I Appreciate the Spirit of the Rule Change, and I Agree That We All

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From: Javed Abbas To: stevens, cheryl Subject: Comment On Proposed Rule Change - 250.2 Date: Saturday, March 27, 2021 8:42:43 PM Attachments: image002.png

I appreciate the spirit of the rule change, and I agree that we all likely benefit by understanding the fundamental ways in which we are all connected, and that our society will either succeed or fail primarily based on our ability to cooperate with each other and treat each other fairly. However, I do not support the rule change because I do not think it will have the effect of making us more inclusive because of the ways humans tend to react when forced to do things. There will inevitably be push back from a group of people who do not support the spirit of the rule, that push back will probably be persuasive to people who don’t have strong feelings about the ideas one way or the other but will feel compelled to oppose the ideas because it will be portrayed as part of a political movement that they are inclined to oppose, and ultimately the Rule that is supposed to help us become more inclusive will actually help drive us further apart. I do think it’s a great idea to offer these CLEs and let them compete on equal footing in the marketplace of ideas.

Rule Change:

Javed Abbas Intake Attorney

303-515-5000 [email protected] www.harrisfamilylaw.com

Wisdom, Strength and Peace of Mind Please notify us if you have received this email in error.

Comment on Proposed Rule Change

I am strongly in favor of the proposed rule change creating a new equity, diversity, and inclusivity CLE requirement.

As a white person who has been learning about this subject matter in the past year, I am overwhelmed at all the information I don’t know. Moreover, beginning to learn about lingering systemic injustices and acknowledging the lack of diversity and inclusivity in our institutions has convinced me there is much work left to do. Part of that work should be mandatory training on these issues, which are not readily apparent unless they affect you personally.

Our justice system promises equal justice under the law. But the laws are administered, interpreted, and enforced by people. Unless we are given the tools to recognize where we fall short, the people working in our legal system cannot live up to its highest values. I urge the court to give Colorado lawyers the chance to learn about these vital issues, for the good of all.

Submitted by: Amy Adams From: Katie P. Ahles To: stevens, cheryl Subject: Proposed EDI CLE Rule Public Comment Date: Monday, March 29, 2021 9:53:27 AM

Cheryl,

I am writing in support of the proposed EDI CLE Rule to require at least two credit hours in the area of equity, diversity, and inclusivity. As a young female attorney, who began practicing at age 25, I have experienced sexism in my own practice on far too many occasions. I have also been witness to issues of racism. Colorado needs to join the states who have already committed to training attorneys and Judges to be knowledgeable on EDI and cultural competence issues. By taking this small step, we would be setting an important example of all Coloradans and other professions.

Thank you for your consideration.

Best,

Katie Ahles Attorney at Law Hogan Omidi, PC 3773 Cherry Creek North Drive Suite 950 Denver, CO 80209 (303) 691-9600/ Fax: (303) 691-9900 Email: [email protected] Visit us at: http://hoganomidi.com

From: Alexander, Rebecca C. To: stevens, cheryl Subject: Comment on Proposed Change to Rule 250.2 Date: Sunday, March 28, 2021 12:27:47 PM Attachments: image001.png

Cheryl,

I am writing to express my support for the proposed change to Rule 250.2, incorporating a requirement of at least 2 credit hours in the area of equity, diversity, and inclusivity as part of the Colorado CLE requirements for attorneys practicing in this State.

As an attorney practicing in “big law” (e.g., first a national firm, and now a large local/regional firm), I am acutely aware of the blissful ignorance that many attorneys live in when it comes to these issues. It is difficult to create opportunities for constructive dialogue on topics such as implicit bias, white privilege, and systemic raciscm. Making topics like these part of our every day lexicon, and part of what we are EXPECTED to understand, will help to alleviate the sense that these topics are only discussed when someone in the room needs to have a finger pointed at them. Every single attorney (person) in this State will either be part of perpetuating the problem, or part of perpetuating the solution – there is no other option (even professed “neutrality” is part of the problem). If we want to address these issues systemically, we need to make addressing them part of the system.

I would be pleased to speak on this topic at the hearing on April 6.

Rebecca Alexander Rebecca C. Alexander - Member Family Law 633 Seventeenth Street, Suite 3000, Denver, Colorado 80202 Direct: 303.299.8117 | Fax: 303.298.0940 [email protected] | www.shermanhoward.com

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From: Alldredge, Jennifer To: stevens, cheryl Subject: CLE Inclusion of equity, diversity and inclusivity Date: Monday, March 29, 2021 8:21:46 AM Attachments: image006.png

Dear Ms. Stevens, I hope this email finds you well. This email to comment on the incredible importance of the inclusion of the proposed change to the Colorado CLE Requirement. I strongly believe that the inclusion of “at least two credit hours in the area of equity, diversity and inclusivity,” will bring valuable change to the Colorado bar. Best, Jennifer

Jennifer C. Alldredge Attorney at Law

1099 18th Street, Suite 2600 Denver, CO 80202 T: 303-297-2600 F: 303-297-2750 E: [email protected] Web: www.rwolaw.com This electronic mail transmission and any accompanying documents contain information belonging to the sender which may be confidential and legally privileged. This information is intended only for the use of the individual or entity to whom this electronic mail transmission was sent, as indicated above. Any disclosure, copying, distribution, or action taken in reliance on the contents of the information contained in this transmission is strictly prohibited. If you have received this transmission in error, please delete the message and notify us by calling 303-297-2600 or emailing [email protected].

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March 2, 2021 Via E-mail: [email protected]

Cheryl Stevens, Clerk of the Colorado Supreme Court 2 E. 14th Ave. Denver, CO 80203

Re: EDI and CLE

Dear Ms. Stevens,

Continuing Legal Education (CLE) has been an excellent way for young lawyers to gain knowledge in relevant areas of practice and for experienced lawyers to stay on top of new statutes and case law.

I do not look to the CBAlCLE 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. Every lawyer has taken an oath that covers the basics of equity, diversity, and inclusivity (EDI).

In these challenging times, most lawyers in private practice would prefer and benefit more from seminars on technology and marketing.

Sincerely, ~~L Nathan L. Andersohn

NLA: kj

[NLN Lcncrs/ x-CheryIStevenS. IO IJ From: Angie Arkin To: stevens, cheryl Subject: REGULATIONS GOVERNING MANDATORY CONTINUING LEGAL AND JUDICIAL EDUCATION FOR THE STATE OF COLORADO Date: Monday, March 15, 2021 11:34:43 AM

Regarding the proposed changes to 103.1 to 105.1, I am strongly in favor of strengthening the professionalism education standards for Colorado judges and lawyers. I am especially in favor of the recommendations regarding education, diversity and inclusion education. So many of us know so little about folks who are different from us. The more we learn about “the other,” the less “other” they become. And the more we learn, the more we find out how much we don’t know. Our legal system, like our society, is filled with inequity. We all need lots of help seeing the inequities, even those of us who thought we did (or those of us who thought they no longer exist). Lawyers will be better lawyers and judges will be better judges when we are able to see the inequities in our society and in our legal system, so that we can work on addressing them in a positive way. The changes proposed to our CLE standards are a good start. Thanks, Angie Arkin Arbiter Judicial Arbiter Group, Inc. 1601 Blake Street, Suite 400 Denver, CO 80202 Phone 303-572-1919 Fax 303-571-1115 [email protected]

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PHIL WEISER RALPH L. CARR Attorney General COLORADO JUDICIAL CENTER

NATALIE HANLON LEH 1300 Broadway, 10th Floor Chief Deputy Attorney General Denver, Colorado 80203

ERIC R. OLSON Phone (720) 508-6000 Solicitor General

ERIC T. MEYER Chief Operating Officer STATE OF COLORADO Office of the Attorney General DEPARTMENT OF LAW

March 29, 2021

Cheryl Stevens Clerk of the Colorado Supreme Court 2 East 14th Avenue Denver, CO 80203

Re: Equity, Diversity, and Inclusivity CLE Requirement for Colorado Attorneys

Dear Ms. Stevens:

As Colorado’s Attorney General, I support the proposed amendments to Colorado’s professional rules that provide for a separate continuing legal education requirement that can be satisfied by programs addressing equity, diversity, and inclusivity and the mitigation of bias (“EDI CLE”). Tragic events that transpired last summer sparked a national discussion about racial injustice that renewed the call to address long standing inequities in our society. In recognition of our profession’s special responsibility to promote equity, access to justice, and the rule of law, leaders in our legal community came together to create the EDI CLE proposal.

The EDI CLE rule change will help all attorneys recognize the inequities and structural issues that contribute to the disproportionate outcomes and mistrust that undermine public confidence in our justice system. Adopting the rule will help modernize Colorado’s rules and allow our state to join the growing number of jurisdictions that recognize the need for a greater focus on this set of issues. The proposed rule aligns well with the Department of Law’s values and our deep commitment to diversity, equity, and inclusion in our legal system.

Colorado’s diversity is one of our greatest strengths. We proudly celebrate Governor Ralph Carr’s decision to refuse to intern Japanese Americans and our state’s decision to establish a holiday honoring Martin Luther King before the federal government did so. Because the EDI CLE proposal will help engage and raise important awareness among Colorado attorneys, I support this important proposed change to attorney education.

Sincerely,

Phil Weiser

Attorney General

From: John Baker To: stevens, cheryl Subject: Proposed Regulation Changes to Require Equality, Diversity and Inclusion Training as Mandatory Attorney Continuing Legal Education Date: Sunday, March 28, 2021 8:58:38 PM Attachments: image001.png image002.png image003.png oledata.mso 032821 Ltr to CSC Clerk Re EDI.pdf

Cheryl Stevens Clerk of the Colorado Supreme Court 2 E. 14th Avenue Denver, Colorado 80203

Dear Ms. Stevens:

Please accept this e-mail and the attached letter as my support for the Revisions of the Regulations Governing Mandatory Continuing Legal and Judicial Education for Colorado’s legal profession. As a licensed attorney in Colorado since 1973 – over the last 15 years, I have realized how my profession and the Colorado Judiciary does not reflect the demographics of the state. This diminishes the respect and belief in the profession and courts by much of the population as they do not see anyone that looks like them in the system.

Lawyers and judges need to understand the importance of equality, diversity, and inclusion in our system as they represent and adjudicate Colorado citizens. Mandatory EDI education will be a big step towards that understanding.

In addition, our oath as Colorado attorneys requires :

I do solemnly swear (or affirm) that:

I will support the Constitution of the United States and the Constitution of the State of Colorado; I will maintain the respect due to courts and judicial officers; I will employ such means as are consistent with truth and honor; I will treat all persons whom I encounter through my practice of law with fairness, courtesy, respect, and honesty; I will use my knowledge of the law for the betterment of society and the improvement of the legal system; I will never reject, from any consideration personal to myself, the cause of the defenseless or oppressed; I will at all times faithfully and diligently adhere to the Colorado Rules of Professional Conduct.

To be able to fulfill and live up to this oath all of us attorneys need to understand equality, diversity, and inclusion.

Sincerely,

John T. Baker

Cell: (720)272-7261 E-Mail: [email protected]

John T. Baker Attorney at Law 86 Newport Street Denver, Colorado 80230 E-mail: [email protected] Cell Phone: (720)272-7261

March 28, 2021

Cheryl Stevens Clerk of the Colorado Supreme Court 2 E. 14th Avenue Denver, Colorado 80203

Dear Ms. Stevens:

Please accept this as my support for the Revisions of the Regulations Governing Mandatory Continuing Legal and Judicial Education for Colorado’s legal profession.

As a licensed attorney in Colorado since 1973 – over the last 15 years, I have realized how my profession and the Colorado Judiciary does not reflect the demographics of the state. This diminishes the respect and belief in the profession and courts by much of the population as they do not see anyone that looks like them in the system.

