US court upholds California's implicit bias training mandate for doctors

By Daniel Wiessner

July 25 (Reuters) - A U.S. appeals court on Friday rejected claims that California violated the free speech rights of doctors who teach continuing medical education courses by mandating that they include information on implicit bias.

A unanimous three-judge panel of the 9th U.S. Circuit Court of Appeals said that because the content of the courses, known as CMEs, is dictated by the state, it amounts to government speech shielded from constitutional scrutiny regardless of who delivers the message.

The Medical Board of California requires physicians and surgeons to complete CMEs to maintain their licenses, and approves and accredits courses offered by doctors including Azadeh Khatibi, an ophthalmologist and the plaintiff in Friday's case. A 2021 state law requires that CMEs include information about implicit, or unconscious, bias and the potential for doctors to treat patients differently based on their race, sex or other factors.

Khatibi and the nonprofit Do No Harm, which advocates against what it calls "radical, divisive and discriminatory ideologies" in the medical profession, say the law unlawfully forces instructors to endorse speech with which they may not agree in violation of the First Amendment of the U.S. Constitution.

But the 9th Circuit said that speech belongs to the government, as it has more than a century of closely regulating the medical profession and adopting detailed requirements for CMEs.

"If physicians are cognizant that their profession is heavily regulated [and] that they attend CMEs primarily to secure credits to maintain their licenses ... then 'common sense' commands that licensees could attribute approved CMEs' content to California," Circuit Judge Jacqueline Nguyen wrote.

The panel included Circuit Judges A. Wallace Tashima and Salvador Mendoza. All three judges are appointees of Democratic presidents.

Caleb Trotter of Pacific Legal Foundation, who represents Khatibi and Do No Harm, said the libertarian group was disappointed with the ruling and is considering its options.

"If continuing medical education courses in California are 'government speech' as the panel decided today, then there is little to stop governments around the country from compelling continuing education instructors in any trade or profession to profess all manner of controversial state-endorsed topics," Trotter said in an emailed statement.

Many states in recent years have conditioned professional licenses for doctors, lawyers, teachers and others on completing diversity or anti-racism training, prompting backlash from some professionals and conservative groups.

A Michigan dentist represented by Pacific Legal filed a lawsuit in April over a state licensing requirement that healthcare providers complete implicit bias training. Last year, the St. Louis-based 8th Circuit rejected claims that a Missouri school district violated employees' free-speech rights by requiring them to attend anti-racism training.

Friday's decision affirms a 2024 ruling by U.S. District Judge Monica Ramirez Almadani in Santa Ana, California, that dismissed the lawsuit by Khatibi and Do No Harm.

The case is Khatibi v. Hawkins, 9th U.S. Circuit Court of Appeals, No. 24-3108.

For Khatibi and Do No Harm: Joshua Thompson and Caleb Trotter of Pacific Legal Foundation

For the state: Kristin Liska of the California Attorney General's office

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