State Bar of Wisconsin CLE session on bias sparks controversy

Listen to this article

Marquette University Law School Professor Derek Mosley served as the speaker at a State Bar of Wisconsin CLE session Thursday on “unconscious bias.”

Liberal Wisconsin Supreme Court Justice Jill Karofsky introduced Mosley.

“They asked me which session I’d wanted to introduce, I said, this,” Karofsky said, noting unconscious bias is “a social stereotype. It’s automatic. It’s unintentional. It’s deeply ingrained. It’s universal, and it influences all of our behavior. … It can seep into decisions we make every day that affect recruitment, retention,  hiring, access to health care, finances, housing, education, and it effects interpersonal interactions in ways that can disadvantage both individuals and groups of people.”

“We become better lawyers and judges. It’s important to first recognize that we have biases and then to use techniques to mitigate their influence,” Karofsky added.

Mosley previously served as chief Milwaukee municipal judge and worked in the Milwaukee County District Attorney’s office.

During Mosely’s 70-minute discussion, he pointed out how the news media, Hollywood and Disney are racially biased, unconsciously.  Everything from what one eats for breakfast — having ties to plantations —- to a Band-Aid one places on their finger from a papercut — displays some form of bias, he said.

Then the former judge compared plantation weddings to planning a wedding on a holocaust concentration camp.

After being critical of Uncle Ben’s Rice, Cream of Wheat and syrup packaging, Mosley said, “with the exception of first nation, native folks, I’m not quite sure if there is another group of people that we used the worst time in their history to sell pancakes, rice, and … let me put this into prospective for you. Are you all familiar with save the date cards for weddings?” Mosley asked.

The audience replied, “yes.”

Mosley then responded, “OK. So let’s say there is save the date card that said we request your presence to our nuptials. We ask that you save the date of June 15 because we are getting married in Germany at the Dachau concentration camp.

“You would be like, ‘What? I am not going to a wedding at Dachau. What kind of sense does that make?’ Right? But in America we throw over 3,000 weddings on plantations. The same place where women were raped, where their children were ripped out of their arms to never see them again, where men were wrenched and burned at the stake and we have brides and grooms … if you saw that happen at Dachau people would lose their minds, and rightfully so.”

Mosley lead a discussion on unconscious bias back in 2022, before the Milwaukee Jewish Family Services.

On Thursday, Mosley also criticized the news media.

“We’ve talked about cartoons, we talked about movies, we talked about Disney, and all of these groups that are having an effect on us, but the group that is probably the worst is the (news) media.”

Providing multiple specific examples of alleged bias media coverage, Mosley said, “The editor of this newspaper has dedicated 90% of this page to the story that the editor he wanted you to know the most.”

Mosley was referring to how a newspaper page was laid out with a Black burglary suspect being featured more prominently than a white homicide suspect.

Next, Mosley criticized bias in Catholicism.

“You can walk into a Catholic church and see the stained-glass windows of the angels. They are white. Can’t we have just one Black angel?” Mosley asked.

Meanwhile, the Wisconsin Institute for Law and Liberty (WILL), who recently sued the State Bar over the DEI program, also sent a letter to the State Bar of Wisconsin CLE committee back in January of 2024 about diversity and bias training.

According to a copy of the letter obtained by the Wisconsin Law Journal, WILL wrote, “We, the Wisconsin Institute for Law & Liberty, Inc., write to oppose the State Bar of Wisconsin’s efforts to mandate Diversity, Equity, and Inclusion (DEI) Continuing Legal Education (CLE).”

The letter specifically mentions” training related to bias and DEI and to encourage all members to take such training, including by advancing a petition.”

“The Bar also did not cite any empirical evidence that bias, assuming it exists within the legal profession, can be reduced through one-off DEI CLE,” the letter stated.

The letter also noted how in July 2023, the Wisconsin Supreme Court rejected the State Bar’s rule petition as meritless, without even holding a public hearing.

“And Justice Rebecca Grassl Bradley wrote a thorough concurring opinion, which exposed the Bar’s plan,” the letter continued.

On Wednesday, State Bar leadership expressed a sense of disappointment and shock during the Board of Governors meeting that the court rejected the petition.

Attorneys for WILL stated in their January letter, “We will not allow the Bar to destroy the ‘political independence of Wisconsin lawyers.”

During an interview with the Wisconsin Law Journal on Thursday, WILL Attorney Skylar Croy said, “the Bar tried to get a very similar CLE petition through SCOW in the summer of 2023. The court said ‘no,’ with very strong language in Justice Rebecca Bradley’s concurrence. The Bar claimed it just wanted to make voluntary DEI training eligible for CLE; however, a lot of evidence suggested that the Bar really wanted to mandate DEI training for all attorneys. The Bar adopted a two-step plan: first, get it voluntary, then make it mandatory.”

In response, State Bar Executive Director Larry Martin wrote an email to WILL stating that there was a misunderstanding and that the CLE isn’t mandatory. WILL disagrees.

“Contrary to the opening paragraph of your letter, the CLE Committee is not currently considering mandatory DEI CLE. Rather, the Committee is reviewing the prior decision of the Wisconsin Supreme Court to determine if a new petition should be filed with modifications. In particular, the committee is looking to ensure consistency in how the BBE considers DEI courses for CLE credit. While DEI courses are being approved for CLE credit, there is significant variation in the quality of the programs that have been approved, and the hope is that having a set of standards established by the BBE for what programs will be considered for CLE credit would improve the quality of programming offered,” Martin wrote in a January, 2024 email response.