In addition, our oath as Colorado attorneys requires: I do solemnly swear (or affirm) that: I will support the Constitution of the United States and the Constitution of the State of Colorado; I will maintain the respect due to courts and judicial officers; I will employ such means as are consistent with truth and honor; I will treat all persons whom I encounter through my practice of law with fairness, courtesy, respect, and honesty; I will use my knowledge of the law for the betterment of society and the improvement of the legal system; I will never reject, from any consideration personal to myself, the cause of the defenseless or oppressed; I will at all times faithfully and diligently adhere to the Colorado Rules of Professional Conduct.

John T. Baker Attorney at Law Page 2

To be able to fulfill and live up to this oath all of us attorneys need to understand equality, diversity, and inclusion.

If you need further information, please let me know.

Sincerely,

From: Robbie Barr To: stevens, cheryl Subject: Public comment CLE-EDI Date: Monday, March 29, 2021 3:07:28 PM

Ms. Stevens, I am a member of both The Colorado Bar and the Denver Bar Association. I write in support of the equity, diversity and inclusivity rule change because: 1. I would like Colorado to be on the forefront with those states that recognize the need for training our attorneys to be knowledgeable on EDI and cultural competence issues. 2. In my practice as a full time neutral, I continue to see the need for change and improvement. I myself have had the good fortune to have colleagues and friends who belong to the LGBTQ community, or who have different skin pigmentation that I do, or who have physical or mental limitations not of their own doing. These people have taught me of the additional challenges they face in courtrooms and in their law firms. Understanding those challenges, even just recognizing that they exist, has helped me improve as a service provider. Bringing these people to the table as full partners enhances our profession and makes us better people and better advocates. 3. To change, we all need to be educated about our blind spots. By embracing EDI education, we send a message to our colleagues and clients who experience racism, sexism, and other forms of bias: We see what is happening and we plan to stop it. 4. Implicit bias is especially insidious because we seldom recognize our unconscious filters and influences that reflects our socialization. EDI education exposes our bias and promps us to act on them. Thanks for considering my viewpoint.

Robbie Meripol Barr pronouns: she/her/hers

t: 303-579-1188 e: [email protected] Denver Centerpoint II 1777 South Harrison St. Suite 1504 Denver CO, 80210 www.barradr.com From: Virginia Bayless To: stevens, cheryl Subject: proposal to require regular diversity equity and inclusion training for Colorado judges and lawyers Date: Tuesday, March 16, 2021 1:31:24 PM

To whom it may concern: As a long time resident of Colorado, I strongly support the proposal to require diversity, equity and inclusion training for all Colorado judges and lawyers on a regular basis. Thank you. Virginia Bayless

Virginia Bayless 303-437-5007 [email protected]

From: Alexander Berry To: stevens, cheryl Subject: Comments on Proposed CLE Change Date: Thursday, March 4, 2021 10:06:36 AM

Cheryl, I'm not sure if I need to attach comments in a PDF or a Word document, let me know otherwise they are as follows.

'I would object to any CLE changes made to the CLE system, for the compliance periods that end in December 31, 2023. I am part of the compliance period. Last year I relied on the how the CLE system works and purchased a one years worth of a CLE Pass in the middle of 2020, used that one year pass to get the bulk of my CLEs done for the compliance period that ended December 31,2020 and now intend to complete my CLEs for compliance period ended I am sure I'm not the only one who may have or will complete the CLE requirements for the compliance period ending December 31, 2023, prior to any proposed change occurring, many of us have detrimentally relied on how the system operates in making these decisions. Any changes whether they be good or for in, should not occur until the compliance period ending December 31, 2024, where people have not yet started and perhaps finished their CLE credits for the period. I have not actually looked deeply into the proposed changes and considered them except to see that will will be a new type of class, of which there currently exists no classes, I may have further comments once I consider them more.'

-- Alexander Berry, Attorney and Counselor at Law

Damascus Road Law Group, LLC Helping People Along the Right Path

121 South Tejon, Suite #201 Colorado Springs Colorado, 80903

Phone: 719-425-2545 Fax: 719-352-3816

CONFIDENTIALITY NOTICE: This e-mail and any attached files contain information belonging to the sender and recipient listed above that may be confidential and/or legally privileged by the attorney-client privilege or the work product doctrine. This information is intended only for the use of the person to whom the e-mail was sent as listed above. If you are not the intended recipient, any disclosure, copying, distribution, or action taken in reliance on the contents of the information contained in this e-mail is strictly prohibited. If you have received this e-mail in error, please reply to this email, give notice of the error, and delete this message from your computer and network system.

Modification Disclaimer: Any modifications you make to any documents enclosed with this correspondence may change their legal significance, including their interpretation and enforceability. We are not responsible for any modifications made to these documents, which have not been approved by our office. We encourage you to consult with us regarding any proposed changes to the attached documents. From: [email protected] To: stevens, cheryl Subject: EDI Proposed Rule Change Date: Tuesday, March 16, 2021 3:59:52 PM

Good afternoon,

I am emailing in support of the proposed EDI CLE Rule Change. Colorado has always prided its self in leading the nation in many areas of the legal profession, but a statewide EDI CLE requirements is one area where we are behind the curve.

On its own, a modest EDI requirement is necessary to ensure basic education and understanding of equity diversity and inclusion issues that are facing members of the Colorado Bar. The protests and civil unrest that occurred over the past summer is illustrative of our society’s current struggles with race. This conversation has extended to the legal profession and even the bench. These recent public displays further support the need for an EDI CLE requirement in Colorado. Thank you.

Sincerely,

Jonathan R. Booker - President, Colorado Hispanic Bar Association HERNANDEZ & ASSOCIATES, P.C. 1801 York Street Denver, Colorado 80206 Telephone No. (303) 623-1122 Facsimile No. (303) 893-6116 Email: [email protected] ______The information contained in this electronic communication is attorney-privileged and confidential information intended only for the use of the individual or entity specifically named above. If you are not the intended recipient of this communication, you are hereby notified that any dissemination, distribution, copying or other use of this communication is strictly prohibited. If you have received this communication in error, please immediately notify us by telephone at (303) 623-1122 or e-mail at [email protected], and promptly delete this communication. Thank you.

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From: Brown, Adam (Denver Lawyer) To: stevens, cheryl Subject: Support of proposed EDI CLE Rule Change Date: Friday, March 26, 2021 3:47:02 PM

Hello Cheryl,

I am writing to voice my support of the proposed rule change to require 2 hours of EDI training for all Colorado attorneys as part of our CLE requirements. This proposed change is important to the future of the profession. It will increase public confidence in attorneys and the legal system as a whole, and I truly believe it will make us all better lawyers.

I sincerely hope the Colorado Supreme Court will adopt this proposed rule at its upcoming hearing. Please let me know if I can be helpful in any way. Thank you.

Adam Brown, Colorado Bar No. 47607

______

Adam Brown Director, Legal Counsel | Litigation and Regulatory Group

Tel (720) 201-3825 9800 Schwab Way DENR3-03-505 Lone Tree, CO 80124

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From: Brown, Jessica To: stevens, cheryl Subject: RE: Letter of support for revised Rule 250.2 Date: Monday, March 29, 2021 2:07:05 PM

And, Cheryl, I would like to be on record personally as well as supporting the statements in this letter from the CBA Executive Council as well as the separate submission from the President’s Diversity Council. I definitely think this is the right time for Colorado to adopt this modest mandatory CLE requirement for all practitioners relating to equity, diversity, and inclusivity (EDI), as quite a number of other states already have. These issues are extremely important to the Colorado Bar Association and to our broader legal community. Lawyers should be leaders with regard to EDI, and education is an important tool to assist lawyers to lead.

To me, the resistance to this proposal underscores the need for the educational requirement. That said, my understanding is that there is broad support for this proposal among members of the Colorado legal community.

I look forward to testifying in support of this proposed rule as well.

Best regards, Jessica Jessica Brown

GIBSON DUNN

Gibson, Dunn & Crutcher LLP 1801 California Street, Denver, CO 80202-2642 Tel +1 303.298.5944 • Fax +1 303.313.2831 [email protected] • www.gibsondunn.com

From: stevens, cheryl Sent: Thursday, March 25, 2021 12:16 PM To: Jessica Lindzy Cc: Brown, Jessica ; Amy Larson ; Dan Sweetser Subject: RE: Letter of support for revised Rule 250.2

[External Email] The letter has been received. Thank you.

From: Jessica Lindzy Sent: Monday, March 22, 2021 4:09 PM To: stevens, cheryl Cc: Jessica Brown ; Amy Larson ; Dan Sweetser Subject: Letter of support for revised Rule 250.2

Hello Ms. Stevens,

Please see attached a letter of support from the CBA Executive Council regarding revised Rule 250.2.

Thank you.

JESSICA LINDZY GOVERNANCE LIAISON & EXECUTIVE ASSISTANT COLORADO & DENVER BAR ASSOCIATIONS

1290 BROADWAY, STE. 1700 DENVER, CO 80203

303-824-5343 D 303-860-1115 O 303-860-0624 F COBAR.ORG | DENBAR.ORG

The Colorado & Denver Bar Associations and CBA-CLE will continue to offer virtual programming until further notice. Please see our CBA, DBA & CLE websites for the latest information. If you have a specific question, feel free to email us. Thank you for your engagement with the Bar Associations!

This message may contain confidential and privileged information for the sole use of the intended recipient. Any review, disclosure, distribution by others or forwarding without express permission is strictly prohibited. If it has been sent to you in error, please reply to advise the sender of the error and then immediately delete this message.

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Dear Members of the Colorado Supreme Court,

The Colorado Bar Association (“CBA”) strongly supports the adoption of revised Rule 250.2, which would require two hours of CLE related to equity, diversity, and inclusivity (the “EDI CLE”). The expansion of this rule to require two credit hours devoted to equity, diversity, and inclusivity is vital to addressing these issues as a profession.

The Mission Statement of the CBA includes:

The Colorado Bar Association (“CBA”) values its diverse membership and our communities. We are committed to the eradication of racism, discrimination, and any other form of injustice against underrepresented groups. We promote diversity, equity, inclusion, and the removal of barriers to success within the CBA and the communities we serve.

This statement reflects the CBA’s commitment to racial justice, equity, diversity, and inclusivity. The Oath of Admission taken by all Colorado attorneys states, “I will never reject, from any consideration personal to myself, the cause of the defenseless or oppressed.” Our legal profession is grounded on principles of equity, access to justice, and the betterment of society. The proposed rule is mission-critical for the CBA and our profession.

Over the last several months, the Presidents’ Diversity Council, which includes leadership from the CBA, Denver Bar Association, and every diversity bar in the state, committed significant work to advance the efforts, research, and conversation with regard to this proposed rule. We know that the only way to address systemic racism and institutional discrimination against all marginalized groups in the legal profession is through actions, not just words. To be clear, members of our profession experience racism, discrimination, and implicit bias every day and it is incumbent on us as a profession to do what we can to eradicate these insidious problems. The adoption of this proposed rule is meaningful action by the Colorado Supreme Court and our profession.

We are encouraged by the extremely positive response the CBA has received from its members with regard to the proposed rule. We also are inspired by the ABA as well as the many other states, including California, Minnesota, New York, Illinois, Missouri, Oregon, Maine, and New Jersey that have already adopted this type of requirement. Indeed, these important discussions and actions are occurring across our country and throughout our profession. Colorado is poised to be among the national leaders with regard to EDI CLEs.

The Colorado Supreme Court is making efforts to diversify the judiciary to make it more reflective of our entire community. The Colorado Supreme Court is undertaking significant outreach to address issues that relate to police misconduct and racial bias. The adoption of this proposed new rule will further the judiciary’s efforts with regard to equity, diversity, and inclusivity, not only in our profession, but for our entire community.

