Doctors Appeal Federal Ruling over California’s Mandatory ‘Implicit Bias’ Medical Ed Classes

Despite an adverse court ruling, some California doctors are continuing to fight a noxious state law that requires continuing medical education classes to include implicit bias lessons that tells physicians they are closet racists.

They are appealing a federal judge’s ruling that dismissed their lawsuit claiming that being forced to include implicit bias lessons in CME classes they teach is coerced speech in violation of the First Amendment.  But the judge who dismissed the case accepted California’s argument that the CME classes are government speech which does not enjoy First Amendment protection. In other words the doctors  who teach the class are vessels of the state.

The appeal was filed this August in the United States Court of Appeals for the Ninth Circuit by lawyers with the Pacific Legal Foundation, a Sacramento-based non-profit law firm with libertarian leanings. It argues that CME classes are clearly private speech that should be protected and warns that if the judge’s decision is allowed to stand the “ruling would swallow the compelled speech and government-employee speech doctrines whole, as any such right to [protected] expression could simply be recast as government speech. “

But attorney Joshua Thompson, Pacific Legal Foundation’s Director of Equality and Opportunity Litigation, told the California Globe that he is optimistic the appeal will succeed.“Doctors who create and deliver CMEs are engaged in private speech,” he emailed. “There is minimal government involvement, and the government has no editorial control over the content of the courses. I expect the Ninth Circuit to reverse the motion to dismiss, and I expect our clients to prevail on the merits in the court below.”

In 2019, California enacted Assembly Bill 241 sponsored by then-Assemblywoman Sydney Kamlager-Dove (D-Los Angeles), requiring that starting in 2022 teachers of continuing medical education for doctors would include “implicit bias” training–namely telling doctors they are bigoted whether they realize it or not. Kamlager-Dove is now serving as the U.S. representative for California’s 37th congressional district.

Under the law, all  CME courses are required to tell doctors “how implicit bias affects perceptions and treatment decisions of physicians and surgeons, leading to disparities in health outcomes” and include “strategies to address” this supposed subconscious bias.

Do No Harm, a group which fights wokeness in medicine, challenged the law in a lawsuit filed in August 2023 in the United States District Court for the Central District of California. Do No Harms says at least one of its members in California teaches CME courses but objects to the implicit bias content.

The other plaintiffs were Azadeh Khatibi, an Iranian immigrant, who is now an ophthalmologist in Los Angeles, and Marilyn Singleton, a black anesthesiologist who found the notion that white doctors are racists who need to be disabused of their prejudices obnoxious and untrue.

As Singleton wrote for Fox News, “I don’t care that I’m not the target. This [requirement] still represents the kind of racist thinking that was starting to fade 50 years ago. I don’t want to be taught this evil, nor do I want to teach it to others.”

“The law’s authors and advocates think the new racism is justified by health disparities between White and Black patients. These things are real, yet blaming bias for health disparities is the easy way out, since it ignores the host of cultural, economic and other factors that influence patient health.”

She added that “if implicit bias were real, you’d think I would have seen it in 50 years of medical practice. I haven’t, neither in how my peers have treated me nor in how they’ve treated patients of different races. I certainly have never seen a White colleague provide worse care to a Black patient.”

Sadly, Dr. Singleton passed away in June. But Dr. Khatibi remains a plaintiff.

The appeal says that, “While Dr. Khatibi would like to continue teaching CMEs, the implicit bias requirement of [the law] is problematic for her. She does not want to include discussion of implicit bias in her courses. It is not relevant to her topics, and it would eat away at the limited time she could use to discuss topics that are relevant. This is especially true given the lack of evidentiary support for implicit bias trainings.”

The defendants in the case are officials of the Medical Board of California, the state agency which licenses doctors and administers the continuing medical education classes. California doctors must take  50 hours of CME classes every two years in order to renew their licenses.

In enacting the CME  law the California Legislature found that doctors’ supposed biases contribute to racial health disparities.  But Stanley Goldfarb, a retired University of Pennsylvania medical school professor and founder of Do No Harm, told the California Globe last year that the whole notion of racist doctors is a pernicious myth.

“There is no good evidence that there is bias, It is a dangerous concept. It’s another effort to inject divisiveness into the way that Americans interact with each other. That undermines the trust that physicians need to have with patients.”

Along the same lines the physician’s lawsuit argued that there is no evidence that doctors are bigots and forcing doctors who teach CME courses that implicit bias causes health disparities is unconstitutional government coercion.

“Rather than respect the freedom and judgment of continuing medical education instructors to choose which topics to teach, California law now requires the Medical Board of California to enforce the mandate that all continuing medical education courses include discussion of implicit bias,” the complaint says.  “Under the First Amendment to the United States Constitution, the government cannot compel speakers to engage in discussions on subjects they prefer to remain silent about. Likewise, the government cannot condition a speaker’s ability to offer courses for credit on the requirement that she espouse the government’s favored view on a controversial topic. This case seeks to vindicate those important constitutional rights.”

This August, United States District Court Judge for the Central District of California Monica Ramirez Almadani dismissed the doctors lawsuit on the grounds that the CME courses are government speech–not private speech that enjoys First Amendment protections– because they were created by the Legislature to meet licensing requirements for doctors. “Plaintiffs voluntarily teach CME courses for credits created and approved by the State, “ she wrote. “ They are free to teach medical courses in their private capacity in California or elsewhere, but when they are communicating medical knowledge required by the Board to satisfy this State’s licensing requirements, they are conveying what the California Legislature has deemed essential for the continued practice of medicine. “

But in its appeal the Pacific Legal Foundation noted that doctors, not the state, create the actual CME course content so it should be considered private speech.  “All courses taught and organized by Dr. Khatibi were approved by authorized CME providers—not the government—and other than the discussion required by [the law] the content of each course “was created and compiled by her without any supervision, approval, control, or input by any government official.”

The appeal says case law is on their side because “under a straightforward application of the Supreme Court’s and this Court’s government speech precedents, CMEs are plainly not government speech. They are courses given by private individuals, in their private capacity, to doctors and other medical professionals to advance their professional competency. There is minimal government involvement in CME instruction. The government’s role in requiring CMEs is regulatory, not expressive.”

The appeal warns that free speech would suffer if the judge’s ruling dismissing the case is allowed to stand.  “The district court’s judgment that such private courses constitute speech by the government stretches the government speech doctrine beyond coherence. It would have significant detrimental effects on the application of the First Amendment.”

The fight is likely to continue for many months to come. Joshua Thompson, the Pacific Legal Foundation lawyers, says he expects oral arguments on the appeal will not be scheduled until next spring or summer.

(The case is Azadeh Khatibi, et al. v. Kristina Lawson, et. al, filed in U.S. District Court for the Central District of California.)