold standard for these rules and people said, "You know what? We don't want this moralism creeping into profession. Let lawyers focus on being good lawyers." So at the ABA again, they adopted standard 206, which basically imposed a DEI requirement on law schools. Some law schools willingly wanted this. They said, "Yes, let's do this. We can mandate a professor's teacher's stuff." Other law schools said, "Well, this is, you know, we have to teach like towards, and you know, contracts, you have time for all this other stuff. This is not our job. Trump administration comes into office, and they basically threaten the ABA. We're a yanker accreditation." What's remarkable is that the council on legal jacation base said, "Let's suspend this rule and try to repeal it." And what do the ABA House of delegates do? They said, "No, no, no. We're going to keep it. You can't get rid of it," which is remarkable. They have no time at all. They're clueless. And so now the ABA might lose its accrediting power to the prime education. And so the option is, when you have these entities like the ABA, both a sectional legal jacation, the section that produced the model rules, when they sort of creep, and they depart from the traditional boundaries of what a legal regulatory agency does, they lose support from half the population. I think it's a very sad and unfortunate state of affairs. So ultimately, we're not going to have these entities anymore that maybe serve some value but don't. Now, the sort of fundamental problem is, these DEI regimes presume neutrality. This is one of my favorite traits of the left. They presume that their views are neutral and that we're the crazy ones. This is just how they view the world. So they assume, of course, who could oppose racism? Well, the problem is with the EIs, we all know. It basically assume that society is structurally inequitable. That's all based on race, there's no explanation for it. And it's a way to sort of remediate that. It's to engage in these overt racial preferences, racial quotas, and gender-flecting. We have to suppress speech that's deemed harmful, and we need to basically elevate speech that disparages us. So when you have these regimes that intrude on free speech, then true and religious liberty, the true and rights of associations, invariably, it will not work. So when I gave this similar talk, I think it was for the Missouri Bar, the Minnesota Bar some years ago, it was a very different world, sort of made it peak wilderness in 2022 or 23 or so. I think now we're sort of going down the slope, and you know, there are always slopes come back up. But I think it's very worthwhile that many of you know, getting credit, for your DEI credit, while you're attacking those credit. So I hope that the good bar counsel from your stage are watching this. Hi, my name is Josh. Good to talk to you. Your requirements ridiculous, but I'm going to talk about why they're bad and why they're unconstitutional, and I hope you all get your credit for the bar. Thank you so much, and I'll turn over to whoever's next. Thank you. Yeah, so I wanted to begin by just sort of outlining what is the typical mandate and what do these look like in practice? Like what do we see when we walk into the classroom of a DEI CLE? So about 13 states, including Rhode Island, where Bill is, have mandatory CLE requirements for different topics they label as diversity equity inclusion, or more recently elimination of bias, cultural competency. About 15 other states have optional rules where they allow you to take these sort of classes to meet your overall CLE requirements. We in Wisconsin just adopted this two years ago, and we at will, we oppose this, Justice Bradley wrote along dissent, explaining which is in my materials, which is really interesting evaluation of these these sorts of programs. But just to start out, the typical rule just has pretty much two definitions. They say cultural competency means a course designed to improve client communication and representation through the lens of knowledge and understanding of diverse populations. So that's what cultural competency is. And of course, that's not really a definition. It has all the bus of buzzwords. It obviously means racial diversity. They never use the word race. Typically they don't use the word race in these these sorts of definitions because they want to get around that. Cultural competency has always been a buzz word. We have a client will who was fired for not being culturally competent in a school district primarily because she was the person who was white and her colleagues were not white. And so she scored the lowest on her cultural competency score by virtue of being a white woman. So cultural competency is typically is a substitute for race discrimination. And then reduction of bias again, you know, they'll say things like educated attorneys to identify and reduce the legal profession and the legal systems biases against persons because of but not limited to and then listing many, many different categories, race, color, creed, national origin, veteran status, sexuality, those sorts of things. And to remove barriers that what you won't find