As individual lawyers and leaders, we continue to advance racial justice, equity, diversity, and inclusivity in our workplaces and other organizations. As a result of these continuing efforts, we now see greater

4852-1494-9857.1 discussion, engagement, and action on the part of attorneys across the State of Colorado in support of the values set forth in our Oath of Admission and the CBA’s Mission Statement. We have experienced unprecedented cooperation and collaboration among many Sections of the Bar and with Colorado’s diversity bars. This proposed rule will enhance that collaboration. Our Sections, committees, the diversity bars, local bar associations, and the Center for Legal Inclusiveness stand ready to present engaging new EDI CLEs to fulfill the proposed new requirements, many of which must be provided at low or no cost for our Colorado attorneys.

This proposed rule is indispensable for the professional development of attorneys throughout Colorado and will help equip those in our profession to be leaders in our communities. We are prepared to assist the Colorado Supreme Court in its implementation of this proposed rule and to facilitate positive change in our state’s CLE requirements and throughout our profession.

We strongly urge the Colorado Supreme Court to approve this important and fundamental new rule. Thank you for your consideration.

Sincerely,

The Colorado Bar Association Executive Council

4852-1494-9857.1 From: Loren M. Brown To: stevens, cheryl Subject: EDI CLE Rule Change Date: Monday, March 29, 2021 10:01:48 AM Attachments: image001.png image002.png 2016, May, Pg. 005.S05_085051.pdf

Good morning,

I am writing in support of the EDI CLE rule change.

I believe this rule change is absolutely necessary and long overdue. When I was President of the CBA (2015-2016), I wrote the attached article for the Colorado Lawyer, talking about the importance of Diversity and Inclusivity. The language used at the time had not evolved to the EDI language we are familiar with today, but speaks to the same issues. Much of the feedback received was very positive, mixed with a some negative feedback. However, many of the pieces of feedback should be labeled as misguided or uninformed.

My overall take away from the misguided or uninformed group was that there was a very basic, and prevalent, misunderstanding of the importance of Equity, Diversity, and Inclusion. Bluntly stated, most people do not understand what it is and why it is important. As a result, I have long thought that there needs to be more education amongst lawyers regarding EDI issues. The amendment of the CLE rules to require this important requirement will go a long way to help improve our profession and our society as a whole.

You are welcome to call if you have any questions or need further comment. 303-808-5337.

Loren

Loren M. Brown Ciancio Ciancio Brown, P.C. Direct: 303-865-5385 He/Him/His

Diversity and Inclusion Within Bar and Our Profession, 0516 COBJ, 2016, May, Pg. 5 /**/ div.c1 {text-align: center} /**/ 45 Colo.Law. 5 Diversity and Inclusion Within the Bar and Our Profession Vol. 45, No. 5 [Page 5] The Colorado Lawyer May, 2016 In and Around the Bar CBA President's Message to Members Diversity and Inclusion Within the Bar and Our Profession By Loren M. Brown. When I sat down to write this article, I struggled, pushing our editorial staff beyond frustration as I delayed delivery of the final version several times. I know in my heart why diversity and inclusion matter, but translating those feelings into writing is a difficult task. Upon great reflection, I concluded that the main reason I have this struggle is because I am a middle-aged white male, born and raised in the Denver suburbs. I cannot define diversity. I don't know what it means to be a diverse person. I have not suffered prejudice or been excluded because of my gender, ethnicity, sexual orientation, or birthplace. I have many diverse friends and colleagues, and I have heard many of their experiences. But where I fall short is actually knowing what it means to be a diverse person. I know of their experiences and struggles, but only on a superficial level. As a result, I cannot create meaningful diversity and inclusion on my own. What I can do as CBA president, however, is challenge all of our members to work with me to create meaningful diversity and inclusion within the bar and our profession. My Lesson in Diversity Most of us, if not all of us, value diversity, at least at a conceptual or aspirational level. It is something that we acknowledge is important to strive to achieve, and many of us work hard to find meaningful ways to diversify our practices and our profession and include diverse voices in our conversations. But we must dig deeper to achieve meaningful diversity and inclusion, and this begins with truly understanding why diversity matters. A key experience a few years ago helped me better understand the need for diversity and inclusion in the legal profession. After going through the CBA's Leadership Training Program (COBALT) in 2010, I was fortunate enough to be on the 2011 COBALT Programs Committee, which is tasked with organizing the program for the upcoming year. The main part of this task is securing speakers and setting agendas for the leadership training sessions. I was responsible for the first COBALT session, a three-day retreat to kick off the 2011 program. My fellow collaborators and I worked hard to develop a strong program, securing judges and high-profile attorneys and industry leaders to speak to the class. When our agenda was finalized, I presented it to former CBA Assistant Executive Director Dana Collier Smith, who ran the COBALT program. Dana took a few minutes to look over the agenda, studying the speakers and topics. She handed me back the agenda and said, 'This is an impressive lineup, but you don't have any female or other diverse attorneys as speakers. You have all white males presenting." I was struck dumb. Diversity is something I value very deeply and is one of the cornerstones of the COBALT program. Diversity was a key consideration in selecting the members of the class—a class that I helped handpick with that value at the center of the selection conversations. And here, when forming a program for the class, I had not once considered or thought about diversity. I defaulted to what was comfortable to me. I was set to teach from what I knew, to teach from how I had been taught. Neglecting diversity and inclusion issues in our day-to-day decision-making is a common pitfall that many of us unwittingly stumble into. When we need an opinion on diversity and inclusion, many of us can automatically come up with a handful of diverse attorneys to write articles or give presentations on the subject. But that does not serve to strengthen diversity or improve inclusion. Instead, it does the opposite: it further pigeonholes such attorneys into those roles. We often label diverse attorneys as the African-American attorney, the female attorney, the LGBT attorney, the Asian attorney, the Middle Eastern attorney, the Indian attorney, the Hispanic attorney, and so on. We miss who these individuals are at their core, where their talents actually lie, and how they can contribute substantively to any conversation. I challenge you to think instead of the talented business attorney, the attorney gifted at drafting wills and trusts, the tenacious litigator, the skilled corporate attorney, or the studious judge or magistrate. Stop thinking of these members of our profession only as diverse attorneys; think of them as excellent lawyers who have life experience that’s different from your own. It took Dana pointing out that I had fallen into an all-too-common pattern to realize why diversity matters. But once confronted with the issue, I was able to take a step back and work to create a more diverse agenda. And while my original lineup surely would have been well-received, it would not have been as successful as the final product. By actively focusing on diversity in forming the program, I was able to include very talented speakers who also happened to be diverse. Not only did those speakers provide deep substantive knowledge regarding leadership, but they also shared valuable perspectives and experiences that would have gone unheard had I gone with the speakers I originally selected for the program. Progressing from Mere Understanding to Meaningful Action I share this story because the mistake I made is repeated on a daily basis within the bar and our profession. And this speaks to why diversity and inclusion matter: at any given moment, there are hundreds of talented attorneys who are members of the bar and the profession who have perspectives and experiences that, if shared, will enrich us and raise the level of our practices, thereby improving the bar and profession as a whole. The barriers to those shared experiences are in place due to a lack of understanding. When we understand that these barriers are in place, and when we truly value the contributions that all members of our profession have to offer, we can then work toward meaningful diversity and inclusion. But understanding isn’t enough. We have to ensure that talented attorneys who also happen to be diverse are included in all that we do. When there is a need for a subject matter expert as a speaker for a CLE, an opening on the bench, a position within a law firm, an opening on a bar committee, or some other leadership position within the bar and beyond, we must encourage diverse attorneys to apply for those positions and help make their advancement possible. We must also work toward a culture of openness and acceptance—not just on paper but in practice. For example, a large firm can hire a large number of diverse attorneys, and it will seem diverse on paper, but that does not make the firm diverse, nor does it ensure that the diverse attorneys it hires feel welcome or are able to succeed there. Meaningful diversity and inclusion goes far beyond statistics. Firms must foster an environment where all attorneys are accepted and welcome, where they are supported and encouraged. When diverse attorneys are hired yet continue to feel like outsiders, the goal of diversity has not been met, even if it is an apparent success on paper. I mention this not to pick on big firms, but to provide an easy example of ways in which we can seemingly come close to achieving diversity and still fail. This happens not only in large firms, but also in bar associations (large and small) and throughout all aspects of our profession. For there to be meaningful diversity and inclusion, we must move beyond the numbers and focus on welcoming and advancing diverse attorneys within the profession. The Presidents’ Diversity Council During my term as president-elect, my conversations with then-President Charley Garcia often turned to the future of the bar. One of the topics we frequently discussed was how to create meaningful diversity within the profession. The CBA has a very active diversity committee and also works hard to support the specialty and minority bar associations, but we need to do more than just sponsor events and have CBA leadership attend dinners. As Charley and I discussed this issue, I wondered aloud why the CBA does not have a better connection to the specialty and minority bars beyond these limited contacts. At that moment, the idea for the Presidents’ Diversity Council was born. The Diversity Council comprises the CBA leadership and senior staff, as well as the presidents of the Colorado specialty and minority bar associations. We meet to find ways the CBA can help support the other bar associations, but more important, to work toward bringing about actual diversity and inclusion within the CBA and the rest of the profession. It is my goal to work toward policies, procedures, and best practices that foster a welcome and inviting environment within the CBA. This is just one small but important step toward truly meaningful diversity and inclusion within the CBA and the profession. In the months and years ahead, I hope to report the successes of these efforts. Challenging Ourselves to Do Better Diversity matters because shared perspectives and varied experiences make us all better, and in turn help us better serve our clients and community. I challenge each of you to be more mindful of diversity and inclusion in your day-to-day practice. I challenge you to avoid defaulting to outdated and counterproductive ways of thinking about diverse attorneys. I challenge you to invite those with experiences different from your own to the table and to enjoy the varied perspectives those lawyers add to the conversation. I challenge myself to do the same. From: Marfowaa-Nuako, Amma To: stevens, cheryl Cc: Metzl, Alexandra F.; Fitzgerald, Martha L.; Trammell, Margaux; Bates, Georgianne M. Subject: Brownstein Hyatt Farber Schreck Response to Proposed Colorado CLE Rule Changes Date: Friday, March 26, 2021 2:25:45 PM

Good afternoon Cheryl,

Below is our firm response to the proposed Colorado CLE rule change. Kindly reach out with questions.

The proposed mandatory Colorado diversity, equity and inclusivity (DEI) requirements for continuing education credit is a step forward in creating change on the topic of racial justice and gender equity. At Brownstein Hyatt Farber Schreck we are committed to help lead the way in embedding DEI practices in our professional development program by offering attorneys and policy professionals trainings to identify biases and microaggressions, lead inclusively and engage sponsors for career growth. To cultivate a diverse workforce, we recognize the need to empower our team members with tools to challenge biases, structural issues and address disparities within their practice. These tools have helped us have richer conversations throughout our firm, which ultimately translates to more equitable representation to meet our clients' needs and fosters a deeper partnership with our local communities. We support and welcome the CBA's addition of DEI continuing education credits to increase diversity and inclusiveness within the legal industry. Ali Metzl, Chair of Diversity, Equity & Inclusion Martha Fitzgerald, Pro Bono Partner and Law Firm Antiracism Alliance board member Margaux Trammell, Director of Professional Development Georgianne Bates, Professional Development Manager Amma Marfowaa-Nuako, Diversity & Inclusion Specialist

Amma Marfowaa-Nuako Diversity & Inclusion Specialist Brownstein Hyatt Farber Schreck, LLP 410 Seventeenth Street, Suite 2200 Denver, CO 80202 303.223.1548 tel [email protected]

STATEMENT OF CONFIDENTIALITY & DISCLAIMER: The information contained in this email message is attorney privileged and confidential, intended only for the use of the individual or entity named above. If the reader of this message is not the intended recipient, you are hereby notified that any dissemination, distribution or copy of this email is strictly prohibited. If you have received this email in error, please notify us immediately by calling (303) 223-1300 and delete the message. Thank you. From: Doris Burd To: stevens, cheryl Subject: Amendment of Rule 250.2 Date: Sunday, March 28, 2021 7:15:32 AM

