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    Wisconsin Lawyer
    September 07, 2022


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    Petition Seeking CLE Credit for DEI Courses Lacks Scientific Evidence

    colorful gears

    No evidence-based research is cited in the State Bar of Wisconsin’s petition to the Wisconsin Supreme Court seeking CLE credit recognition for voluntary attendance at diversity, equity, and inclusion courses. The petition and memorandum claim these courses will help attorneys with “recognition and reduction of bias.”

    Is there scientific research on this topic? Yes. A vast literature. Diversity training has been around for several decades in our country. Mandatory attendance might be considered by Bar leadership in the future (a Racial Justice Task Force is looking into this issue).

    Traditional diversity “trainers” orate about implicit bias, primarily racial bias, because it fuels the narrative that implicit race bias is the explanation for most, if not all, racial disparities that exist today. This oversimplified worldview of a complex social problem relieves adherents from the hard work of investigating other possible causes.

    The favorite diversity training tool is the implicit bias test. Milwaukee Municipal Court Judge Derek Mosley mentioned it favorably several times in his presentation on unconscious bias at the Bar’s Equal Justice Seminar earlier this year. Past President Kathy Brost mentioned it in her article “Biases: Yours May Surprise You,” Wisconsin Lawyer, May 2021.

    It is pseudoscience.

    Introduced in 1998, the Implicit Association Test heralded a computer screen-based test that could quickly discover whether someone harbors a racial bias they did not know they had. If a bias is detected, you are likely discriminating against people without even knowing it, so the test said. It became the star attraction for diversity programs.

    Over the ensuing two decades, however, psychometric data was collected on test results demonstrating that it fails as a useful psychological instrument: 1) Reliability: does it replicate with statistical accuracy? No. Same person testing-retesting has a high likelihood of different results. 2) Validity: does a positive score predict discriminatory behavior? No. In fact, some studies even indicated that a high score for some test-takers appeared to not be measuring implicit racial bias but something else. See “Psychology’s Favorite Tool for Measuring Racism Isn’t Up to the Job,” New York Magazine – The Cut, January 2017;The World is Relying on a Flawed Psychological Test to Fight Racism,” Quartz, 2017.

    The creators of the test eventually conceded, after meta-analyses were published, that evidence is lacking for the test to be used to predict racially discriminatory behavior. The test should never be used as a diagnostic tool for an individual. It still has merit in academic lab experiments.

    As for diversity programs in general, three decades of data were analyzed by sociologists and their conclusions reported in “Why Diversity Programs Fail,” Harvard Business Review, July-August 2016. The authors state, “Trainers tell us that people often respond to compulsory courses with anger and resistance – and many participants actually report more animosity toward other groups afterward.” As for race bias training in particular, the authors state, “Strategies for controlling bias – which drive most diversity efforts – have failed spectacularly….” See also “Diversity is Important. Diversity-Related Training is Terrible” by Musa al-Gharbi, Heterodox Academy 2020.

    On the other hand, an empirically validated approach to reduce unintentional bias involves a voluntary long-term commitment to a habit-breaking intervention with the help of a cognitive science expert. University of Wisconsin psychologist Dr. William Cox discusses this in “Developing Scientifically Validated Bias and Diversity Trainings that Work” (Jan. 2022) (available at his website).

    We know what works and what does not. Mandating that we do what is ineffective for the sake of “doing something” would be irresponsible.

    Kevin M. Connelly
    Connelly Legal Services, Westby
    Chapter Leader, Foundation Against Intolerance and Racism

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    Wisconsin Supreme Court Puts Major Hurdle in Front of Public Record Requesters

    stack of papers

    In “Records Requesters Must Win in Court to Recover Attorney Fees” (InsideTrack, July 18, 2022), State Bar legal writer Jeff M. Brown summarized the Wisconsin Supreme Court decision in Friends of Frame Park U.A. v. City of Waukesha, 2022 WI 57. Brown wrote that to recover attorney fees under Wisconsin’s public records law, “a records requester ‘must obtain a judicially sanctioned change’ in the relationship between the requester and the custodian of the records, the supreme court has ruled.”

    A reader wrote in.