in these apart from these lofty definitions, very generic definitions, you'll find no quality controls. No bar will actually put any quality controls in the rule. They'll never have a model curriculum. They'll never have a model syllabus. There will be no specific definitions, no measurable standards, no way to measure whether this actually works. And phrases like reduction of bias are not involved are not actually defining a way to eliminate stereotypes. Like a stereotype like the Supreme Court said in SFFA, where Harvard said a black student can bring something to the table that a white person cannot. That is a stereotype that is not sought to be eliminated by these rules. And also, I have in my materials, there's a growing body of evidence showing that none of this actually works. DEI training has not been proven an effective means and fields where it's been long-standing practice. Mandatory DEI training has been shown to actually increase bias in many situations. And studies show that there's no evidence that CLE's in particular actually improve legal profession. Present CLE excluded here. So what's the typical content that we see though? We've evaluated a number of these in Wisconsin and elsewhere. Some of our attorneys have attended some of them. There's one in particular that I'll quote from at the University of Wisconsin that happened a year and a half ago. They typically start off with everybody has racial bias. We're all on the same boat. But it shortly devolves into the biggest problem are the whites. Quote only white people can be racist. We've heard that in the CLE, all whites are infected with quote whiteness, white guilt, denial, fear and privilege. Whites are all advantaged and all privileged. Quote based on the white color of your skin. Another CLE leader said white people quote fear people of color and what would happen if they gained control. This was all said in a mandatory CLE at UW Wisconsin. What does this have to do with the legal profession? I'm not quite sure. It's mostly social engineering, social grievance talk. What they attack in these CLEs is non-discrimination. The biggest target of these CLEs is the color blind society. Probably the worst phrase you could utter in front of these people. Aspirations for non-discrimination are all racist. It's a racist to oppose affirmative action is another common thing you'll hear in these CLEs. Racist structures, as Josh said, obviously they pervade society and this is all evidenced by racial disparities. Every time you see racial disparity, it's proof that discrimination exists and racism pervades our society. Certain minorities, mostly Blacks, Hispanics and Native Americans are the victims, Asians and whites are not victims. Manitory DEI CLE for the most part, they preach the gospel of American systemic racism, which sounds more like a hoax than an actual legal theory or a social theory. They say that all disparities are caused by racism, racism and all disparities. Your clients, your results, your employees, the people who you serve and the results you get in court, the people you hire in your law firm or your law school, you've got to root out. It's your job as the lawyer. You have to root out those disparities because that's the way you fix the race discrimination and it all goes back to rebalancing, a racial rebalancing and this is your duty as an attorney and employer officer of the court. That's what we see when we take a look at these CLEs, they want you to take action to root out discrimination, which means basically to end non-discrimination and the colorblind society, and we'll discuss in a little bit. These are not only antithetical to American values and Western moral tradition, but they just are in complete conflict with federal state law and the U.S. Constitution. Thank you, Dan. Professor Jacobson. Thank you for having me, and I want to emphasize a lot of the points that have been made and make a couple of others, sending my greetings from the State of Rhode Island. Until about three years ago, known as the State of Rhode Island and Providence Plantations, but the name of the state was changed as part of the Mad Dash, DEI Dash post-George Floyd, because even though historically, plantations did not have to do with slavery in Rhode Island, it meant something very different. There was a mass virtue signaling push, which also came to be in our CLE rules. So in 2023, I believe it was at the instigation of the Rhode Island Bar DEI Committee, who knows what they actually do, but the Rhode Island Supreme Court issued a proposal and opened it for comment to change our CLE rules, which are regulated by the Supreme Court in Rhode Island, and to require of the 10 mandatory credits that one of them be in diversity, equity, and inclusion. I filed an opposition to it on my own behalf, and also on behalf of the Equal Protection Project. So legal insurrection is not just a political website, it's also a foundation, and one of our key projects is the Equal Protection Project, which brings legal challenges to discrimination done in the name of DEI. And the reason that we opposed it, that I opposed it, is one, the mandatory nature of it. It