I strongly endorse the amendment requiring equity, diversity, and inclusivity education as part of CLE. Although It is a small step to address a pervasive problem in society as well as the legal profession, we must begin the journey. Doris E. Burd Retired Denver County Court Judge

Sent from my iPad

March 29, 2021

Colorado Supreme Court 2 E 14th Ave. Denver, CO 80203

VIA E-MAIL

Dear Chief Justice Boatright and Associate Justices:

We write in opposition to the proposed amendment that would convert two of the required seven ethics CLE credits to courses on “equity, diversity, and inclusivity.” Despite the seemingly harmless language of the proposal, this change would degrade, rather than improve, Colorado’s justice system. We have two main concerns: first, that a focus on “equity,” rather than “equality,” is corrosive to any system of justice; second, that this new requirement does not actually respond to the demonstrated ethics failures of Colorado attorneys. “Equity,” as used in this context, focuses solely on outcomes. (Certainly, “equity” can have other meanings, but the coordinate changes to the CLE approval regulation make the outcome-oriented interpretation plain.) Our legal system, though, is built on the ideas that every man great or small will get equal treatment in a court of law and that, in the long run, justice comes from the fair, consistent application of predictable standards. Indoctrinating lawyers in an outcome- oriented view would destroy this system of law—which has sustained our nation for nearly 250 years—by reducing every issue to solely a question of whose ox is being gored. Its inevitable result will be a degraded, untrustworthy system where Lady Justice has not only removed her blindfold but is putting a thumb on the scale while she’s at it. This outcome-based perspective also puts the bar behind the idea—currently faddish in certain circles, but repeatedly discredited by history and human experience—that members of certain groups have identical perspectives, experiences, and characteristics, and should be dealt with based on that presumed identity. This has been the basis of much error and sorrow in human history. Experience teaches us that such views heighten inequality rather than alleviating it. We also have a hard time squaring this proposal with the demonstrated ethical failings of Colorado attorneys. If the disciplinary summaries in Colorado Lawyer are any guide, there is no sudden rash of ethics violations related to “equity, diversity, and inclusivity.” Were this a proposal to require financial management classes, resiliency efforts, time-management training, or substance abuse education, then it would make some sense. Nearly every ethics problem that gets reported is connected to one of these issues in some way. The present proposal, however, is unconnected to the ethics issues that plague the bar. To reduce the ordinary ethics 98 WADSWORTH BOULEVARD #127-3071 • LAKEWOOD, COLORADO 80226 requirement and replace it with the present proposal, therefore, further smacks of an ideological agenda impervious to the demonstrated facts on the ground. To be clear, we have no beef with equality. Each of us has spent most of our careers fighting for equal justice under the law. We thirst for equality, and work every day to promote a more just and equal world. What we have a problem with is a government mandate that would place the prestige and power of this Court behind an idiosyncratic view of the “right” outcomes. If individual members of the bench or bar want to promote such a view in their own private actions, they have every right to do so. But to require every attorney in Colorado to submit himself to an indoctrination in those contested views is too much. We urge you to reject this change.

Yours Sincerely,

DaDDanielaninielel EE.. BuBurrowsrrrowo s LlDitLegal Director Public Trust Institute

David B. Kopel Research DirectoDirector,r, InIndependencedependen Institute AdAdjunctjunct Prof. of ConstitutionaConstitutional Law, University of Denver, Sturm College of Law (O(Organizationsrganizations listed for identificationidentif only.)

RRachelachel Lee NeumannNeumann AAttorneyttorney in PPrivaterivate PPracticeractice

Page 2 of 2 From: Jennifer Carty To: stevens, cheryl Subject: Comment in support of the EDI CLE rule change Date: Tuesday, March 23, 2021 6:48:02 PM

Ms. Stevens: I am proud to be supporting the equity diversity and inclusivity rule change for Continuing Legal Education in Colorado. As Colorado attorneys, we swore to treat all persons whom we encounter through the practice of law with fairness, courtesy, respect and honesty. To fulfill that promise, I firmly believe in the education and open discourse that this mandatory CLE requirement creates. Such a commitment will enhance our cultural competency and empathy in working with people from every background and can only serve to better our profession. Engaging practitioners on EDI issues will move us forward as a profession for the communities we serve and help all attorneys foster better relationships with our staff, our clients, our colleagues, opposing counsel, and members of the public. This is the way to put action to the anti-racist, inclusive, and egalitarian stance the Colorado Judicial Department and bar community have taken in pleading to make our profession more equitable, for our judiciary to reflect all partso our society, and to actively address issues of systemic racism and discrimination. Sincerely, Jennifer Carty Registration No. #48991

March 25, 2021

Colorado Supreme Court Continuing Legal and Judicial Education Committee 1300 Broadway, Suite 510 Denver, Colorado 80203

Ref: Proposed EDI CLE Requirement

To whom it may concern:

We are concerned that the EDI-based CLE requirement constitutes compulsory political association and speech which the U.S. Supreme Court has recognized as being prohibited by the U.S. Constitution. See, e.g., W. Va. Bd. of Educ. v. Barnette, 319 U.S. 624, 642, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943), and Janus v. American Federation of State, County & Municipal Employees, 138 S. Ct. 2448; 201 L. Ed. 2d 924 (2018).

Exactly one month ago, a significant decision entered in Crowe v. Oregon State Bar, 989 F.3d 714 (9th Cir. 2/26/21). Lawyers who were members of the Bar filed related lawsuits against the Bar and individual Bar officials, alleging, inter alia, that its compelled membership and membership fee requirements violated their First Amendment rights. Held:

2. Plaintiffs' free association claim is viable.

…The First Amendment protects the basic right to freely associate for expressive purposes; correspondingly, “[t]he right to eschew association for expressive purposes is likewise protected.” Janus, 138 S. Ct. at 2463 (citing Roberts v. U.S. Jaycees, 468 U.S. 609, 623, 104 S.Ct. 3244, 82 L.Ed.2d 462 (1984)). Freedom from compelled association protects two inverse yet equally important interests. First, it shields individuals from being forced to “confess by word or act their faith” in a prescriptive orthodoxy or “matters of opinion” they do not share. W. Va. Bd. of Educ. v. Barnette, 319 U.S. 624, 642, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943). Second, because “[e]ffective advocacy of both public and private points of view, particularly controversial ones, is undeniably enhanced by group association,” NAACP v. Ala. ex rel. Patterson, 357 U.S. 449, 460, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958), freedom from compelled association checks the power of “official[s], high or petty, [to] prescribe what [opinions] shall be orthodox.” Barnette, 319 U.S. at 642, 63 S.Ct. 1178. In short, like the “freedom of belief,” freedom from compelled association “is no incidental or secondary aspect of the First Amendment's protections.” Abood, 431 U.S. at 235, 97 S.Ct. 1782.

989 F.3d 714 (page number unavailable).

The asserted basis for the proposed requirement, as articulated by Colorado Lawyer articles, consists of claims of “systemic racism” and related ideas, such as critical race theory. See, e.g., C. Hernández & A. Martínez, Leading the Way to a Diversity-Focused CLE Requirement, Colo. Law., Vol. 49, No. 11, 4, 7 (Dec. 2020) (“The escalation of violence and greater access to information regarding racial injustice has left attorneys seeking ways to dismantle systemic racism in our society.”)

Many of these associated claims are legally and factually debatable. See generally, D. Subotnik, What's Wrong with Critical Race Theory, 7 Cornell Journal of Law and Public Policy 681.

Global commentators of all races have called into question the EDI agenda , see generally Critical Race Theory: On The New Ideology Of Race https://www.manhattan- institute.org/critical-race-theory-new-ideology-race, as have equally diverse commentators abroad, https://www.independent.co.uk/voices/comment/why-we-should-question-term- institutional-racism-10119000.html. Lawyers in Canada who were subjected to required adherence to the debatable rationales on which the proposed EDI CLE requirement is based successfully challenged the requirements. See, e.g., This lawyer was determined to stop the law society’s forced ‘statement of principles’, https://nationalpost.com/opinion/this-lawyer-was- determined-to-stop-the-law-societys-forced-statement-of-principles/wcm/b8741dc1-5894-4e0e- 8777-fb6af5b2badc

“Diversity and inclusion” necessarily mean excluding those who object to a particular ideological uniformity.

Ms. Hernández and Ms. Martínez elaborate that “EDI programs in Colorado would address . . .anti-racism . . .. Specifically, anti-racism programming would touch . . . systematic racism in our legal system and how to dismantle it . . ..” Id. p.6, 7. “Systemic racism” is not defined, and no evidence is offered to support its claimed existence in our legal system.

In contemporary usage, the term “anti-racism” has often been co-opted by Marxist theorists. See, e.g., Camfield, David. Review of Theorizing Anti-Racism: Linkages in Marxism and Critical Race Theories ed. by Abigail B. Bakan and Enakshi Dua. Labour / Le Travail, vol. 76, 2015, p. 293-295, https://muse.jhu.edu/article/601782.

The term was given popular currency by Ibram Kendi’s 2019 book How to be an Anti- Racist. Kendi's definition of racist is "One who is supporting a racist policy through their actions or inaction or expressing a racist idea," i.e.., he uses the word "racist" twice to define the word "racist”, which readers should recognize as a circular definition. The central idea of this form of “anti-racism” is that all racial groups are equal (with which the undersigned fully agree! see, e.g., the Declaration of Independence), but then concludes that any inequality in outcome is proof of racism, and any policy that arguably might have contributed to that inequality of outcome is racist This does not make sense. If inequality is due to racism, how can we explain inequalities within racial groups? . Under this “anti-racism” theory, justice becomes dependent upon group identity and not individual fairness.

The concept of “equity” is equally controverted because it does not mean equality before the law, as required by the Constitution, to which all lawyers swear an oath. Rather, “equity” in this polemic setting means equality of outcome. Therefore, “equity” necessarily means and even requires treating persons unequally in order to achieve an ideological correct outcome. This is inimical to the fundamental freedoms on which our society is based. As Milton Friedman said, “A society that puts equality before freedom will get neither. A society that puts freedom before equality will get a high degree of both.”

Therefore, the proposed CLE classes, which contemplate lawyers being required to sit silently while they are lectured as to matters with which they disagree, even if they are not required to express agreement therewith, constitutes compelled political speech proscribed by the United States and Colorado Constitutions. See generally, Janus: “As noted, Jefferson denounced compelled support for such beliefs as ‘ ‘sinful and tyrannical,’ ’ . . ..” 138 S.Ct. at 2464, 2471. See also, Greenberg v. Haggerty, 2020 WL 7227251 *8 (E.D. Pa. 12/08/2020), appeal dismissed, 20-3602 (3rd. Cir. 3/17/21)(amendments to Pennsylvania rules of professional conduct rule proscribing “words [that] ... manifest bias or prejudice,” constituted viewpoint- based discrimination in violation of the First Amendment; motion for preliminary injunction granted).

A case currently pending in Nevada, arising from compulsory EDI-type educational requirements is worthy of study by those considering imposition of EDI curricula upon Colorado lawyers as a precondition of the practice of law. Please refer to the attached Complaint in Gabrielle Clark v. State Public Charter School Authority et al., 2:20-cv-02324 (D. Nev.).

In Clark, the defendant school authorities required the biracial child William Clark and other students to take a “Sociology of Change” course as a condition of graduation. The Course required William and his fellow students to reveal and make professions about their gender, sex, religious and racial identities. It should be noted that the course that William was required to undergo is typical of the syllabi of training courses sold by the diversity industry. See., e.g., https://www.racialequitytools.org/resources/act/strategies/training-and-popular-education.

William Clark’s and the Oregon State Bar cases are in the early stages of litigation. Those cases, Barnette, Greenberg v. Haggerty, Janus, and other cases bear careful study and consideration before imposing EDI requirements on Colorado lawyers.

