If you only remember Justice Rebecca Bradley of the Wisconsin Supreme Court from her days writing op-ed columns blasting “Queers,” rest assured that absolutely nothing has changed! These days, Bradley is a critical cog in Wisconsin’s far-right majority on the state’s highest bench… for now. Because Wisconsin voters kicked that majority to the curb by a 55% to 44% vote. At least the conservative candidate took the loss with… what’s the opposite of grace and professionalism?
It seems that Bradley (we should probably call her “Rebecca Bradley” from here on since there are multiple Justice Bradleys on the Wisconsin Supreme Court) shares the losing candidate’s sense of decorum and uncorked a 33-page screed (h/t Professor Litman) ripping diversity training and delivering a speed run through a nightly Newsmax sitting.
The State Bar had asked to include a voluntary DEIA category to the state’s CLE program, allowing practitioners who choose to take a diversity course to apply that credit to their mandated 30 credit hours of CLE. As the petition morphed, a six credit limit on DEIA proposal as well as a proposal requiring at least one DEIA credit were both floated. In the last couple weeks of its majority status, the conservative majority denied the petition in a short opinion.
Justice Rebecca Bradley (see, I thought about just using Justice Rebecca for the sake of clarity, but there are multiple Rebeccas on this court too!) decided to… elaborate on that opinion.
I therefore respectfully concur but write separately to highlight how DEIA courses damage human dignity, undermine equality, and violate the law….
All right, you know what game we play whenever a white person launches into an unhinged rant against diversity, right? You got it: how many words does it take until Martin Luther King Jr. is disingenuously invoked?
Proving well that many proponents of DEIA orthodoxy demonize its critics, the dissenting justices “choose not to respond” to this concurrence, instead dismissing it with a headline-grabbing caricature as “hostile, divisive, and disrespectful” “political rhetoric[.]” Dissent, ¶46 n.4. This concurrence cites more than a dozen United States Supreme Court decisions, multiple state supreme court decisions, Frederick Douglass, Martin Luther King Jr., Thurgood Marshall, Clarence Thomas, James Madison, Montesquieu, and at least an additional dozen legal scholars, authors, and professors. Of course, the real reason for the dissenters’ refusal to engage with the substance of an opinion spanning more than 30 pages is the imminent change in court membership. The new majority will reverse this court’s order at its first opportunity.
“Martin” is word 56 (citation omitted).
As you can tell, she’s quite exercised that the dissent just rolled its eyes at this gibberish and quietly mouthed “scoreboard” while circling the date they retake the majority. She demands a debate… or at least what dumb people think constitutes a “debate.” As Becks Bradley says, “When lawyers decline to respond to legal arguments advanced in a case, the court considers the point conceded.” Well, yeah. But when there’s not really a substantive argument worth answering, that concession doesn’t mean much.
Facially benign verbiage under the umbrella of DEIA shrouds this regression toward a freshly fractured society. Nice-sounding euphemisms aside, DEIA initiatives often presuppose the existence of certain “universal values,” which are not actually universally shared, in an effort to stifle debate. See Ben Shapiro, How to Debate Leftists and Destroy Them: 11 Rules for Winning the Argument 22 (2014).
Ben Shapiro. Thus closing the loop on “what dumb people think constitutes a ‘debate’”?
In any event, she cites King once: “An individual has value because he has value to God. Whenever this is recognized, ‘whiteness’ and ‘blackness’ pass away as determinants in a relationship and ‘son’ and ‘brother’ are substituted.” Martin Luther King, Jr., Where Do We Go from Here: Chaos or Community? 102–03 (Beacon Press 1968). Funny because the sort of quote I remember from that book is “White Americans must recognize that justice for black people cannot be achieved without radical changes in the structure of our society.”
I guess she didn’t get to that part.
The vast majority of Americans value diversity, inclusion, and access in their fullest senses, but DEIA discriminates against and excludes categories of people it deems “privileged.” “Equity” sounds benevolent but insidiously “calls for institutions to treat people unequally purportedly to achieve an equal outcome.” See Unequal Protection: The Push to Replace “Equality” with “Equity” is Unconstitutional, Heritage Foundation, at 1:30 (Sept. 23, 2021).
To be clear, this isn’t about affirmative action where there’s at least a twisted argument that the program “disadvantages” white people. This is a bunch of classes that inform crusty old lawyers that the jokes they’re telling around the office are mostly sexist and racist. That’s only “discriminating against” people if you begin from the premise that white dudes should have the right to discriminate against everyone else. There’s not a single thing about this proposal that disadvantages white folks.