created a reasonable appearance that the Supreme Court, and therefore the court system, was taking sides in a hotly contested political and legal issue. The politics were essentially what you would see on any college campus, which is critical race theory, DEI, whatever you want to call it. Essentially, Ibram Kendi's formulation that attributes any disparate outcome to racism and requires people to be actively anti-racist. So in his formulation, which became something of a religion on campuses for three to four years, it's died down a little, failing to be anti-racist made you racist. And so, and in fact, that was the Cornell formulation in July of 2020, Cornell President initiated an anti-racism initiative, and the suggested reading was Ibram Kendi's book, How to Be an Anti-racist. It's been a complete disaster, but the school's clinging to it, bitter clingers, although they've changed the name, they now call it inclusion and belonging instead of diversity, equity, and inclusion. So anyway, we took the position that, you know, there were existing at the time in 2023, DEI style CLE programs, which people could take voluntarily and get credit. We weren't challenged in that, but it was the mandatory nature. And particularly, the way the proposed amendment was worded, certainly suggested a Kendi in sort of outlook. It was DEI shall include programs that recognize the diversity of society and teach attorneys to effectively serve and have regard for multilingual, multiracial, multireligious, and multi-gender society while focusing on equity. And that's a key term, while focusing on equity by highlighting equal opportunity and outcomes for all. So that is very much a radicalized DEI perspective, a Kendi in perspective, which was now being incorporated into the rules of the Rhode Island Supreme Court as to what qualifies as a DEI credit and DEI program. So we oppose that as being one hotly contested, as was pointed out, there's no evidence that any of this programming actually works and makes things better. And there's plenty of evidence that it makes things worse. And I think we all know from our own lived experiences that forcing people to endure this doesn't actually improve anything. It also was, in our view, contrary to law, that this focus on equity and outcomes was contrary to the United States, that federal law, contrary to Rhode Island law, which for the purpose of discrimination essentially mirrors federal law. And therefore, rather than focusing on the rights of individuals, which is what our federal and state constitutions are about, this is focusing on group outcomes. And so our position was there's no evidence it works. It's hotly contested because it's essentially Kafka trapping that under Kendi's formulation, your denial of being racist is the proof of your racism. And it's contrary to law. So why are we doing this? And what good will come out of it? Well, obviously I wrote that lengthy letter to the Supreme Court, not exactly expecting it to succeed and it didn't succeed. They did pass the rule. And so now under this broad outcome oriented definition of what is DEI, we are required to take one of our ten credits for DEI. In practice, I'm not really sure anybody actually follows the Supreme Court's formulation of what DEI is. I just went to the Rhode Island Bar Association annual meeting to get all my credits. And I know I signed up for a couple of things that would DEI credits that really had nothing to do with any of these topics, any race or anything, more emotional oriented things like that. And they called them DEI. So I'm not really sure what it means. But what we did do at equal protection project is we gathered up the three conservative lawyers in Rhode Island, including me. And we formed our own DEI CLE program. And we got it approved. We said, look, if you're going to force us to do this, we will give people an out. We're not going to force them to endure a Kendi in sort of hour in their life. And so we created a DEI CLE program. We got it approved by the Rhode Island Bar Association. So we could have done it outside, but really to get people to sign up, you need to go through the Bar Association. It was a little bit of back and forth. And they were very helpful. I don't really have any criticisms, but they were very concerned that this might turn into a political sort of discussion, attacking DEI. And so we had to massage it and work through it very well attended, shockingly well attended. I don't remember the precise number, but I think we had 50 plus people, which for Rhode Island CLE is really good. And that's what we did. So what you have now is a defined DEI credit definition in the rules that nobody actually seems to follow. This was all virtue signaling. This is all the remnants of post George Floyd purges in 2020 and may have rushed for DEI that captured the campuses. And of course, what happens on campuses never stays on campuses. So I'm not sure what they're achieving by this, but we did object to it. I think it's improper. I think it should not have been done. I don't think anybody actually takes it seriously, but it's just put in your hour and do it. But I think it is pernicious. I