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Ninth Circuit:
Implicit-Bias Mandate in Medical Education Is Valid
Opinion Says Requiring Coverage of Topic in Order to Receive Credit for Continuing Instruction Courses Does Not Implicate Teaching-Physician’s First Amendment Rights Because Classes Amount to ‘Government Speech’
By Kimber Cooley, associate editor
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AZADEH KHATIBI medical doctor |
Continuing education courses, approved for credit by the Medical Board of California to comply with a regulatory mandate that physicians take at least 50 hours of instruction every two years on the latest trends in medicine, are “government speech” and beyond the scope of the First Amendment, the Ninth U.S. Circuit Court of Appeals held Friday, validating a requirement that doctors receive instruction in combating implicit bias.
The ruling—which impliedly validates a like requirement in California’s continuing legal education rules—comes by way of an action brought by a California physician with a history of teaching the courses, who objected—on free-speech grounds—to a new requirement on implicit bias, adopted in 2019.
In an opinion by Circuit Judge Jacqueline H. Nguyen, the court rejected the physician’s assertion that, although the state has historically mandated that the classes include certain information, the attendees attribute the speech to the course provider rather than the state, and that she is being forced to espouse the government’s view on a controversial topic.
1943 Decision
Nguyen quoted former U.S. Supreme Court Justice Robert H. Jackson’s opinion in the 1943 case of West Virginia State Board of Education v. Barnette, and wrote:
“ ‘If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox….’….This star yet shines. Just as California cannot compel Plaintiffs to teach subjects against their beliefs in their private capacities, Plaintiffs cannot compel California to speak against its own in its official capacity as guardian against ‘quacks…’ [in the medical field].”
At issue is the statutory scheme regulating the continuing education of licensed physicians, found at California Business and Professions Code §2190 et seq. In 2019, the Legislature passed a bill, AB 241, amending §2190.1(d) to require that “all continuing medical education courses…contain curriculum that includes the understanding of implicit bias.”
According to the law, CMEs that are approved for credit must contain “[e]xamples of how implicit bias affects perceptions and treatment decisions of physicians and surgeons” and strategies for addressing “health care disparities” that result from such unconscious prejudices.
(The Legislation in 2019 also enacted AB 242, amending Business & Professions Code §6070.5(a) to require that the State Bar “adopt regulations to require, as of January 1, 2022, that the mandatory continuing legal education (MCLE) curriculum for all licensees under this chapter includes training on implicit bias.”)
Complaint Filed
In August 2023, Dr. Azadeh Khatibi, a California ophthalmologist, and Do No Harm—an advocacy group dedicated to “keeping identity politics out” of the medical field which has with at least one member who teaches continuing education courses in the state—filed a complaint against various officers of the Medical Board of California. In the operative pleading, the plaintiffs alleged:
“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. 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.”After the defendants filed a motion to dismiss for failure to state a claim, under Federal Rule of Civil Procedure 12(b)(6), District Court Judge Mónica Ramírez Almadani of the Central District of California granted the request, without leave to amend, saying:
“[T]he State’s history of regulating medical licensure and its longstanding practice of using continuing education requirements as part of this licensing scheme supports the finding that teaching CME courses is government speech.”
Friday’s opinion, joined in by Circuit Judge Salvador Mendoza Jr. and Senior Circuit Judge A. Wallace Tashima, affirms the dismissal.
Government Speech
Nguyen noted that the First Amendment only restricts the regulation of private expression, but acknowledged that jurisprudence has provided that “great caution” should be used before categorizing something as “government speech.”
Saying that the boundary between the two can “blur” where the state invites individuals to participate in the process, she explained that courts are to consider three factors in analyzing whether a particular expression is private or government speech—the history at issue, the public’s likely perception as to who is speaking, and the extent to which the state has exercised control in the area.
As to the first factor, she noted that the “Legislature…has conceived of…content requirements” for continuing medical education courses (“CMEs”) since 1992, requiring that all credit-eligible classes focus on “scientific or clinical content,” relate to “bioethics,” and “improve physician-patient relationship[s],” among other topics.
Based on this history, Nguyen opined:
“There is no question that California has actively regulated the medical profession…and the Board, in one way or another, has imposed qualifications on the practice of medicine ever since. It has also specifically adopted, updated, and enforced CME standards for almost half a century.”
Khatibi argued that, before the adoption of the implicit bias mandate, CMEs have never been used to convey government messages to the public—distinguishing the classes from the license plates and monuments that the U.S. Supreme Court has classified as government speech—and that looking to the lengthy regulatory history is ‘myopic’ because “the results would be” susceptible to abuse. Rejecting that assertion, the jurist remarked:
“It would be a serious affront to the Constitution if regulatory history alone were sufficient to immunize speech from First Amendment scrutiny. However, as the Supreme Court explained, history is but one factor….Just as we cannot equate something to monuments and conclude it is government speech, we cannot simply deem CMEs distinct from monuments and license plates, conclude they are nontraditional forms for government expression, and then terminate the inquiry. To do so would begin and end the analysis at the mere ‘starting point.’ ”
Identity of Speaker
As to Khatibi’s assertion that “attendees treat her as the person responsible for the content discussed” because she is the sole organizer for her CMEs and those in attendance often debate her points of view, Nguyen responded:
“It…does not seem unreasonable to infer that licensees perceive the content of accredited CMEs as coming from the State based on Dr. Khatibi’s own allegations. If physicians are cognizant that their profession is heavily regulated…; that they attend CMEs, primarily to secure credits to maintain their licenses…; that the Board requires licensees to take certain classes with specific content (like about implicit bias); and only compliant CMEs get credit (the very concern of Dr. Khatibi’s lawsuit), then ‘common sense’ commands that licensees could attribute approved CMEs’ content to California.”
Addressing whether the state has “actively shaped or controlled the expression,” she reasoned:
“Alongside history, California’s extraordinary control over accredited CMEs is the ‘most salient feature of this case.’… Contrary to Dr. Khatibi’s claims, California not only shapes the content of CMEs, but it also imposes several restrictions on their form and delivery. In short, it controls accredited CMEs ‘from beginning to end.’ ”
‘Mere Approval’
Khatibi asserted that the board’s role is one of accreditation or “mere approval,” and pointed out that none of her classes have ever been audited. Unpersuaded, Nguyen said:
“[I]t is also of no moment that the Board normally accredits CMEs without an audit,…or that it has not yet chosen to audit Dr. Khatibi’s courses. No one disputes that the Board may audit any course and deem it ineligible for credit. This, combined with the State’s requirement that any accredited CME (which must be provided by specified, qualified providers) relate to at least a few, if broad, topics means that California shapes or controls CMEs….”
Nguyen declared:
“We hold that CMEs eligible for credit under California law constitute government speech….And because they constitute government speech, CMEs eligible for credit are therefore immune from the strictures of the Free Speech Clause.”
The case is Khatibi v. Hawkins, 24-3108.
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