Doctors opposed to bias training lose at Ninth Circuit

(CN) — A group of doctors who oppose required implicit-bias training have received a blow from the Ninth Circuit Court of Appeals.

A three-judge panel on Friday affirmed a lower court’s dismissal of a suit filed by Dr. Azadeh Khatibi and Do No Harm, a conservative medical advocacy group.

Agreeing with the lower court, the judges said implicit-bias training — included in continuing education courses that physicians must take — isn’t private speech. Instead, it’s government speech and therefore not protected by the First Amendment.

Implicit bias refers to the way stereotypes might unconsciously affect people’s perceptions, acts and decisions.

Golden State lawmakers in 2019 made it part of the state’s continuing medical-education curriculum after finding such bias could contribute to health disparities. Doctors must take 50 hours of these courses every two years.

Khatibi, an ophthalmologist, and the nonprofit Do No Harm sued over the law. They questioned the efficacy of implicit-bias training and argued it violated free-speech rights.

A lower court in Los Angeles threw out the suit last year, setting the stage for arguments in March before the Ninth Circuit panel.

Ultimately, the appeals court agreed with the court in Los Angeles.

“The free speech clause restricts government regulation of private speech,” U.S. Circuit Judge Jacqueline Nguyen wrote for the panel, but “it does not regulate government speech.”

Still, the panel acknowledged that the line between private and government speech could get blurry. They pointed to Pleasant Grove City v. Summum , in which the U.S. Supreme Court found that monuments in public parks were government speech regardless of who paid for them, and Matal v. Tam , in which the high court ruled against the U.S. Patent and Trademark Office after it rejected a band’s trademark application because it included a derogatory term.

In the case of continuing education for doctors, the panel said there was precedent for considering it government speech.

California has regulated medicine since the 1800s, Nguyen noted, as has the state medical board since its inception. Continuing education requirements for doctors have existed since 1980, and lawmakers have added to those requirements over the years.

Quoting from the Supreme Court case Tingley v. Ferguson , Nguyen noted that improper medical treatment “can result in physical and psychological harm to their patients,” justifying the historical tradition of state regulation.

“Dr. Khatibi makes no particularized allegation to the contrary,” the judge added. “She instead advances several arguments that either misunderstand the nature of the government speech inquiry or raise false alarms. None is availing.”

Continuing medical education is for licensed physicians — not the general public — and the state takes an active role in crafting its content, the panel noted.

“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 and pretenders and from the mistakes of incapable practitioners,’” the judge wrote.

Caleb Trotter, an attorney with the Pacific Legal Foundation who helped represent Khatibi, told Courthouse News he was disappointed with the ruling.

“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 wrote in a statement. “Today’s decision is a ‘dangerous misuse’ of government speech that the Supreme Court warned about in Matal v. Tam , and will hopefully be corrected soon.”

The California Attorney General’s Office, which represented the state, couldn’t be reached for comment by press time.

Besides Nguyen, the panel included U.S. Circuit Court Judges A. Wallace Tashima, a Bill Clinton appointee, and Salvador Mendoza, Jr., a Joe Biden appointee.