think it has encouraged perhaps the various DEI committees around the state to push harder and further to prove that they are more virtuous than everybody else. And so that's where we are in Rhode Island. We opposed it. Couldn't stop it. So we're doing it on our own. And I think people welcome a neutral sort of topic. And the topic of our CLE was is DEI still legal after students for fair admissions. And so that's where we are in the state of Rhode Island. For greenown is the state of Rhode Island and Providence plantations. Thank you, Professor Jake. So and thank you all of you for those excellent opening remarks. Very informative and very thoughtful. So I'm going to start by posing a couple of questions just for basically put them out there for whoever would like to respond to it. This idea of training, the idea that your CLE is supposed to be providing you some form of structured information that relates to the practice of law, that the idea is it's supposed to be We maintain minimum confidence. as you can send you through your legal career. This idea of consto these as trainings, though, is that a disinterested additional thoughts? So you've probably already touched on this a little bit in your opening thoughts, but how this pertains to if you're compelled to be present for this, for a presentation which a particular form of instruction is being given about what these concepts mean and their contested concepts, but also kind of sometimes touch on deeply how moral convictions about what the equal treatment and those things. How does that, is there, what are the some of the best arguments that you can make that that is perhaps a first amendment violation when it's mandated by the by a state Supreme Court? - I'll start here. I think one of the most pernicious aspects of DEI programming is that it's not just sitting here and listening, they're often what they call interactive and become struggle sessions. We have to be able to admit all the times that you've been in adequately attuned to racial inequality, you have to admit all the times you've engaged in microaggressions just to basically apologize and genuinely reflect. Many of these classes actually separate people by race and they have the affinity groups and the white people and they have to just see who's oppressed and who's an oppressor. They also take again as a given that this is truth, that this is gospel, right? There are rules, you cannot steal client funds. No one disagreed with that, right? You have to maintain client confidentialities. That's a rule, that's an actual premise of law that people don't disagree with. Now maybe at the margins, there might be exceptions when you have to disclose things, abuse, commission of crime and so on, but we agree. The idea that we live in a structurally racist society and William, quote, all the quotes from Ibrim Kendi and the government saying this is a truth, it's basically thought control. And if you disagree with it and you're fused to participate in it, you are then denied credit by the state or in my law school context. If you take these classes and say this is all nonsense, I'm not going to affirm these things are true, you get a bad grade in a class. I do think this is a form of compelled speech and so a form of compelled indoctrination. Oh, this is also in the medical profession that group, do you know harm to some wonderful work? Well, they made doctors basically instead of learning how to save people's lives or learning about why we're all racist and just have to affirm these things to be a simple physician. There are serious common issues here that in the wake of the George Floyd madness, people just sort of waltz passed. And only now some sanity is prevailing. I mean, you know, we just changed lake on tarot, like America, maybe we can change the save our island back. It's old game, but I don't know, there's hope. Any comments from Dan or Professor Jacobson on that? Yeah, I would just say like as far as these mandates, it's not, I don't think that the mandate in my view is the legal problem because the language is typically so broad and people can interpret how they want and they can and Bill can do his own DEI class and, you know, I teach a class at UW law school, which is certified as a DEI class. We, it is certainly not the traditional type of DEI class that you would imagine. So people, the mandate, I don't think is necessarily the problem. I think the legal issue is what is taught and who is teaching? Those are the two things that I think are the most important. So, so for example, in the employer side, there are, there are continuing education requirements that are DEI requirements that are mandated by like say employers, like large law firms or legal employers, and these may require employees to like affirm or oppose certain viewpoints on white supremacy, anti-racism, colorblindness. They'll do things like mandatory privilege walks where you have to actually affirmatively move up or down based on your privilege. They force employees to endure harassing statements about whites or Asians and if this is a private employer requiring this, you've got possible race discrimination, racial