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Critics of affirmative action have launched a long-shot appeal aimed at stopping California from requiring training on unconscious bias in every continuing medical education class.<\/p>\n
A July ruling by a three-judge panel of the 9th U.S. Circuit Court of Appeals upheld California\u2019s right to mandate that every course doctors take to remain licensed must address how bias contributes to poorer health outcomes for racial and ethnic minorities. The ruling against the nonprofit Do No Harm<\/a> and Los Angeles ophthalmologist Azadeh Khatibi amounts to a victory for California as it fights the Trump administration and right-leaning advocacy and legal groups\u2019 attacks on perceived \u201cwokeness.\u201d<\/p>\n In August, the Pacific Legal Foundation, which represents Do No Harm and Khatibi, asked that a panel of 11 appellate judges reconsider what attorney Caleb Trotter characterized as a \u201cvery clearly wrong\u201d decision. Trotter, a senior attorney for the Pacific Legal Foundation, expects the court\u2019s response in October. If the appeal fails, he said, his firm would likely appeal to the U.S. Supreme Court. At stake, legal scholars say, is the latitude of states to prescribe educational content, including health equity training, for licensed professionals.<\/p>\n \u201cThe general recent tenor of the Supreme Court\u2019s First Amendment jurisprudence has been very speech protective, so that we would like our odds with, of course, the understanding that any attempt to get the Supreme Court to take your case is a long shot,\u201d Trotter said.<\/p>\n Erwin Chemerinsky, dean of the University of California-Berkeley law school, described the chances of the Supreme Court taking the case as \u201cvery unlikely\u201d and the appellate ruling as \u201cclearly correct\u201d in affirming the state\u2019s authority to impose course requirements.<\/p>\n California began requiring implicit-bias training for physicians in 2022. From 2019 through July 2022, five other states<\/a> enacted legislation mandating the training. California is the only state that requires it to be included in every course involving direct patient care.<\/p>\n In enacting the law, the legislature found that bias contributed to health care disparities and persisted regardless of other factors influencing care. Black women, for example, are often prescribed less pain medication than white women with the same complaints and are three to four times as likely<\/a> as white women to die of pregnancy-related causes.<\/p>\n Bias does influence clinical care and contribute to health care disparities, a 2022 report<\/a> concluded. Implicit-bias training, however, might have no impact and might even worsen care, the report noted.<\/p>\n \n\t\tSubscribe to KFF Health News’ free Morning Briefing.\t<\/p>\n<\/div>\n Do No Harm<\/a> and Khatibi alleged that California\u2019s law<\/a> violated their First Amendment rights. Khatibi acknowledges that unconscious bias might prejudice how clinicians treat patients. But the Los Angeles ophthalmologist does not believe she should be forced to carve out time to talk about it in a class she might teach on, for example, ocular tumors.<\/p>\n \u201cThe government is mandating doctors endorse a specific ideology or priority instead of science,\u201d she said. \u201cI believe government should not mandate or compel the speech of doctors.\u201d<\/p>\n The three-judge appellate panel disagreed. No one is forcing Khatibi to teach state-accredited continuing education, the panel wrote in its opinion affirming<\/a> a lower court\u2019s decision that the state had the right to mandate the training. The judges found that the curriculum requirement constitutes government speech and, therefore, is not subject to free-speech protections. \u00a0<\/p>\n The complaint against the California medical board<\/a> does not dispute the state\u2019s authority to require physicians to learn about unconscious prejudices. Instead, it argues the state has no right to demand that all teachers discuss bias in every continuing medical education class. California physicians must take at least 50 hours of continuing education every two years. Private institutions offer the courses, and physicians generally teach them.<\/p>\n Rep. Sydney Kamlager-Dove (D-Calif.), who wrote the bill when she was a member of the state Assembly, defended it. \u201cBy connecting every provider to consistent and evolving training, we can help close these gaps and provide more equitable care,\u201d she said.<\/p>\n The Medical Board of California declined to comment.<\/p>\n Ashutosh Bhagwat, a UC Davis School of Law distinguished professor, said the state has a right to require implicit-bias training, although he disagrees that the training constitutes government speech. He sees it as private, but not compelled, speech because Khatibi and other instructors need only include a discussion of implicit bias if they want their classes to qualify for state licensing credit.<\/p>\n He likened the requirement to that of an accredited private school having to teach math. \u201cDoesn\u2019t matter if you don\u2019t want to teach math. Doesn\u2019t matter if you don\u2019t believe in math,\u201d he said. \u201cYou have to teach math.\u201d<\/p>\n Bhagwat sees Khatibi\u2019s case as \u201cvery weak.\u201d But he said he could not predict anything the Supreme Court, with its six-justice conservative majority, might do.<\/p>\n \u201cIf Khatibi wins in the Supreme Court, or at any level, then chaos reigns because now every single requirement in any licensure that says you must teach this to qualify for continuing education is up for grabs,\u201d he said.<\/p>\n Trotter fears the opposite outcome. If allowed to stand, the implicit-bias training mandate could be extended to continuing education for 50 trades and professions in California alone, he said. \u201cThen all kinds of governments based on all kinds of views can start requiring private speakers to say all kinds of things that, depending on where you are, are going to be controversial in all different kinds of ways,\u201d he said.<\/p>\n While Khatibi\u2019s lawsuit and others like it have had little success in the courts, said Joan Williams, a distinguished professor emerita at UC Law-San Francisco, they have chilled the creation of laws deemed \u201cwoke\u201d or those favoring diversity, equity, and inclusion, known as DEI.<\/p>\n \u201cThere\u2019s been this huge attack on DEI, and it\u2019s been extraordinarily effective in creating regulatory risk such that people are apprehensive and self-editing because they don\u2019t want to put a target on their backs,\u201d said Williams, who directs the Equality Action Center<\/a>.<\/p>\n Still, some supporters of bias training say California could refine its approach. Cristina Gonzalez, an internist and a New York University Grossman School of Medicine professor, designs and evaluates interventions to help recognize, prevent, and repair clinicians\u2019 prejudices. She described implicit-bias training as \u201ca science\u201d and California\u2019s approach as misguided because it requires all instructors, regardless of their knowledge of implicit bias, to teach the material.<\/p>\n Finger-wagging and blaming in implicit-bias training can lead doctors to become defensive and avoid patients, but done correctly, by experts, it does work, Gonzalez said. \u201cThe messaging has to be, \u2018You\u2019re not a bad person,\u2019\u201d she said.<\/p>\n This article was produced by <\/em>KFF Health News<\/em><\/a>, which publishes <\/em>California Healthline<\/em><\/a>, an editorially independent service of the <\/em>California Health Care Foundation<\/em><\/a>.<\/em>\u00a0<\/p>\n<\/p><\/div>\n\n\t\t
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