Tuesday, December 30, 2025
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Dissenters Rap Rehearing Denial Over Implicit Bias Mandate
Ninth Circuit Judges Pen Opinions Bemoaning Panel Decision Holding That Continuing Medical Education Courses Are Government Speech Even When They Are Taught by Private Instructors Who Object to Required Content
By a MetNews Staff Writer
Three Ninth U.S. Circuit Court of Appeals judges yesterday criticized the denial of a petition for an en banc rehearing in a case in which a three-judge panel declared that continuing medical education courses that are eligible for credit in California against hours statutorily required for physicians are “government speech” and a private doctor who wishes to continue teaching them may be compelled to include instruction on implicit bias.
Circuit Judges Lawrence VanDyke, Eric Tung, and Patrick J. Bumatay, each a Trump appointee, lamented the July opinion, written by Circuit Judge Jacqueline H. Nguyen and joined in by Circuit Judge Salvador Mendoza Jr. and Senior Circuit Judge A. Wallace Tashima, in which the court declared:
“We hold that [continuing medical education courses] eligible for credit under California law constitute government speech….And because they constitute government speech, [such courses that are] eligible for credit are therefore immune from the strictures of the Free Speech Clause.”
The three-judge panel, made up of Democratic appointees, analyzed the factors set forth in the 2022 U.S. Supreme Court decision of Shurtleff v. City of Boston and concluded that the state has a longstanding tradition of regulating the medical field, the public would be likely to attribute speech in the courses to the government rather than the instructor, and California controls the content mandated for continuing medical education (“CME”) classes.
Implicit Bias
Nguyen, Mendoza, and Tashima affirmed the dismissal of a 2023 complaint, brought by Dr. Azadeh Khatibi, a California ophthalmologist, and Do No Harm, an advocacy group, against various officers of the state’s medical board, asserting that a 2019 law requiring that “all continuing medical education courses…contain curriculum that includes the understanding of implicit bias” violates the First Amendment.
Yesterday’s denial of en banc review allows the ruling to remain in effect, likely to the detriment of any challenges to a 2019 amendment to Business & Professions Code §6070.5(a), which similarly mandates that the State Bar “require that the mandatory continuing legal education…curriculum for all licensees under this chapter includes training on implicit bias.”
VanDyke and Tung both wrote a dissent—each joined in by the other and by Bumatay—asserting that the panel misapplied the Shurtleff factors and greenlit the ability of the state to “commandeer” private actors to express a specific viewpoint on a “controversial” concept.
VanDyke’s View
Saying that the panel opinion “puts our circuit out of step with Supreme Court precedent, our sister circuits’ precedent, and even our own precedent,” VanDyke wrote:
“California does ‘not give prior approval to individual courses or programs.’…Instead, California outsources the accreditation of CME courses to private entities….The only involvement California maintains in the process is that state actors can ‘randomly audit courses…submitted for credit….’ ”
Acknowledging that, “[w]hen the government speaks for itself, the First Amendment’s protections for private expression are not implicated,” he asserted that “the panel in this case paid lip service” to Shurtleff while imposing what “boils down to a single factor analysis” of whether the government heavily regulates CMEs. He said:
“The panel’s application of the…test can be aptly summarized: Does the history of the expression indicate that CME courses are government speech? Yes, because of the broad scope of the government’s historical regulation of CMEs. Does the public likely perceive the government as speaking? Yes, because of the broad scope of the government’s CME regulations. Does the government exercise sufficient control over the message expressed in CME courses? Yes, because of the broad scope of the government’s CME regulations. This one-factor-to-rule them-all test is not the test that prior cases have prescribed.”
Message Being Expressed
He continued:
“[P]rior cases establish that the analysis focuses not on the mere scope of the state’s regulations, but instead on the government’s particular involvement in shaping the message being expressed.”
The judge remarked that, “[h]istorically, California has rarely, if ever, communicated government messages through CME courses” because, “[o]ther than unsurprisingly assuming that CME courses will be broadly related to the medical field, [the regulatory scheme] imposes functionally no content restriction on CME instructors, giving them free rein to pick their topics and decide what to say about them.”
VanDyke rejected the panel’s “unsuccessful[]” “attempt” to “distill from California’s historical regulations one ‘overarching’ government message: ‘what is necessary to ensure the continuing competence of licensed physicians’ that ‘reflects the State’s evolving judgment of what subjects it has deemed essential’ for doctors to know.”
Seal of Approval
Opining that such a broad expression communicates nothing other than “a government seal of approval,” he argued:
“If all that it takes to transform private speech into government speech is the government’s implied signal that it thinks some number of topics are important, or an implied ‘evolving judgment of what subjects it has deemed essential’ for people to know, then a mere government seal of approval…would suffice to swallow private speech.”
He added:
“[E]ven assuming it can be permissible to rely on ‘judicial experience and common sense’ as the panel suggests, the most obvious cognate to CME from our own ‘judicial experience’ would…be the comparable continuing legal education (“CLE”) requirements of our profession, which like the medical profession is heavily regulated, often in very similar ways….Every judge has sat through hours upon hours of CLE, and surely that experience and common sense support the eminent plausibility of Plaintiff’s allegation that CLE attendees perceive CLE instructors as speaking on their own behalf, not on behalf of the government.”
Tung’s Dissent
Tung agreed with his colleague’s analysis but wrote separately to highlight that, in enacting the 2019 law, the state has effectively “commandeer[ed]” private actors to express a specific viewpoint on a “controversial” concept and “[t]hat is not the government ‘speak[ing] for itself’ ” but “is the government compelling others to speak in a certain way.”
He wrote:
“What…does the law do? Simply put, it requires Plaintiffs to convey a message that the government favors but that Plaintiffs do not. The statute mandates, in unmistakable terms, that private instructors teach (and assume) the validity of the ‘implicit bias’ theory. That is not the government ‘speak[ing] for itself’; rather, it is the government compelling others to speak in a certain way.”
Saying that the “State of California could have hired its own employees to spread its message of ‘implicit bias’ and the deleterious effects of this purported phenomenon,” the jurist continued:
“The State has chosen instead to commandeer a vast majority of course providers, who are private, to express a specific viewpoint. That may be the most efficient way for the State to proselytize its message; it may have the added benefit, too, of creating the perception of uniformity on a divisive topic, while imposing a steep social cost on those in the field who dare to dissent. In the end, the statute’s aim appears to be nothing less than ideological conformity enforced through private conscription by the State.”
The judge added:
“Contrary to the panel’s contention (and as Judge VanDyke well explains), the existence of extensive ‘regulation’…does not justify State compulsion of a particular viewpoint….If that were so, doctors could be forced to affirm viewpoints they find odious as a condition of maintaining their licenses. Lawyers could find themselves suffering the same fate, too. Both fields (and others) are highly regulated. Indeed, any professional accreditation regime, now open to and supported by a vast network of private providers expressing differing (and perhaps conflicting) viewpoints, would be in jeopardy of being converted into an engine of state-sanctioned groupthink if those providers could be compelled to announce a singular position. That maneuver is not exempt from the First Amendment’s purview.”
The case is Khatibi v. Hawkins, 24-3108.
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