harassment claims under Title VII or Section 1981. Also, there's a growing body of religious discrimination law under Title VII since Groff versus DeJoy, the Supreme Court case that put the burden on employers to justify why they aren't giving religious exemptions to employees. And so that's sort of like the private. And so if there's public employers that are required, it's like the state agencies or federal agencies, you've definitely got a compelled speech issue under the First Amendment. You've got claims under for race discrimination under the 14th Amendment or Section 1983. You've got claims for religious discrimination against a public employer. And we should, you know, DEF always remember SFFA's twin commands, race can never be used as a negative or a stereotype. So those are independent rules apart from the traditional strict scrutiny standard under SFFA. So when the government is forcing you to endure a stereotype, I think the government employer has SFFA problems. There's a good recent case out of the eighth circuit called Henderson versus Springfield School District, which goes through, it's an on-bong decision. It goes through in detail the type of sort of harassing demeaning stereotypical trainings that can be forced upon public employees and how that might violate constitutional standards. On the issue of these just bar associations, you know, mandating CLEs, you know, that's, I think a compelled speech issue too. If your bar is forcing you to, number one, go to these things that require you to say something that you disagree with. So compelled speech, or that you are forced to associate with the bar, the bar itself, which is saying these things you don't agree with. So these are two types of claims common in litigation against bars, none of which have really been super successful yet, but we're working on it. First, the most successful type of claim is the Keller, the Keller type claim where a bar member sues the state bar claiming that these programs are not germane to the regulation of the legal profession. And so their dues, they're actually money you give to the par can't be used on these DEI CLEs. So we pursued, we sued the Wisconsin State Bar alleging these claims that, in our case, it's called services, Wisconsin State Bar. We argued that race discrimination is never germane. So these DEI, when you, when are forcing someone to do something illegal or say something illegal, you're advocating for illegal race discrimination, that's not germane. That is not something that your dues should be going to pay for. The bar, state bar Wisconsin settled with us. And they ended a ton of discriminatory DEI programs. We got them to change their definition of diversity to remove race and to insert words pertaining to individuals and individual treatments. The second type claim, which is the claim that we're going to have to hopefully get to the US Supreme Court, is the JNS claim. So JNS is the case, it says you can't be forced to join a union and support a union under the first amendment that's compelled association. JNS has never been applied to state bars in the way that we really think it should be. Basically saying that if I have to be the member of the bar, you can't make me, if I don't support everything the bar is doing, whether it's germane or not germane, whether they're whatever they're doing, whatever they're doing, these DEI CLEs, I disagree with it, why do I have to join that bar that you're saying is put on by the state bar of Wisconsin, which I'm a member. So you're basically saying that I support that sort of speech. There are a couple cases pending just on Monday, the 10th Circuit ruled against the plaintiff, in the case against the Utah State Bar, called Pomeroy, that's a Goldwater case, and Goldwater has another case in Oklahoma called Shell, which is I think in the district court. But these cases have, like, over a few years, they go up to the US Supreme Court answer, and I think Justice Thomas is the only one who's written a respecting denial in these. But the idea is that if we're going to force lawyers to join bar, are they giving up their first amendment rights? Is this compelled association? And I think that's something that, you know, when the public interest community are really need to start focusing on to get rid of the mandatory state bar completely, and to avoid all of this association with speech that you disagree with. - Thank you, Dan. Professor Jake, so in any comments for a removed audience, go ahead. - The only thing I'll add to that is this is most pernicious and damaging in the employment context, because for all of us, we can go to our one hour CLE. For the most part, I don't think anybody's forced to express a viewpoint. You just have to sit there and, you know, check the box when it pops up on the screen to make sure you're there. But in the employment context, your job is online, okay? And that's where I think we've seen a lot of the worst abuses, the entire consultant class, which provided this programming. And so I think that has subsided. a lot, at least some major corporations have announced they're either eliminating or scaling that back, but there was an