Respectfully,

S/ Roger T. Castle ______Roger T Castle, No. 7621 7375 E. Orchard Rd. Ste 300 Greenwood Village, CO 80111 [email protected] 303-839-8251

______James E. Gigax, No. 10496 2921 W. 38th Ave, No.240 Denver, CO 80211 [email protected] 720.335.1616

Enclosure: copy of complaint from Gabrielle Clark v. State Public Charter School Authority

Case 2:20-cv-02324-RFB-VCF Document 1 Filed 12/22/20 Page 1 of 39

1 Marquis Aurbach Coffing Brian R. Hardy, Esq. 2 Nevada Bar No. 10068 10001 Park Run Drive 3 Las Vegas, Nevada 89145 Telephone: (702) 382-0711 4 Facsimile: (702) 382-5816 [email protected] 5 Jonathan O’Brien, NYB No. 5043369 6 (Pending Admission Pro Hac Vice) Law Office of Jonathan O’Brien 7 Telephone: (646) 308-1689 43 W. 43rd St, Suite 002 8 New York, NY 10036 [email protected] 9 Attorneys for Plaintiffs William Clark and Gabrielle Clark 10 UNITED STATES DISTRICT COURT 11 DISTRICT OF NEVADA

12 GABRIELLE CLARK,

5816 Case No. -

COFFING 13 individually and as parent and

guardian of WILLIAM CLARK PLAINTIFFS’ COMPLAINT

(702) 382 (702) 14 and WILLIAM CLARK, individually, FOR INJUNCTIVE RELEIF, 15 DECLARATORY RELIEF, Plaintiffs AND DAMAGES 0711 FAX: FAX: 0711 - 16 10001 Park Run Drive Run Park 10001

Las Vegas, Nevada 89145 Nevada Las Vegas, v. ) 382 ) 17 702

( STATE PUBLIC CHARTER SCHOOL 18 AUTHORITY, DEMOCRACY PREP (JURY TRIAL DEMANDED)

MARQUIS AURBACHMARQUIS PUBLIC SCHOOLS, DEMOCRACY PREP 19 PUBLIC SCHOOLS, INC., DEMOCRACY PREP at the AGASSI CAMPUS, 20 DEMOCRACY PREP NEVADA LLC, SCHOOL BOARD of Democracy Prep at 21 the Agassi Campus, NATASHA TRIVERS individually and in her official capacity as 22 Superintendent and CEO, ADAM JOHNSON, individually and in his official 23 capacity as Executive Director and Principal, KATHRYN BASS individually 24 and in her capacity as Teacher, JOSEPH MORGAN, individually and in his official 25 capacity as Board Chair, KIMBERLY WALL individually and in her capacity as 26 assistant superintendent, and John & Jane Does 1-20 27 Defendants. 28 Page 1 of 39 MAC:00002-216 4234620_2 12/22/2020 3:51 PM

Case 2:20-cv-02324-RFB-VCF Document 1 Filed 12/22/20 Page 2 of 39

1 Plaintiffs Gabrielle Clark individually and as parent and guardian of William Clark

2 and William Clark individually by and through their attorneys of record, the law firm of 3 Marquis Aurbach Coffing, allege and complain as follows:

4 NATURE OF ACTION

5 A. ASSERTING INTEGRITY OF CONSCIENCE AGAINST STATE DISCRIMINATION AND COERCION 6 1. Plaintiff, William Clark, brings suit for injunctive relief and damages against 7 Defendants for repeatedly compelling his speech involving intimate matters of race, gender, 8 sexuality and religion. Defendants compelled Plaintiff William Clark to make professions 9 about his racial, sexual, gender and religious identities in verbal class exercises and in graded, 10 written homework assignments which were subject to the scrutiny, interrogation and 11 derogatory labeling of students, teachers and school administrators. By directing Plaintiff

12 William Clark to reveal his identities in a controlled, yet non-private setting, to scrutiny and 5816 -

COFFING 13

official labeling, Defendants were and still are coercing him to accept and affirm politicized

(702) 382 (702) 14 and discriminatory principles and statements that he cannot in conscience affirm. Defendants 15 “invade the sphere of intellect and spirit which it is the purpose of the First Amendment to our 0711 FAX: FAX: 0711 - 16 10001 Park Run Drive Run Park 10001 Las Vegas, Nevada 89145 Nevada Las Vegas,

) 382 ) Constitution to reserve from all official control.” West Virginia State Board of Education v. 17 702 ( Barnette, 319 U.S. 624. Defendants repeatedly threatened William Clark with material harm 18

MARQUIS AURBACHMARQUIS including a failing grade and non-graduation if he failed to comply with their requirements. 19 When he declined to participate in these confessional exercises and assignments, Defendants 20 rejected his requests for reasonable accommodation and acted on their threats. Defendants’ 21 coercive and intrusive behavior compelled William Clark’s protected speech and invaded his 22 privacy, violating his constitutional rights under the First Amendment and his due process 23 rights under the Fourteenth Amendment. 24 2. Plaintiff, Gabrielle Clark, a black woman, is William Clark’s mother and only 25 living parent guardian. William’s father, now deceased, was a white man and an attorney. 26 Plaintiff Gabrielle Clark brings suit on her own behalf and asserts her Fourteenth Amendment 27 substantive due process right to family integrity and autonomy, which the Defendants 28 Page 2 of 39 MAC:00002-216 4234620_2 12/22/2020 3:51 PM

Case 2:20-cv-02324-RFB-VCF Document 1 Filed 12/22/20 Page 3 of 39

1 deliberately threatened and undermined in word and deed, directing her son in class to

2 “unlearn” the basic Judeo-Christian principles she imparted to him, and then retaliated against 3 her son with a failing grade and threats of non-graduation when he declined to participate. 4 Parents possess a right and covenant to guide and direct the upbringing of their children, and 5 courts have repeatedly honored and upheld this right. See Troxel v. Granville, 530 U.S. 57, 66 6 (2000) (O’Connor, J., plurality); see also Meyer v. Nebraska, 262 U.S. 390, 401-02 (1923) 7 (upholding the "power of parents to control the education of their own.") 8 3. Defendants, who include a state funded and sponsored charter school, teachers

9 and senior administrators, have deliberately created a hostile educational environment for 10 Plaintiff William Clark, who, unlike his classmates appears to be and is regarded by his peers

11 as white. Defendants thus discriminated on the basis of race and color, in addition to sex,

12 gender and religion, in violation of Title VI and Title IX of the Education Amendments of 5816 -

COFFING 13 1972, 20 U.S.C. §§ 1681 et seq. As Gabrielle Clark told Defendants in a meeting seeking

(702) 382 (702) 14 accommodation, “you put a bullseye on my son’s back.” The following illustration is copied

15 directly from Defendant school’s mandatory class material annexed hereto as Exhibit A and 0711 FAX: FAX: 0711 - 16 10001 Park Run Drive Run Park 10001 exemplifies the glib discriminatory tone of the compulsory instruction: Las Vegas, Nevada 89145 Nevada Las Vegas, ) 382 ) 17 702 ( 18 MARQUIS AURBACHMARQUIS 19 ERSE RIWISM 20 IL • • EMI.. 21 22

24 . • I. 25 Atit% 26 DOES off 27 28 Page 3 of 39 MAC:00002-216 4234620_2 12/22/2020 3:51 PM

Case 2:20-cv-02324-RFB-VCF Document 1 Filed 12/22/20 Page 4 of 39

1 B. RELIEF REQUESTED 2 4. William Clark’s graduation from high school has been threatened and his 3 academic performance has already been unjustly harmed. He and his mother Gabrielle Clark, 4 whose hopes are fully invested in her son’s wellbeing and prospects, seek emergency 5 injunctive relief for reasonable accommodation, as ongoing harm done and threatened to be 6 done by Defendants is irreparable, and pray the Court declare Defendants’ behavior in 7 violation of the First and Fourteenth Amendments to the United States Constitution, 42 U.S.C. 8 § 1983, and Title VI of the Civil Rights Act and Title IX of the Education Amendments of

9 1972, 20 U.S.C. §§ 1681 et seq. 10 5. Plaintiffs also seek monetary damages, including compensatory and punitive

11 damages, for the damage done to William Clark’s future academic and professional prospects,

12 and for the Defendants’ deliberate and protracted harassment, emotional abuse, and violation 5816 -

COFFING 13 of Plaintiffs’ Constitutional Rights.

(702) 382 (702) 14 JURISDICTION AND VENUE 15 6. This action arises under 42 U.S.C. § 2000d, et seq. and 42 U.S.C. §1983. This 0711 FAX: FAX: 0711 - 16 10001 Park Run Drive Run Park 10001 Court has subject matter jurisdiction under 28 U.S.C. §§ 1331 and 1343. Las Vegas, Nevada 89145 Nevada Las Vegas, ) 382 ) 17 7. Venue is proper in the District of Nevada under 28 U.S.C. §1391 because the 702 ( 18 events giving rise to the claims detailed herein occurred in the District of Nevada, and all MARQUIS AURBACHMARQUIS 19 Defendants do business there. Defendants Democracy Prep Public Schools and Democracy 20 Prep Public Schools Inc. and associated individuals are interstate actors headquartered in 21 Manhattan.

22 THE PARTIES

23 A. PLAINTIFFS 24 8. Plaintiff William Clark is in the 12th grade at Democracy Prep at the Agassi 25 Campus (DPAC), formerly Andre Agassi College Preparatory Academy, where he first

26 enrolled six years ago. He has been there much longer than Defendants, who took over 27 management and control of the Agassi Campus three years ago. William is hoping to attend 28 college to study music. William resides in Clark County, Nevada with his Mother, Gabrielle Page 4 of 39 MAC:00002-216 4234620_2 12/22/2020 3:51 PM

Case 2:20-cv-02324-RFB-VCF Document 1 Filed 12/22/20 Page 5 of 39

1 Clark, in transitional housing with two siblings, both of whom are black. William’s father is

2 deceased. 3 9. Gabrielle Clark is a single mother and guardian of three children, two of whom 4 are school age, including William Clark. She has brought up her children according to 5 traditional Judeo-Christian principles, including the proposition that every person is unique 6 and equal before the eyes of God and will be judged by the content of their character rather 7 than the color of their skin. Ms. Clark is temporarily disabled and unemployed, but is active 8 in her children’s education, having secured for them coveted admissions to public charter

9 schools in the Las Vegas area, specifically Clark County.

10 B. DEFENDANTS

11 10. Defendant State Public Charter School Authority [“SPCSA”] characterizes

1 12 itself as a “local education agency.” SPSCA certifies, authorizes, screens and monitors 5816 -

COFFING 13 DPAC, and recently renewed its contract with Defendants DPAC, Democracy Prep Nevada

(702) 382 (702) 14 LLC, and Democracy Prep at the Agassi Campus School Board in the contract annexed hereto. 15 The contract requires DPAC to notify SPCSA of any violations in its contractual obligations, 0711 FAX: FAX: 0711 - 16 10001 Park Run Drive Run Park 10001 and SPSCA must in turn direct corrective action. SPCSA conducts site visits and evaluations, Las Vegas, Nevada 89145 Nevada Las Vegas, ) 382 ) 17 including of curriculum and grading changes at DPAC. SPSCA’s acquiescence and deliberate 702 ( 18 indifference to DPAC’s discriminatory and unconstitutional acts and curriculum MARQUIS AURBACHMARQUIS 19 programming amounts to practice and custom with regards to the constitutional violations 20 discussed herein. 21 11. Defendant Democracy Prep Public Schools (DPPS) describes itself as a public 22 charter school network and is organized under the laws of the State of New York. DPPS is

23 headquartered at 1767 Park Avenue, 4th & 5th Floor, in Manhattan. In its IRS Form 990 for 24 fiscal year ending in 2018, DPPS describes itself as a “charter management organization 25 providing educational services, management operations and fundraising activities” for charter 26 27

1 28 See Contract, attached hereto as Exhibit B. Page 5 of 39 MAC:00002-216 4234620_2 12/22/2020 3:51 PM

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1 schools including DPAC in Nevada.2 As a public educational institution and recipient of

2 federal and state funds, DPPS has a duty to enforce the United States Constitution and state 3 law by not enacting, imposing, operating, or maintaining policies, operations, or goals that 4 discriminate against or grant preferential or detrimental treatment to any individual or group 5 on the basis of race, sex, color, religion, ethnicity or national origin. Defendants’ curriculum 6 programming involving invasion of privacy, public disclosure of private, intimate facts, 7 compelled speech and discrimination was generated by DPPS in New York and amounts to 8 custom and practice.