    Reader: Like many other civil rights laws, Wisconsin’s public records law contains a fee-shifting provision, stating that “the court shall award reasonable attorney fees, damages of not less than $100, and other actual costs to the requester if the requester prevails in whole or in substantial part in any action … relating to access to a record or part of a record under s. 19.35(1)(a).” Wis. Stat. § 19.37(2)(a). That fee-shifting provision, passed when the public records law was enacted in 1982, had been consistently interpreted as permitting a “causal-nexus” or catalyst theory of “prevailing.” In other words, a court order to turn over records was not always necessary, and even if a custodian turned over records “voluntarily” after being sued, a requester “prevailed” if they could show the lawsuit was at least a “substantial factor” in the release of the records. Racine Educ. Ass’n v. Board of Educ., 129 Wis. 2d 319, 328 (Ct. App. 1986).

    But in Friends of Frame Park v. City of Waukesha, the Wisconsin Supreme Court made it significantly more difficult for plaintiffs to recover attorney fees in public records cases (and maybe other cases). Abandoning 40 years of precedent and the settled expectations of requesters and custodians alike, a 4-3 majority ruled that to “prevail,” a requester “must obtain a judicially sanctioned change in the parties’ legal relationship.”

    But once a custodian “voluntarily” turns over records after suit is filed, the traditional view is that the case becomes moot and a decision from the court on the merits can be avoided. While the supreme court withheld ruling on whether and in what circumstances a court can decide the merits after voluntary production, the three concurring justices believed there were no such circumstances and the entire case would become moot. If that view holds, under the supreme court’s new prevailing test, custodians can strip requesters of their ability to recover fees by a unilateral decision to turn over records, even on the eve of trial.

    The three dissenting justices correctly recognized that the decision will give custodians perverse incentives to delay and withhold records. Custodians know they can now refuse to turn records over for any or no reason, and if they are sued, they can just release the records with no consequences. Requesters will have to spend thousands of dollars hiring an attorney to file that suit, with little chance of recovering that money, putting justice beyond affordability for many.

    Transparency advocates have called for a legislative fix. When the U.S. Supreme Court did nearly the same thing in 2002 (abandoning 40 years of the catalyst theory of “prevailing” for attorney fees), Congress reacted by amending the Freedom of Information Act to expressly provide for fees after voluntary production so long as the requester’s claim was “not insubstantial.” Wisconsin should do the same.

    Tom Kamenick
    The Wisconsin Transparency Project, Kamenick Law Office LLC, Port Washington

    Board Member’s Term Expiration Did Not Create a Vacancy for a Replacement

    committee chairs

    In “Walker Appointee Entitled to Hold Over on DNR Board, Wisconsin Supreme Court Rules” (InsideTrack, July 1, 2022), State Bar legal writer Jeff M. Brown summarized State ex rel Kaul v. Prehn, 2022 WI 50. In that case, Brown wrote, the supreme court held that the expiration of Wisconsin Natural Resources Board member Frederick Prehn’s term did not create a vacancy in his position. Consequently, he remained a lawful member of the board and Gov. Tony Evers has no authority to replace him, the majority ruled.

    A reader posted a comment.

    Reader: This decision constitutes an assault on our democracy. The people voted for Governor Evers and he is entitled to place people on regulatory boards. The Republican State Senate is assaulting the people’s right to choose their own representatives by not even voting on the governor’s appointees. Government by minority rule is doomed to fail and already is.

    Nick Zales
    Zales Law Office, Milwaukee

    Unemployment Appeals Landscape: Beyond the Pandemic

    help wanted sign

    In “Unemployment Update: The Pandemic and Beyond” (State Bar Labor & Employment Section blog, June 28, 2022), Brenda Lee Lewison wrote that the COVID-19 pandemic greatly affected unemployment law in Wisconsin. The author discussed the effects and offered practice tips for attorneys who represent clients with unemployment compensation overpayment investigations.

    A reader posted a comment:

    Reader: This is a nice summary of the unemployment appeals landscape.

    Another practice tip: Tell your clients to always appeal! If nothing else, it stops the collection action and gives the client time to consider options. It is possible to win these concealment cases and to win on other issues as well both at the hearing level and when appealed to the Labor and Industry Review Commission. Many clients have tried their best to report wages and are massively confused by the system. Many are overwhelmed and terrified. They need help.

    A slight positive for the client is that there is a statutory limit on what an attorney can charge, so the “attorney bill pain” has an upper limit.

    Jill Lendu Johnson
    J. Johnson Law Group LLC, McFarland

    » Cite this article: 95 Wis. Law. 6-8 (Sept. 2022).

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