entire industry which grew up around this that probably still exists, and that was the worst of it all. The HR department were the worst perpetrators of this repression. Thank you. That's a very helpful insightful all three of you. One last quick question, before we go to audience Q&A, that occurred to me. There's currently in the context of legal education of several of us who work at law schools, a kind of emergency regarding ABA standard 206 involving Josh reference that in his opening remarks involving diversity, mandates for law schools as part of their accreditation standards, and it's currently suspended by the ABA council, so it's not currently an effect, and they recommended repeal, or we're going to repeal it, send it to the House of delegates, the House of delegates back just last month at August, recommended against repeal, and coming up on the matter of less than a week, the ABA council is going to be revisiting that and voting on whether to repeal standard 206, which requires concrete action, and cause a lot of concern as far as whether that action is that it's mandating for reaccreditation is something that would be contrary to existing Supreme Court law in the late of Harvard versus UNC. Anyway, with that said, any comments in terms of how you think that the ABA council might go, whether that will have an impact in terms of this conversation or a ripple effect, if they do repeal it on other, the CLE piece or the other ways in which mandates relating to DEI are being undertaken. Any thoughts from any of the panelists on that? I mean, even if the ABA repeals are recommendation, law schools are not going to change their practice, they want to do this stuff. So I suppose it eliminates the sort of compulsion by the creditor. I suppose at state law schools might be intervention by state legislatures, but until you sort of address the root cause that people in legal profession believe that we need to teach this and not much will change, indeed, if the ABA loses a crediting power, it won't even matter anymore. I think the more useful approach, and I was a question in the chat about this is to demonstrate that these standards actually harmful. And I think Dan will talk this more than I can, but I've never seen any study showing this actually helps to eliminate racism. In fact, up until the opposite intended effect becomes so exaggerated by that, they basically tune out, they refuse to even consider that this stuff is valuable. Force feeding this sort of blame game on people that they are to blame for the evilness just sort of closes the mind hard as the heart, if you will. And I think if you perhaps demonstrate that there's other ways of actually improving opportunist people, rather than this DEI madness, then maybe there's hope, but some of the people believe it's useful, they'll just sort of quietly creep in and just call it, oh, we're not DEI, we're just equal opportunity and we're advancing opportunity in all these other acronyms. Yeah, it's good. Yeah, good, Dan. I mean, the rule is encouraging lawlessness. I mean, the rule says, I mean, provide full opportunities. Okay, well, we all agree with that. Full opportunities, students and teachers and faculty and staff to members of underrepresented groups, particularly racial and ethnic minorities. What is that other than telling law schools, you ought to hire more black professors because you want to hire more black professors because they're black, you ought to admit more Hispanic students because they are Hispanic. That's that's lawlessness. And so the ABA can find the ABA can do this. I mean, they're subject to title six, they receive federal money. We submitted a title six complaint against ABA, hoping the federal government would investigate that organization, which is a recipient of federal financial assistance, but also these law schools absorb the standard whether they're mandated or not, whether they want to do it, they just do it by themselves, but they are federal financial assistance recipients. And the federal government can investigate them and people can bring their own lawsuits based on title six that you're accepting federal money and you are discriminating. You are discriminating explicitly by helping underrepresented groups based on race and ethnicity because of their race and ethnicity. And so at some point, you know, the Trump administration's battle was Harvard and try to take away their money. At some point, some universities going to lose their meal tickets. And that's going to be where the rubber meets the road. Thank you, Dan. Hey, last thoughts, Professor Jacobs, before I go to audits, you and I, okay? All right, let's take a look here. I think a couple of these have already been touched on in the course of the conversation. So I'm going to take a look to, why was different? What about, what is your opinion? Does anyone have an opinion from our panel on the efficacy of non-civil rights claims in fighting the EICLE, such as negligent misrepresentation or consumer protection deception statutes or anything else of that kind? Any other theories that have been thought of, tried, considered? Not sure. Sorry. That's okay. Any