9 12. Defendant Democracy Prep at Agassi Campus (DPAC) is a K-12 member 10 school of the DPPS network. DPAC is located in Clark County, Nevada. DPAC receives and

11 benefits from federal and state financial assistance. DPAC claims that it relies entirely on

12 public funds — in 2018 about $5,700 per pupil from the state and federal funds. DPAC has 5816 -

COFFING 13 utilized and expended public monies to implement its unconstitutional “civics” programming

(702) 382 (702) 14 in violation of the United States Constitution, Title VI, Title IX and Nevada State Law. DPAC 15 is also obligated to adhere to Title VI in its contract with Defendant SPCSA. 0711 FAX: FAX: 0711 - 16 10001 Park Run Drive Run Park 10001 13. Defendant Democracy Prep Public Schools, Inc. is the only managing member Las Vegas, Nevada 89145 Nevada Las Vegas, ) 382 ) 17 of Defendant Democracy Prep Nevada LLC whose executive director is DPAC Principal 702 ( 18 Adam Johnson. MARQUIS AURBACHMARQUIS 19 14. Defendant Democracy Prep Nevada LLC is a legal entity registered under the 20 laws of Nevada, and the contract between it and the SPCSA describes it is a separate entity 21 from the DPAC charter school itself.3 This legal entity was first registered on February 13, 22 2017 under the legal form of Domestic Limited-Liability Company registered in the state of

23 Nevada. The company is categorized under Public Combined Elementary and Secondary 24 School. Current estimates show this company has an annual revenue of $80,555 and employs 25 26 2 https://projects.propublica.org/nonprofits/organizations/202629354/201921429349301972/IRS990 27 3 http://charterschools.nv.gov/uploadedFiles/CharterSchoolsnvgov/content/News/2020/200626- 28 Democracy-Prep-at-Agassi-Contract-draft-5-21-20-clean.pdf Page 6 of 39 MAC:00002-216 4234620_2 12/22/2020 3:51 PM

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1 a staff of one, who is Defendant Adam Johnson. Democracy Prep Nevada LLC has one listed

2 managing member, Democracy Prep Public Schools, Inc.4 3 15. DPAC School Board [School Board] is the “final authority in matters affecting 4 [DPAC] and responsibility for the academic, financial, and organizational performance…and 5 curriculum.”5 The DPAC School Board is a unique entity with final oversight of DPAC 6 operations, curriculum and disciplinary matters, and is duty bound according to its contract 7 with Defendant SPCSA to ensure non-discrimination in accordance with Title IX and VI and 8 federal and state law. Defendant Joseph Morgan is Chair of DPAC School Board. Defendant

9 School Board acquiesced and was deliberately indifferent to the civil rights abuses inflicted 10 on Plaintiffs and affirmatively approved as policy the coercive, invasive, and discriminatory

11 curriculum programming.

12 16. Defendant Kathryn Bass is a teacher and employee at DPAC. She teaches and 5816 -

COFFING 13 grades the compulsory “Sociology of Change” class in which William Clark was enrolled,

(702) 382 (702) 14 and she required William Clark and his fellow students to reveal and make professions about 15 their gender, sex, religious and racial identities, and subjected those professions to public 0711 FAX: FAX: 0711 - 16 10001 Park Run Drive Run Park 10001 interrogation, scrutiny and derogatory labeling as part of a curriculum designed, promoted and Las Vegas, Nevada 89145 Nevada Las Vegas, ) 382 ) 17 implemented by DPPS and its CEO and Superintendent Natasha Trivers. Defendant Kathryn 702 ( 18 Bass terminated class discussion when Plaintiff William Clark and other students sought to MARQUIS AURBACHMARQUIS 19 engage critically with Defendants’ class material and programming that assigned character 20 attributes on the basis of race, sex and gender. She also failed Plaintiff William Clark for the 21 class at issue, and penalized him for not completing graded identity confession assignments. 22 17. Defendant Adam Johnson is the school principal of DPAC and its Executive

23 Director and Executive Director at Democracy Prep Nevada LLC. He personally oversees and 24 implements curriculum and discipline at DPAC, and threatened a failing grade and non- 25 graduation upon William Clark and his mother on multiple occasions if William Clark did not 26

4 27 http://www.buzzfile.com/business/Democracy-Prep-Nevada-LLC-702-948-6000 5 28 See Exhibit B at page 7. Page 7 of 39 MAC:00002-216 4234620_2 12/22/2020 3:51 PM

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1 participate in the “Sociology of Change” instruction sessions featuring compelled speech,

2 viewpoint discrimination, invasion of privacy and patent discrimination. Defendant Adam 3 Johnson delivered on his threats, ruining Plaintiff’s good college prospects built on years of 4 hard work and a strong GPA, conferring a D- on Plaintiff William Clark for the class, even 5 though DPAC’s Handbook states “Democracy Prep does not give Ds.”6 6 18. Defendant Natasha Trivers is the new CEO of DPPS and DPPS Inc. and 7 Superintendent of all 21 affiliated member schools, including DPAC in Nevada. She 8 personally oversees staffing, design and implementation of curriculum nationally, including

9 the Civics Program of which the course at issue, “The Sociology of Change” and its tandem 10 “Change the World” project is a part. She has publicly encouraged Democracy Prep students

11 to think for themselves and “push back” against DPPS school policies if students found them

12 to be unjust, however she retaliated against William Clark and his mother when they did just 5816 -

COFFING 13 this and asserted their constitutional rights in seeking reasonable accommodation from

(702) 382 (702) 14 Defendants. Defendant Kimberly Wall stated that Defendant Natasha Trivers was aware and 15 intimately involved in every action taken by Defendants towards Plaintiffs concerning the 0711 FAX: FAX: 0711 - 16 10001 Park Run Drive Run Park 10001 “civics” class and programming at issue. Las Vegas, Nevada 89145 Nevada Las Vegas, ) 382 ) 17 19. Defendant Kimberly Wall is assistant superintendent of DPPS in New York 702 ( 18 City, had knowledge of and personally supported, implicitly and directly, in meetings and MARQUIS AURBACHMARQUIS 19 correspondence with Plaintiffs, the above-described policy and subsequent coordinated 20 retaliation against Plaintiffs. In at least two meetings with Plaintiffs and counsel Defendant 21 Kimberly Wall refused reasonable accommodation, refused to repair the failing grade awarded 22 to William for the class at issue and would give no assurances that future mandatory class

23 programming would not involve identity confessions and labeling in class or in graded 24 homework assignments. 25 20. Defendant Joseph Morgan is Chair of the School Board at DPAC and a

26 Professor at UNLV in Child Development. He was awarded a $2.5 million grant to fund 27

6 28 See Handbook, attached hereto as Exhibit C, at page 23. Page 8 of 39 MAC:00002-216 4234620_2 12/22/2020 3:51 PM

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1 ReInvent Schools Las Vegas – Community Schools Initiative, a project designed to implement

2 a community-schools model on three elementary school campuses within the Las Vegas 3 Valley. Additionally, he received a $300,000 award to study the implementation of site-based 4 professional development to support inclusive practices in partnership with the Nevada 5 Partnership for Inclusive Education (NVPIE). When not deliberately indifferent towards 6 Plaintiffs, Defendant Joseph Morgan actively directed, supervised and was personally 7 involved in the discriminatory retaliation and policy of compelled speech imposed on 8 Plaintiffs since September of this year, as evidenced in written correspondence and in

9 meetings with Plaintiffs. He failed to take corrective measures as stipulated in the DPAC 10 Handbook and SPCSA contract when put on notice that Defendants’ actions were illegal and

11 created a hostile environment for Plaintiff William Clark.

12 21. All named Defendants are persons acting under color of state law within the 5816 -

COFFING 13 meaning of 42 U.S.C. § 1983.

(702) 382 (702) 14 FACTUAL BACKGROUND 15 22. In 2014, Plaintiff William Clark enrolled in the sixth grade at Andre Agassi 0711 FAX: FAX: 0711 - 16 10001 Park Run Drive Run Park 10001 College Preparatory Academy in Clark County, Nevada. At the time Andre Agassi College Las Vegas, Nevada 89145 Nevada Las Vegas, ) 382 ) 17 Preparatory Academy fell under the operational control of Clark County School District. In 702 ( 18 December of 2016, after receiving a $12.7 million grant from the US Department of MARQUIS AURBACHMARQUIS 19 Education, New York City based Democracy Prep Public Schools (DPPS) and Democracy 20 Prep Public Schools Inc. acquired Andre Agassi College Preparatory Academy. 21 23. DPPS’ acquisition of Andre Agassi College Preparatory Academy was part of 22 a larger national expansion. DPPS had grown from its initial class of 130 sixth-graders in New

23 York City in 2006 to roughly 6,500 students in 21 schools today. In 2018, DPPS received 24 $21.8 million in grants from the U.S. Department of Education’s Charter School Program to 25 fund the opening of additional campuses around the country. On its website, DPPS projects

26 its total enrollment to be 10,000 students nationally. DPPS asserts it “funds all of its schools 27 with only the public money we receive from the city, state, and federal government,” but at 28 the same time “seeks private philanthropy for strategic initiatives separate from the running Page 9 of 39 MAC:00002-216 4234620_2 12/22/2020 3:51 PM

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1 of its schools.”7 Despite their self-professed public status and exclusive reliance on public

2 funding, DPAC or Democracy Prep Nevada LLC and DPPS applied for and received millions 3 of dollars in Payroll Protection Program loans under the CARES Act this summer.8 4 24. DPPS began implementing its “civics” curriculum at the newly acquired 5 Agassi Campus in the Fall of 2017. The acquisition met with significant resistance from 6 parents who were skeptical of the newly arrived New York organization. Defendant Natasha 7 Trivers, DPPS’s interim CEO at the time, characterized the parental opposition to Democracy 8 Prep in Las Vegas as comprised of “haters,” and lamented the difficulty of combating this

9 opposition because of the sheer geographic distance between the school and the organization 10 taking it over: “We’ve always dealt with the haters, so to speak, but that was haters on a really

11 large scale.” She added that she regretted “not getting out in front of our parents so that they

12 heard our voice louder than the detractors in a way that we just haven’t experienced before.” 5816 - 9

COFFING 13

(702) 382 (702) 14 25. Defendant Natasha Trivers at the time was interim CEO of DPPS during the 15 medical leave and absence of Katie Duffy, who would later resign from DPPS. Upon her 0711 FAX: FAX: 0711 - 16 10001 Park Run Drive Run Park 10001 assumption of the role of full and permanent CEO more recently, Natasha Trivers began Las Vegas, Nevada 89145 Nevada Las Vegas, ) 382 ) 17 implementing a very different “civics” curriculum, although the generic name and syllabi 702 ( 18 provided to parents remained the same. Parents at DPAC were not made aware of the MARQUIS AURBACHMARQUIS 19 ideological turn in curriculum. In place of a conventional civics curriculum that addressed the 20 workings of the democratic system, political history, and the importance of civic engagement, 21 Trivers’ new DPPS curriculum inserted consciousness raising and conditioning exercises 22 under the banner of “Intersectionality” and “Critical Race Theory.” These sessions, according

23 to the instruction materials exhibited herein, are not descriptive or informational in nature, but 24 25 7 http://democracyprep.org/about/ 26 8 https://www.cnn.com/projects/ppp-business-loans/businesses/democracy-prep-public-schools 27 9 https://www.the74million.org/article/democracy-preps-expansion-woes-raise-questions-about- 28 whether-civics-education-can-be-brought-to-scale/ Page 10 of 39 MAC:00002-216 4234620_2 12/22/2020 3:51 PM