This is a class lawyers can choose to take or not. But Becky with the Bad Arguments says that even though the court could grant this request limited to voluntary enrollment for a limited number of credits in run-of-the-mill “don’t discriminate” classes, it must be rejected because “This petition originated in partisan controversy and is a well-documented step toward mandatory DEIA CLE.”
And in this instance it actually was.
She then spends a healthy chunk dissing some cherry-picked stuff from an existing diversity CLE to stand in for the whole of anti-discrimination training — the sort of logical fallacy that an actual debate would call out but is the stock-in-trade of the Ben Shapiro school of dumbbate — to lament that CLE credit would be available for a case that isn’t even about “law.”
At no point did the consultant discuss how to run a legal practice or relate his lessons to law. The lecture parroted standard woke corporate nonsense forced upon many in-house counsel by their employers. According to one Bar publication, the proposed rule is necessary because “many attorneys are required to take this type of training as part of their work, . . . [but the BBE] does not recognize most of the programs for CLE credit.”
All right, who had the under on “woke” being used before page 15? Congrats!
Of course these classes “discuss how to run a legal practice” to the extent legal practices need to understand bias. Whether it’s with their own colleagues or with clients, training courses that cover “hey, don’t be a jerk” absolutely fall within the realm of running a legal practice.
But “being a jerk” is a feature and not a bug for Justice Rebecca Bobecca Banana Fanna Fo Fecca:
In Minnesota, attorneys can take a class on avoiding “microaggressions”10 — i.e., how to be so boring no one can possibly take offense.
Ah. The right-wing shibboleth that life is boring if they aren’t offending historically disadvantaged people. That’s not comedy, that’s bullying.
Consider whether the proponents of mandatory DEIA CLE would agree courses presenting a conservative perspective qualify.
Um, tentatively I’d say that’s… fine? Like, “How to avoid implicit anti-religious microaggressions” would certainly be a viable DEIA course. Surely, these are the sorts of DEIA courses she’s talking about.
In May 2018, the Minnesota Lavender Bar Association (MLBA)——a voluntary professional association of lesbian, gay, bisexual, transgender, gender queer, and allies — objected to an accredited “elimination of bias” CLE presentation titled “Understanding and Responding to the Transgender Moment/St. Paul”
Narrator voice: These were not the sorts of DEIA course she was talking about.
A course about “responding” to diversity by outlining arguments against inclusion is not going to meet DEIA. And, much to the disappointment of Justice Karen Bradley, the Minnesota accreditation authorities agreed.
Unquestionably, that program addressed DEIA subject matter but not from the politically correct vantage point. Contrary to MLBA’s claims, the program did not contain “discriminatory and transphobic rhetoric”; rather, the program’s obvious goal was to teach viewers about gender dysphoria so they could better serve people suffering from it.
Oh, look! She’s not against Trans folks, she just wants everyone to categorize it as a mental disorder. Honestly, I could teach a CLE course that qualifies for DEIA credit just going through each paragraph of this opinion.
The great abolitionist Fredrick Douglass observed…
Oh, here we go.
…that “[t]he Constitution makes no distinction on account of race or color[.]” Frederick Douglass, Blessings of Liberty and Education (Sept. 3, 1894). By modern notions of political correctness, his famous speech advocating colorblindness would be deemed racist…
Dollars to donuts she’s got serious problems with “Critical Race Theory” (though it does not show up in the opinion! Pay up) yet this is sorta exactly what critical race theory is. Despite Geneva Crenshaw’s best efforts, the Constitution does not make that distinction, but this is a descriptive statement rather than a normative one (affiliate link). All the blustering right-wing media scare tactics aside, critical race theory boils down to “the Constitution is racially neutral… and we are not saved, so why is that?”
Tellingly, not a single member of the Bar’s Board of Governors (a large body) opposed the petition; additionally, only one attorney wrote to this court in opposition to it. Although some may interpret the dearth of critical commentary as evidence of the petition’s widespread support, “the absence of such voices” represents “a symptom of grave illness in our society.” See Sweezy v. New Hampshire, 354 U.S. 234, 251 (1957) (plurality).
Sweezy was about criminally prosecuting someone under the Red Scare. That the public didn’t stand up for communist sympathizers against the state is a little distinct from “no one thinks a voluntary CLE course on recognizing implicit bias is a problem.”
Sometimes everyone agrees the sky is blue because the sky is, in fact, blue.
Seriously, this was the best cite she could find for this? By the way, this is why you don’t get into “debates” with the ill-prepared. Or as we used to put it, “don’t enter a battle of the wits with the unarmed.”
Wanna see the whole opinion? Of course you do!
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.