thoughts on that, any? I guess we've talked about the title, title seven, with regard to workplace. Yeah, I can only sort of think of title and civil rights, you know, about discrimination based on race or religion or ethnicity, national origin. So, you know, as far as torts are concerned, I think that probably be a stretch to seek a tort claim against someone. But I guess if the racial harassment is pervasive enough, you may encounter that. That's a question. I have any thoughts on Pacific Legal Foundations pending cert petition challenging California's mandatory implicit bias training for all continuing medical education courses. So looking to another professional, they have you have a familiarity in that area? We're familiar with those, but that matter. Is this part of the integrated California bars, is that part of what the, I think the question I'd be asking? I think it's for medical. So it's part of the medical, right? It's okay, but if we're not familiar with that, that's totally okay. All right. Just a related point and this sort of the question about challenging the different, some years ago, where there was a challenge, the text in a bar, like friend Josh Hammer was on the plaintiffs in that case. And the fifth circuit basically didn't cut off the text as bar entirely. They sort of said that the text as bar cannot mandate any sort of DEI-related activity. And that might be sort of a middle ground, unless the court revisits the Keller case. In other words, if they want to do this sort of DEI stuff, they can do as voluntary, but not as part of the mandatory approach, that would cut against the sort of mandatory credits that Rhode Island other states have implemented. All right. Anything else any other comments about before I move to the next question? They've very touched on Janna. So I have a question that says, do you think the US Supreme Court will remove mandatory state bars differently akin to Janice with their adoption of coercive DEI CLEs and other political views for their attorneys? But it may have already touched on that and the comments on Janice. Yeah, I think it's just a matter of time. I mean, it's like how many times I don't know the exact number of cert petitions, but there's been a lot of cert petitions in the last 10 years or so going at mandatory state bars. If I had to guess, I think there's probably some fear and trepidation by the US Supreme Court and you know, they're always thinking like what would what would happen? What would be the consequences of removing mandatory state bars? So you know, there there are integrated bars and there are the idea that like you can separate the regulation of lawyers as lawyers like you know, getting rid of bad lawyers or supervision of lawyers or ethical rules of lawyers or investigations and or passing the bar exam. That sort of thing is different than these bar associations which do all sorts of stuff like in Wisconsin, our bar lobbies, the legislature to change the law. Our bar rights op-eds and articles and advocates for positions are our runs these DEI CLEs. And so the question I think is, you know, how are we going to separate between some of these fluffy thing state bars do? Like putting out tweets about eating rights or having mental health breaks during your day, which some bars do if you follow them on X versus the nuts in bolts of actually regulating the legal profession, like making sure people have licenses to practice law, making sure people keep their client funds segregated from their law firm funds, making sure they abide by the ethical rules and there's investigations. Those are sort of different things. So I'm eventually the Supreme Court, I hope they would take a case and basically get rid of Keller and apply Janice. But I think there's probably some trepidation about what happens to the bars and the regulation of attorneys in America. I have another question that's on here, but any thoughts on a legal theory, challenging mandatory courses, premise on a right against, quote, compelled listening, end quote. I guess test on that only compelled speech, but maybe it's a weaker argument, or at least one that hasn't been yet supported by existing law, but saying perhaps that the court is taking a position on a particular item and you're compelled to be in order to continue in your licensure, if you have to get this credit, if they compelled you to listen to that. Is that something that solved by simply allowing flexibility as apparently the efforts have been done to do, including today, right to have these things qualify for credit, but be open to a variety of viewpoints on the subject matter that's been discussed. Any comments on response to the question that was posed by the audience member on that in addition to what's already been shared? Yeah, I don't. I think the bigger problem is the viewpoint discrimination. For example, any state which requires DEI's credit were to then say this session, or listen to right now, does not qualify, I think that would be a perform review point discrimination. There's no, I think there's an abstract that you can't listen to think. I think just listening is okay, but I think when they dictate