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1 normative and prescriptive: they require pupils to “unlearn” and “fight back” against

2 “oppressive” structures allegedly implicit in their family arrangements, religious beliefs and 3 practices, racial, sexual, and gender identities, all of which they are required to divulge and 4 subject to non-private interrogation. Some racial, sexual, gender and religious identities, once 5 revealed, are officially singled out in the programming as inherently problematic, and assigned 6 pejorative moral attributes by Defendants. 7 26. Because the so-called “civics” curriculum implemented by Defendant Natasha 8 Trivers carried the same name as the previous curriculum promoted by former DPPS CEO

9 Katie Duffy, parents at DPAC like Gabrielle Clark were not aware of the turn towards 10 coercive, ideological indoctrination until they began seeing the detrimental effects it worked

11 upon their children. 10

12 27. At the former Andre Agassi College Preparatory Academy and at DPAC, 5816 -

COFFING 13 Plaintiff William Clark first developed his academic interests in musicology and sound

(702) 382 (702) 14 engineering, a subject that he hopes to pursue in college. He aspires to attend Berkley School 15 of Music or New York University, while his mother hopes he chooses Carnegie Mellon. As a 0711 FAX: FAX: 0711 - 16 10001 Park Run Drive Run Park 10001 12th grader, he is beginning the application process to college right now. He does all of this Las Vegas, Nevada 89145 Nevada Las Vegas, ) 382 ) 17 while working as a shift manager at a local fast food chain restaurant in order to help his 702 ( 18 family financially, managing intermittent “virtual learning,” and living through this year’s MARQUIS AURBACHMARQUIS 19 waves of lockdowns, stay-at-home orders and social unrest. 20 28. At the end of August of this year, at the start of his final school year, William 21 Clark began the year-long “Sociology of Change” class required for all DPAC seniors and 22 taught by teacher Kathryn Bass. The class runs in tandem with another project-based class, 23 24 10 As a practical matter, Plaintiffs cannot simply transfer to another school. They are economically 25 disadvantaged and DPPS and DPAC continue to actively discourage midyear senior transfers as policy, as evidenced by their resistance to providing plaintiffs with educational records. In a past email titled 26 “no documents for transfers” sent to defendant administrators, DPPS founder Seth Andrews stated “We are absolutely within our rights NOT to help transfers in any way transfers mid-way senior year. 27 No transcripts, no letter of recommendation, nothing. I’m happy to discuss but no one at DPPS is permitted to help a senior who wants to transfer out with in any way. Feel free to refer angry kids or 28 parents to me. But consider this non-negotiable.” Page 11 of 39 MAC:00002-216 4234620_2 12/22/2020 3:51 PM

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1 “Change the World,” in which students carry out a political or social work project under the

2 guidance of a defendant Kathryn Bass and with input from other students.11 3 29. After Plaintiffs objected in early September to the coercive and ideological 4 nature of the “Sociology of Change” class, DPAC Principal Adam Johnson informed 5 Gabrielle Clark that the theoretical basis of the revamped “Sociology of Change” course is 6 known as “intersectionality,” and is inspired by political activist, academic and “Critical Race 7 Theory”12 proponent Kimberlé Crenshaw, who is featured prominently in the course materials 8 attached hereto. Defendants would later deny in a meeting with Plaintiff Gabrielle Clark that

9 the class was infused with “Critical Race Theory.” Plaintiff William Clark’s first graded 10 assignment for the class worth 10pts required him to reveal his racial, sexual, gender, sexual

11 orientation, disabilities and religious identities. Plaintiff William Clark was required to submit

12 his race, gender, sexual orientation, disabilities “if any” in a homework assignment due by 5816 -

COFFING 13 September 21 and which was “graded for completion” for a total of 20pts. Upon information

(702) 382 (702) 14 and belief such assignments continued at least until October of this year. 15 30. “Hello my wonderful social justice warriors!” Defendant Kathryn Bass greeted

0711 FAX: FAX: 0711 13 - 16 10001 Park Run Drive Run Park 10001 William Clark and his class on or about September 8th of this year. Ms. Bass then requested Las Vegas, Nevada 89145 Nevada Las Vegas, ) 382 ) 17 each student to “label and identify” their gender, racial and religious identities as part of “an 702 ( 18 independent reflection” exercise which was graded. The next step was to determine if “that MARQUIS AURBACHMARQUIS 19 part of your identity have privilege or oppression attached to it.”14 Privilege was defined as 20 “the inherent belief in the inferiority of the oppressed group.”15 The teacher’s material stated 21 22 11 A copy of the DPAC curriculum and syllabi is attached hereto as Exhibit D. 23 12 Defendants’ class wears many hats, and defendants describe it in various ways, including 24 “Intersectionality,” “Critical Race Theory” and “Sociology of Change.” Rather than disambiguating the various titles and characterizations, plaintiffs focus on the specific harms inflicted on them by 25 defendants’ class programming. 13 26 See Ex. A at page 30. 14 27 Id. at page 11. 15 28 Id. at page 2. Page 12 of 39 MAC:00002-216 4234620_2 12/22/2020 3:51 PM

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1 who qualified as oppressors, and who in virtue of their gender and race harbored “inherent

2 belief in the inferiority” of others.16 As a result, Kathryn Bass explicitly assigned moral 3 attributes to pupils based on their race, gender, sexual orientation and religion. William Clark 4 felt that if he had submitted to the terms of this exercise, he would have been in effect adopting 5 and making public affirmations about his racial, sexual, gender identities and religious 6 background that he believed to be false and which violated his moral convictions. He also did 7 not wish to profess his identities on command in a non-private setting. 8 31. A “vocab reminder” visual graphic from the same class instructed participants

9 that “oppression” is “malicious or unjust treatment or exercise of power.”17 The lesson 10 categorized certain racial and religious identities as inherently “oppressive,” singling these

11 identities out in bold text, and instructed pupils including William Clark who fell into these

12 categories to accept the label “oppressor” regardless of whether they disagreed with the 5816 -

COFFING 13 pejorative characterization of their heritage, convictions and identities. The familial, racial,

(702) 382 (702) 14 sexual, and religious identities that were officially singled out and characterized as 15 “oppressive” were predetermined by Defendants’ class material from the outset, highlighted 0711 FAX: FAX: 0711 - 16 10001 Park Run Drive Run Park 10001 as such in bold text, antecedent to any discussion between student and teacher. Plaintiff Las Vegas, Nevada 89145 Nevada Las Vegas, ) 382 ) 17 William Clark could not bring himself to accept or affirm these labels, which he 702 ( 18 conscientiously believed were calumny against his self-identity and his family. What William MARQUIS AURBACHMARQUIS 19 Clark refused to do was to submit to racial, sexual, and religious labeling exercises carried out 20 in a non-private setting which was coercive in its very nature and trafficked in intimate 21 personal matters that are outside the legitimate scope of state-funded and controlled public 22 education.

23 32. After Defendant Kathryn Bass directed William Clark and his fellows to “label 24 and identify” their various identities, and place them in the designated “oppressive” 25 categories, the next step was to “breakout” into groups to discuss with other pupils, asking 26

16 27 Id. 17 28 Id. at page 23. Page 13 of 39 MAC:00002-216 4234620_2 12/22/2020 3:51 PM

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1 and answering accusatory personal questions, including “Were you surprised with the amount

2 of privilege or oppression that you have attached to your identities” and “How did this activity 3 make you feel.”18 Those students who did not “feel comfortable or safe enough to do so,” 4 presumably those whose identities were oppressive, were permitted to refrain from divulging

5 the information to other students in their group, Defendant Kathryn. Bass assured them. [Id.] 6 However, discomfort was not relieved by Kathryn Bass’ offered dispensation, according to 7 William Clark. The pre-set structure of the class ensured that any pupil of a certain perceived 8 race, gender or sex who declined to participate only highlighted his status as an “oppressor”

9 who harbored inherent “privilege.” Pupils remained visible to one another in the classes that 10 were virtual, defendant Kimberly Wall said, their faces stacked around the teacher “like the

11 opening credits of the Brady Bunch,” as Ms. Wall would later describe it to Plaintiffs.

12 Defendants’ class presentation also stated that denial of these identity characterizations 5816 - 19

COFFING 13 amounts to unjust privilege “expressed as denial.” Defendants’ class exercises forced upon

(702) 382 (702) 14 William Clark a deliberately designed, psychologically abusive dilemma: participate in the 15 exercise in violation of his conscience and be branded with a pejorative label; or 0711 FAX: FAX: 0711 - 16 10001 Park Run Drive Run Park 10001 conscientiously refrain from participation, and suffer isolation from his classmates and be Las Vegas, Nevada 89145 Nevada Las Vegas, ) 382 ) 17 maligned by the same labeling regardless. 702 ( 18 33. The official, derogatory labeling included in the DPPS/DPAC curriculum MARQUIS AURBACHMARQUIS 19 programming was not only based upon invidious racial distinctions, but also upon the basis of 20 religious, sexual, and gender discrimination. In addition to the “white” racial identity, 21 Defendants singled and assigned inherent moral attributes to pupils who fell into male, 22 heterosexual gender/sex identities and Christian religious categories, calling them intrinsically

23 oppressive, the materials defining “oppression” as “malicious or unjust” and “wrong.”20. 24 Plaintiff William Clark was compelled to participate in public professions of his racial, 25

18 26 Id. at page 22. 19 27 See Exhibit A, page 2. 20 28 See Exhibit A, page 11. Page 14 of 39 MAC:00002-216 4234620_2 12/22/2020 3:51 PM

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1 religious, sexual, and gender identities, and would be labeled as an “oppressor” on these bases

2 by Defendants. Plaintiff William Clark was obliged to profess himself complicit in 3 “internalized privilege [which] includes acceptance of a belief in the inherent inferiority of 4 the [corresponding] oppressed group” as well as supporting “the inherent superiority or 5 normalcy of one’s own privileged group.” As a male, William Clark’s identities were 6 “malicious and unjust” and “wrong” whether or not he was conscious of these alleged facts, 7 and whether or not he was personally responsible for any acts or omissions21. By professing 8 his sexuality at the teacher’s command, William Clark would in effect be submitting to these

9 derogatory labels. William Clark and his fellow students were instructed that any denial of 10 these characterizations itself amounts to unjust privilege “expressed as denial”22. Plaintiff

11 William Clark’s female teacher instructed him that only members of the male sex were

12 capable of committing “real life interpersonal oppression”, because “interpersonal sexism is 5816 - 23

COFFING 13 what men to do women” . This was not descriptive instruction, but compulsory, graded

(702) 382 (702) 14 normative exercises in which Plaintiff William Clark was required to participate. 15 34. William Clark and his mixed-race family belong to many of the groups 0711 FAX: FAX: 0711 - 16 10001 Park Run Drive Run Park 10001 characterized as “oppressive” and “wrong” by Defendants. The assignment of these Las Vegas, Nevada 89145 Nevada Las Vegas, ) 382 ) 17 derogatory labels based upon racial, sexual, gender and religious upbringing created a hostile 702 ( 18 environment for Plaintiff William Clark, who for instance was raised according to Judeo- MARQUIS AURBACHMARQUIS 19 Christian precepts and traditions by his mother. Defendants’ curriculum programming and 20 Kathryn Bass’ actions labeled Christianity as an example of an oppressive ideology and 21 institution against which students should “fight back” and “unlearn.”24. The material makes 22 explicit the “unlearning” is to take place in class, at the direction of the teacher. In fact, one 23 24

21 25 See Exhibit A, page 11. 22 26 See Exhibit A, page 2. 23 27 See Exhibit A, page 9. 24 28 See Exhibit A, page 33. Page 15 of 39 MAC:00002-216 4234620_2 12/22/2020 3:51 PM

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1 slide that William Clark was exposed to states “We have a lot of unlearning to do.”25.

