Amicus Brief: Khatibi v. Hawkins

California mandates that physicians complete continuing medical education (CME) to maintain licensure, but it is the only state that now requires nearly all CME courses—regardless of subject matter—to include instruction on implicit bias. Dr. Azadeh Khatibi, a CME instructor, objects to the requirement on the grounds that it is unsupported, divisive, and often unrelated to her course topics.

She challenged the law as unconstitutional compelled speech and an impermissible condition on the ability to teach CME courses. The district court dismissed the case, holding that CME constitutes government speech rather than her private speech, and the Ninth Circuit affirmed. The case now raises a significant question: whether states may compel private professionals to convey contested viewpoints as a condition of maintaining their licenses.

Now on petition for Supreme Court review, the Manhattan Institute has joined the Center for Equal Opportunity on a supporting brief. The lower court called the instruction "government speech," even though Dr. Khatibi and others are the ones doing the speaking, which creates a dangerous precedent. Moreover, the empirical research behind "implicit bias" shows that the concept is more ideological than scientific. Our brief calls attention to the many studies that have failed to both identify implicit bias and to demonstrate that it creates disparate health effects. California should not be forcing instructors of doctors to teach concepts that lack an empirical basis.

Ilya Shapiro is a senior fellow and director of Constitutional Studies at the Manhattan Institute. Follow him on Twitter here.

Trevor Burrus is a legal policy fellow at the Manhattan Institute.