the contents, that's where it sort of crosses the line. Yeah, the only compelled listening, I can think of would be the idea of racial harassment. So that could be a title seven problem in the employment context, a racial hostile workplace created by a continued education requirement, or if required by the state, that the state is racially harassing an individual. Those would be obviously tough cases to make in that context, but I think it's possible. Another question this may have been alluded to, but just to maybe crystallize it, is there any pending litigation? I think Dana talked about some of the successful litigation that had been resolved, but is there any pending litigation challenging the constitutionality of mandatory DEI CLE requirements? This should do what's been mentioned already. I'm not sure. Okay. All right. Let's see. Let's see if there's another one more. I think we have time for one more. If I can look in the chat as well, in addition to the Q&A to see if there's something there. There's a question about the ABA, which might be worth talking about as well. Yes, thank you. The Trump administration efforts with the ABA. Thank you, Professor Black. I'll take a stab there. So it happens here is kind of multi-pronged. A number of states, including Texas, Florida, Ohio, and others, have said that the ABA is no longer the sole of credit in the state, but those states haven't exactly said what will replace it. For example, Texas said, "Well, if you're already ABA creditable, treat you as a credit invasive for the foreseeable future." So at least in Texas, why go to school? Schools are still keeping their ABA creditation. The second prong is a federal level. In order to see what are called title four loans, you have to be an accredited law school. Virtually every law school in the country, is there any accredited not just through the ABA, but through some sort of regional creditor through the university? Mine is not. I teach it independent law schools. We actually have our own separate accreditation part from the ABA. The Trump administration said that the ABA's renewal, which is up in 26, is probably not going to happen. They publish a very lengthy report explaining why DEI is just one of the many reasons, but also there's this close gild relationship between the ABA and the council legal education, and then they could perhaps have heard of this by separating them entirely, but the ABA wants control over the regulation of lawyers. So the endgame, right? I think the last issue after we just spin off the council of accreditation as a totally separate entity, and that might not be a bad idea, but that may not be enough. The Trump administration might just say this is the end while other creditors or just have no credit at all. We can just have the regional creditors do law school and don't give the gild the ABA to sort of special power. I wrote a piece in Civitas the other day called the end is near. This will be kind of the moral death blow for the ABA, because that point doesn't only do anything of use, right? This is there major things sort of shape the law. So look, they lose accreditation. Their model rules are not adopted like 8.4g. Their attendance and registration numbers and membership use a plummet that these lavish annual meetings that accomplish absolutely nothing. What the heck is the point of the ABA in five or 10 years? I don't even know. And it makes me sort of sad because at one point, almost half the lawyers in the country, ABA members, this was a very well regarded group. And they sort of just fixated that we need to sort of advance a liberal social agenda. We need to oppose, we need to favor abortion, oppose the death penalty, support terrorists, or Guantanamo Bay, right? They pick every issue. And eventually the check comes due. And I think they only have themselves to blame for this. And these other talks on that very very well said. Okay. See, I think we're one minute left to see if there's a quick question I haven't picked up that we can make opposing thoughts, I guess, in addition to any particular question. Any last comments before we wind it down? I'll just address a question that was in the chat since I can't respond to people in the chat. My Rhode Island CLE program is not available to the best of my knowledge. It was not recorded. They don't post them on the internet. And it's not on the list of on demand CLE programs. So if you didn't attend, there's no way to know what we said. Thank you, Professor. Okay. Thank you. Appreciate your great presentations at each of you did. And great awful responses. I find myself in great agreement with each of you. So thank you. Have a bit of deed as well of a law school. Well, thank you all so much. On behalf of the Federal Society, I just want to thank our experts for the benefit of their valuable time and for your expertise today. I also want to thank you, our audience for joining and participating for anyone seeking CLE credit. This is very important. The attendance reporting form has been linked in the chat box. You should see it below. Please complete this form now if you can. 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