Keywords: California implicit-bias training, medical education, continuing education, affirmative action critics, unconscious bias, healthcare disparities, DEI, Do No Harm lawsuit
Critics Challenge California’s Implicit-Bias Training Mandate
Critics of affirmative action and diversity initiatives are challenging California’s law requiring implicit-bias training in all continuing medical education (CME) courses for licensed physicians. The lawsuit, filed by the nonprofit Do No Harm and ophthalmologist Azadeh Khatibi, argues the mandate violates First Amendment rights by compelling instructors to discuss unconscious bias, even in courses unrelated to health equity.
A three-judge panel of the 9th U.S. Circuit Court of Appeals upheld California’s authority to require CME courses to address bias and its impact on healthcare disparities among racial and ethnic minorities. The Pacific Legal Foundation has requested that a larger appellate panel reconsider the ruling, and if unsuccessful, the case could potentially reach the U.S. Supreme Court.
The Purpose of Implicit-Bias Training
California began requiring implicit-bias training for physicians in 2022, citing evidence that unconscious bias contributes to unequal treatment and poorer outcomes for patients from minority groups. For example:
- Black women are often prescribed less pain medication than white women with identical symptoms.
- They are three to four times more likely to die from pregnancy-related complications.
Five other states enacted similar legislation between 2019 and 2022, but California is the only state requiring all CME courses involving direct patient care to include bias training.
Legal Arguments and Court Response
Do No Harm and Khatibi contend that instructors should not be forced to integrate discussions of implicit bias into courses on unrelated medical topics, arguing the law constitutes compelled speech.
However, the appellate panel ruled that CME course requirements fall under government speech, meaning the state may mandate educational content without violating free-speech protections. Instructors are free to decline teaching CME courses but cannot claim a First Amendment violation for choosing not to participate.
Legal experts warn that a Supreme Court ruling overturning the mandate could threaten all professional licensure education requirements, while allowing it to stand could expand bias training across multiple industries and professions.
Impacts on Diversity, Equity, and Inclusion (DEI) Efforts
Although legal challenges have had limited success, critics argue such lawsuits chill DEI initiatives, creating regulatory risk and making institutions hesitant to implement programs that promote equity.
Supporters of bias training, however, emphasize its importance in reducing healthcare disparities. Experts recommend that implicit-bias training be delivered by knowledgeable instructors, focusing on awareness without assigning blame, to prevent defensive responses from clinicians and maximize effectiveness.
Expert Perspectives
- Erwin Chemerinsky, UC Berkeley Law School dean, called the appellate ruling “clearly correct” and affirmed the state’s authority to mandate CME training.
- Ashutosh Bhagwat, UC Davis Law professor, noted that requiring instruction on implicit bias is comparable to mandating core subject teaching, such as math, in accredited programs.
- Cristina Gonzalez, NYU Grossman School of Medicine, emphasized that properly implemented bias training works, highlighting that the messaging must avoid guilt and focus on improving patient care.
Conclusion
California’s implicit-bias training mandate for medical education remains a contentious legal and social issue, balancing physician autonomy with the state’s interest in reducing healthcare disparities.
As the lawsuit proceeds, the case could set a precedent affecting continuing education requirements, DEI initiatives, and professional licensing mandates nationwide. While opponents continue their legal fight, supporters emphasize the importance of bias awareness in achieving equitable healthcare outcomes.
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