Attorneys who weighed in to the Colorado Supreme Court on a proposal to require equity, diversity and inclusivity training as part of continuing legal education were largely in favor of the mandate, saying lawyers of color and women bear the brunt of unprofessional conduct.
"It’s well established that bias is as natural as we breathe, and that equity is a lifelong journey where we never arrive," said Nathifa Miller, co-chair of the committee that developed the policy, at a Tuesday hearing with the seven justices. "That’s where we get fooled. We think we’ve arrived. And the key is education.”
As drafted, the existing requirement to pursue continuing legal education in ethics would instead cover "professional responsibility." At least two of the seven credit hours in this category would need to come from equity, diversity and inclusivity (EDI) training. At least five hours would address ethics and legal professionalism.
EDI education would need to cover the recognition and elimination of bias in the legal profession and discuss equal access to justice and how to serve diverse populations.
Attorney General Phil Weiser and several of Colorado's professional legal organizations were among those throwing their support behind the policy.
“Our members told us that when they talked about their experiences of sexual discrimination and harassment, they were professionally disparaged, diminished or ostracized for having done so," said Ruth Moore of the Colorado Women's Bar Association.
Rebecca Alexander of the law firm Sherman & Howard recalled early in her career meeting a superior who asked how she thought the company should respond to her "alternative lifestyle." She had no idea what he was talking about.
“He said, 'You know, the fact that you have young children,'" Alexander explained.
The Supreme Court also received hundreds of pages of written comments. Some attorneys believed two hours of EDI education during a three-year window was too low. Others worried about the two hours of lost legal ethics training.
Several lawyers were stridently in opposition, characterizing EDI training as liberal indoctrination that violated their constitutional rights.
"I do not look to [continuing legal education] to form or develop my social, political, or religious beliefs. To require conservative lawyers to attend seminars based on the extremely liberal views of a minority of attorneys has no place in CLE," wrote Nathan L. Andersohn.
"EDI is racism in the form of alleged-anti-racism," added Marc Salzberg. "EDI is another horror brought to us by the 'virtue'-signaling virus that has perverted the meaning of 'virtue'."
Another commenter asked the Court not to become the "woke police."
Instead of opposing the changes outright, some attorneys asked the Court to make EDI education voluntary.
“The civil rights movement was not mandatory and it did not mandate that the American people should believe in equality of the law or equal opportunity or any such thing. It was based on love," Bill Banta argued to the justices.
Justice Melissa Hart acknowledged it would be difficult to "to separate out a certain kind of set of values" from EDI training. She shared her own experience as a young mother teaching at the University of Colorado's law school and encountering male colleagues who believed she should not be back at work. Hart speculated that such viewpoints would not be affirmed through EDI education.
"I don’t think somebody who’s a committed sexist is going to find the light from EDI training," responded Kevin McReynolds, who was recently the president of the Denver Bar Association. "But I do think it is and has proven to be extremely valuable for people who are just trying to do their best and have blind spots.”
District Court Judge Andrew P. McCallin, who co-chaired the committee that developed the EDI rule, said Colorado looked to other states that adopted EDI policies for attorneys. Illinois was the most direct source of inspiration because attorneys there had studied and found a relationship between EDI education, ethics and professionalism.
“Illinois tried it as an optional part," McCallin said, "and they went back and had to change it to mandatory. They explained to us that it just wasn’t working as an optional component.”
Colorado is not alone in its effort to explore mandatory EDI education. The Tennessee Supreme Court last year solicited comments on a Nashville Bar Association proposal to require two credit hours annually of EDI training. Like Colorado, many arguments against the "sensitivity training," as one person described it, were familiar.
"To put it bluntly," wrote one lawyer, "this endeavor is an attempt at forced indoctrination."
In Colorado, the legal field has seen some steps forward for diversity within the past year. Gov. Jared Polis has appointed more black women to be judges during the first half of his term than all previous governors combined. And CU's law school announced that more than one-third of the class of 2023 were students of color, compared to 17% five years prior.
At the same time, the death last week of former Supreme Court Justice Gregory Kellam Scott was a reminder that not since 1999 has a Black attorney sat on the state's highest court. In addition, U.S. Bureau of Labor Statistics data show that more than 86% of lawyers nationally are white. That is a higher percentage than civil engineers, police officers, dentists and surgeons.
"We as lawyers are supposed to be the guardians of equity and justice," McReynolds said in citing those statistics. “Either there are structural issues within our profession that need to be recognized, identified and addressed, or this is just how it is because inherently somehow, only some parts of our society can be lawyers."
He added: "I cannot accept that explanation.”