Attorney General Knudsen leads 14-state coalition against California’s woke DEI requirements

HELENA – Montana Attorney General Austin Knudsen led a coalition of 14-state attorneys general in asking the Supreme Court of the United States (SCOTUS) to reverse a Ninth Circuit Court of Appeals decision that violates physicians’ First Amendment right. The decision compels physicians to adopt California’s Continuing Medical Education’s (CME) state-approved viewpoints, which push radical diversity, equity, and inclusion (DEI).

The amicus brief was filed Tuesday in Azadeh Khatini, MD; Do No Harm, Inc. v. Randy Hawkins. As noted in the brief, SCOTUS should reverse the Ninth Circuit decision because California is infringing on medical professionals’ free speech by limiting CME curriculum to state-approved DEI messaging. Physicians are required by each state to complete CME courses to maintain their licenses and remain in good standing, and California CME requires physicians to adopt state-approved DEI viewpoints as a condition of their licensing.

“If California’s statute passes Constitutional muster, the prior limitations on the government-speech doctrine fall away, leaving only questions about just how far this power reaches,” Attorney General Knudsen wrote in the brief.

The Ninth Circuit decision upholding California’s CME requirement contradicts Chiles v. Salazar. In Chiles, courts must apply strict scrutiny when evaluating the regulation of the private speech of professionals. Although the case protected a mental health counselor’s ability to discuss conversion therapy, it did not limit the counselor’s ability to address the subject. In the same sense that the government cannot prohibit a professional from speaking on a viewpoint that is contrary to the government, the government should not compel the speaker to speak on the government’s viewpoint. This new mandate not only restricts physicians’ speech in training but could also expand state power by compelling government-mandated messaging in other professional fields.

Historically, California exercised little to no control over the curriculum of CME courses. Under California’s recent mandate, however, CME instructors are to prepare and present a “curriculum that includes the understanding of implicit bias,” including examples of how implicit bias affects physicians’ and surgeons’ treatment decisions and health outcomes. The training even goes as far as including strategies for recognizing and addressing bias in the health care field among patients of different races, ethnicities, gender identities, sexual orientations, age, and other demographics.

“Into this maelstrom of national debate over DEI, including implicit bias training, and other deeply controversial issues, California has thrust petitioners and anyone else who engages in CME instruction,” the brief states. “In doing so, it has forced these private actors to serve as the mouthpiece of the California government, endorsing one viewpoint in the controversy while implicitly rejecting the other. And it has done so despite having other viable avenues for expressing California’s position on implicit bias in medicine.”

Attorneys general from Alabama, Alaska, Georgia, Idaho, Indiana, Kansas, Louisiana, Nebraska, Oklahoma, South Carolina, Texas, and West Virginia also joined the brief led by Montana and Iowa.