We hope to have our own report on today’s Minnesota Supreme Court hearing in the case of Elliot Rothenberg courtesy of my colleague Peter Swanson, who attended the hearing. In the meantime, however, the Minneapolis Star Tribune has posted Mark Brunswick’s report on the hearing today and Brunswick’s report suggests that the Court may well interpret its elimination-of-bias education requirement for attorneys to avoid the imposition of an orthodoxy: “State high court hears lawyer’s challenge to anti-bias class requirement.” Because the Star Tribune removes items from its Web site after 14 days, we’re taking the liberty of pasting in Brunswick’s story below:
“A Minneapolis attorney who is challenging the state’s requirements that all lawyers take classes on the elimination of bias faced the Minnesota Supreme Court on Monday, contending that the classes are ‘fundamentally flawed’ and have become ‘a device of ideology.’ Elliot Rothenberg could have his license suspended for failing to complete the antibias classes.
“He has said the classes, which grew out of a state Supreme Court task force finding that racial bias permeated the court system, violate his right to free speech. The state Board of Continuing Legal Education, which monitors and accredits the classes, says there are 600 accredited antibias classes and has contended that they are nonideological. Rothenberg has objected to several of the classes, including ones that he said encourage opposition to the death penalty and classes about Islam that he said promote one religion over another. The rules on continuing legal education require attorneys licensed to practice law in Minnesota to complete two hours of classes on elimination of bias in every three-year reporting period.
“Arguing in favor of the classes, Ruth Flynn, an assistant Minnesota attorney general, said the classes are instructive, even to lawyers who may object to their content. ‘Maybe the ones we don’t like are the ones we should attend,’ she told the justices. Justices were pointed in their questioning of Rothenberg, who called the classes ‘a Draconian remedy’ that ‘represents a radical assault on freedom of speech.’
“Justice Paul Anderson, one of the most vocal supporters of bias studies in the court system, asked Rothenberg whether he could not see the benefit of a multitude of classes. ‘One shoe does not fit all,’ Anderson said. Justice Helen Meyer asked Rothenberg whether the goal of eliminating offending classes might also restrict freedom of speech.
“‘You want to narrow the courses offered. Then we run into the other side. That goal is too restrictive,’ she said. Flynn told the justices that the court must apply a balancing of the interests of individual attorneys with the benefits of improving a court system.
“‘Can the state compel a person what to think?’ asked Justice Alan Page. ‘To have an ideology that the state espouses?’ Said Flynn: ‘It’s a concept of education rather than persuasion.’ The court took the matter under advisement. There is no indication of when the justices will rule. Until then, Rothenberg is permitted to continue practicing. If the court ruled against him, Rothenberg could take the antibias classes and continue to practice. He declined to say Monday whether he would do that.”
It may not be out of place at this point to add the following from my own personal experience. In June 2001 I organized and taught in an accredited elimination-of-bias program entitled “Elimination of bias: What bias?” The course is referred to in Brunswick’s Star Tribune story on the Rothenberg case this past Friday.
Because the June 2001 course was devoted to an extensive critique of the premise and substance of the elimination-of-bias requirement, at my request the course sponsors invited a representative of the Minnesota Supreme Court to participate in the program and provide the Court’s perpspective on the requirement (which was adopted by, and is ultimately the responsibility of, the Court itself). Justice Anderson accepted the invitation to appear on behalf of the Court and fielded many skeptical questions from attending attorneys.
We have received approval to give the course again and plan to do so in June 2004. We again invited Justice Anderson to participate in the program; he declined. We then wrote the Chief Justice of the Court asking for the participation of any member of the Court to appear on its behalf. After two letters and several phone calls, the Chief Justice advised me that no member of the Court was willing to do so. I infer that when it comes to the elimination-of-bias requirement, the Court prefers to ask the questions rather than answer them.
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