2 Defendants’ exercises and class programming was normative, not descriptive, and aimed to 3 foment in pupils an inward conversion regarding personal moral and spiritual convictions they 4 brought with them to the classroom from their personal experiences and families. 5 35. Professing one’s racial, sexual and religious identities on command, and 6 exposing those professions to the scrutiny of others, was a regular and official practice of the 7 DPPS/DPAC “Sociology of Change” curriculum programming, which William Clark was 8 required to perform repeatedly, and not just in the beginning classes. The terms of this practice

9 were authored by DPPS, as DPPAC and DPPS Defendants informed Plaintiffs in a mid- 10 November meeting. “On the Google Doc write down your individual identity,” Defendant

11 Kathryn Bass directed Plaintiff William Clark and his classmates in one virtual online

26 12 session. “Fill out your identities again,” she reiterated. Individual identities to be written 5816 -

COFFING 13 down and submitted for grading included:

(702) 382 (702) 14 Race/Ethnicity/Nationality: ______15 Gender:______0711 FAX: FAX: 0711 - 16 10001 Park Run Drive Run Park 10001 Socioeconomic Status:______Las Vegas, Nevada 89145 Nevada Las Vegas, ) 382 ) 17 Disabilities: ______702 ( 18 Religion: ______MARQUIS AURBACHMARQUIS 19 Age: ______

20 Language: ______[Id.] 21 36. The above assignment was graded and the assignment sheet included an 22 asterisked caveat at the end: “This list is private! No one else will see it.” The assurance proved

23 to be false, however, because the entry of identities was required to be submitted to the teacher, 24 which she could see and muse over; and although students like Plaintiff William Clark did not 25 know it, by entering their intimate personal information onto the student assignment Google 26

25 27 See Exhibit A, page 35. 26 28 See Exhibit A, page 34. Page 16 of 39 MAC:00002-216 4234620_2 12/22/2020 3:51 PM

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1 Doc database, it immediately became visible to all DPAC teachers and administrators and

2 remains so to this day, in contravention of the written privacy assurance Defendants gave to 3 Plaintiff William Clark and his fellow students, as Plaintiffs and counsel were later informed 4 by Defendants in a mid-November meeting. Defendants also conceded to Plaintiffs and 5 counsel in a mid-November meeting that school supervisors including Defendant Adam 6 Johnson could and would “tune in” to the classroom sessions unbeknownst to students like 7 Plaintiff William Clark, who were at the time in acute discomfort as their gender, race, 8 disabilities “if any”, and sex were being confessed, interrogated, and labeled on Zoom.

9 37. DPAC and DPPS Defendants including Kimberly Wall conceded in meetings 10 with Plaintiffs in mid-November and again in early December with counsel that required

11 exercises and graded homework assignments involving identity confessions as described

12 above indeed occurred. Defendants said in the mid-November meeting that revealing 5816 -

COFFING 13 identities was “encouraged.” Defendants including Kimberly Wall refused to assure Plaintiffs

(702) 382 (702) 14 that graded identity confession assignments or in class exercises would not occur again in 15 future “Sociology of Change” and “Change the World” classes that William Clark is required 0711 FAX: FAX: 0711 - 16 10001 Park Run Drive Run Park 10001 to attend for graduation. Defendants’ current position by counsel is that they will not expunge Las Vegas, Nevada 89145 Nevada Las Vegas, ) 382 ) 17 the failing grade they gave plaintiff William Clark or allow him to take an alternative class 702 ( 18 but that he may partially repair his grade for last trimester’s “Sociology of Change” class if MARQUIS AURBACHMARQUIS 19 he completes all the assignments, which would still not be full credit. 20 38. Defendants’ curriculum made attacks against the integrity of Plaintiff William 21 Clark and his mother’s family relationships. Families “reinforce racist / homophobic 22 prejudices,”27. William Clark’s deceased father was white, and he died when William was too

23 young to know him. The DPPS/DPAC teacher presentation material purports to supply 24 substantial information as to what sort of man he was, however, and what sort of relationship 25 he had with Plaintiff William Clark’s black mother. “Interpersonal racism is what white 26

27 27 See Exhibit A, at page 36. Upon information and belief this position concerning families is in keeping with DPPS and Natasha Trivers’ express, official, and public promotion of organizations that 28 promote the dismantling of “Western prescribed nuclear family structure.” Page 17 of 39 MAC:00002-216 4234620_2 12/22/2020 3:51 PM

Case 2:20-cv-02324-RFB-VCF Document 1 Filed 12/22/20 Page 18 of 39

1 people do to people of color close up,” one “Sociology of Change” curriculum slide declares,

2 with examples including “beatings and harrasments.”28 Defendants do admit that not all white 3 people may be guilty of individually performing such acts, but because white people belong 4 to a “dominant group,” invidious distinctions are justified: “Some people in the dominant 5 group are not consciously oppressive…Does this make it OK? No!”29. 6 39. With green eyes and blondish hair, Plaintiff William Clark is generally 7 regarded as white by his peers, and despite having a black mother, is so light skinned that he 8 is usually presumed “white” by all others. He is the only apparent white boy in his class, in

9 fact, and is regularly reminded of it. Still, the DPPS/DPAC “Sociology of Change” curriculum 10 programming which William Clark had to submit to says not to worry30:

12 5816 -

COFFING 13

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23 And again: 24

28 25 See Exhibit A, at page 9. 29 26 See Exhibit A, at page 10. 30 27 See Exhibit A., at pages 8, 24. 28 Page 18 of 39 MAC:00002-216 4234620_2 12/22/2020 3:51 PM

Case 2:20-cv-02324-RFB-VCF Document 1 Filed 12/22/20 Page 19 of 39

2 3 4 RACISM =IJA1111[1.1+ POWER 5 6 Therefore, people of color CANNOT be racist. 7 8

9 10

12 40. The tendentious terms in which DPPS/DPAC’s mandatory “Sociology of 5816 -

COFFING 13 Change” class was presented to Plaintiff William Clark and his classmates made rational

(702) 382 (702) 14 classroom discussion virtually impossible, thus ensuring a hostile educational environment. 15 Because Defendants’ programming predesignated guilt and innocence to individuals for 0711 FAX: FAX: 0711 - 16 10001 Park Run Drive Run Park 10001 racial, sexual, and gender injustice in the very terminology, it forced pupils to adopt these Las Vegas, Nevada 89145 Nevada Las Vegas, ) 382 ) 17 premises at the outset, frustrating good-faith deliberation between students and teacher. 702 ( 18 41. It is therefore predictable that one of Plaintiff William Clark’s first “Sociology MARQUIS AURBACHMARQUIS 19 of Change” sessions at DPAC on or about September 10, 2020 erupted into racially charged 20 tumult, and teacher Kathryn Bass terminated discussion when students, including William 21 Clark, objected to her derogatory, race-based labeling. Her actions both intimidated him from 22 speaking out in class further and was an official endorsement of an ideology he could not in

23 conscience affirm. This class session was conducted in a virtual online Zoom forum, and 24 Plaintiff Gabrielle Clark immediately complained abouts its disorder and intimidation to 25 Defendant Adam Johnson, principal of DPAC. In a meeting with Plaintiffs DPPS and DPAC

26 Defendants would neither confirm nor deny whether they generated a report regarding the 27 incident. This initial online incident and sitting through classes described above traumatized 28 William Clark, discouraged and chilled his speech, and he did not want to participate further. Page 19 of 39 MAC:00002-216 4234620_2 12/22/2020 3:51 PM

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1 His mother also did not want him to participate further, and told Defendants repeatedly,

2 complaining specifically of the coercive identity revelations and the subsequent hostile 3 environment Defendants were fostering. 4 42. Defendants informed Plaintiff William Clark that he must return to and 5 complete the “Sociology of Change” class, or he would not be permitted to graduate from 6 high school. Plaintiffs spoke with school officials on multiple occasions from September to 7 the present to express their conscientious objection to the programming of the class and assert 8 their rights to abstain from participating in a class that was coercive, invasive and

9 discriminatory. But the response from increasingly higher levels DPAC and DPPS officials 10 was the same: don’t participate, don’t graduate.

11 43. Plaintiff Gabrielle Clark spoke with DPAC Principal Adam Johnson on or

12 about September 15, 2020 to discuss her and Plaintiff William Clark’s concerns about the 5816 -

COFFING 13 abusive and discriminatory nature of DPAC/DPPS’ “Sociology of Change” class taught by

(702) 382 (702) 14 Defendant Kathryn Bass, as well as the identity confessions and labeling, which Defendants 15 in a mid-November meeting would concede was “encouraged.” Defendant Adam Johnson, 0711 FAX: FAX: 0711 - 16 10001 Park Run Drive Run Park 10001 DPAC principal and Democracy Prep Nevada LLC Executive Director, dismissed Plaintiffs’ Las Vegas, Nevada 89145 Nevada Las Vegas, ) 382 ) 17 concerns, instead delivering a lecture on the virtues of “intersectionality” theory that inspired 702 ( 18 the class, and should inspire them. He denied the class had anything to do with “Critical Race MARQUIS AURBACHMARQUIS 19 Theory.” He told Plaintiffs that the course was required for graduation and he would not allow 20 William to opt out of participation. 21 44. On September 16, 2020 Plaintiff Gabrielle Clark appealed in a written email 22 to DPAC School Board Chair Joseph Morgan, copying Principal Adam Johnson and DPPS

23 superintendent Kimberly Wall. “My son is the only white student in this class, as far as we 24 can tell. This teacher is blatantly justifying racism against white people thereby putting my 25 son in emotional, psychological, and physical danger. This is not ok. Something needs to be

26 done to remedy this situation immediately.” She asked to be contacted immediately in order 27 to discuss a workable solution. 28 Page 20 of 39 MAC:00002-216 4234620_2 12/22/2020 3:51 PM

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1 45. On September 17, DPAC School Board Chair and Defendant Joseph Morgan

2 replied without any solution or offer of dialogue, instead laying out in an email a four-tier 3 bureaucratic process through which Plaintiffs William and Gabrielle Clark would be required 4 to process any complaints. Defendant Joseph Morgan was included in nearly every stage of 5 negotiations for accommodation in correspondence and telephonic meetings with Plaintiffs. 6 Upon information and belief he and the DPAC School Board he chairs screened and approved 7 the curriculum programming at issue, and took no corrective action when complaints were 8 raised.

9 46. In a signed letter dated September 17, 2020, DPAC Principal Adam Johnson 10 wrote to Plaintiff Gabrielle Clark that “[a]fter reviewing the documents from Ms. Bass, the

11 course syllabus, and hearing your concerns, I have determined that the Sociology of Change

12 course is still a valuable learning experience for William (and his classmates) and will 5816 - 31

COFFING 13 continue to be a required course for graduation.” .

(702) 382 (702) 14 47. Again, on October 12, 2020, DPAC Principal Adam Johnson sent an email to 15 Gabrielle Clark in response to her and William’s complaints about the discriminatory identity 0711 FAX: FAX: 0711 - 16 10001 Park Run Drive Run Park 10001 labeling, stating “I know you have disagreements with some of the information shared in the Las Vegas, Nevada 89145 Nevada Las Vegas, ) 382 ) 17 Sociology of Change course, however, as I mentioned the course is required for graduation.” 702 ( 18 On the same day Gabrielle Clark responded “William will not be attending Sociology of MARQUIS AURBACHMARQUIS 19 Change. The class violates his civil rights. Retaliation with threats to his graduating is also a 20 violation of his civil rights. If you’d like to discuss an alternative to this class, I am available 21 anytime.” 22 48. On October 19, 2020 Plaintiff Gabrielle Clark speaking for herself and William

23 Clark sent an email to Defendants Joseph Morgan, DPPS assistant superintendent Kimberly 24 Wall and DPAC principal Adam Johnson stating “William Clark will not be participating in 25 any type of Critical Race Theory class. This includes but isn’t limited to Sociology of Change.

26 It’s a direct violation of his civil rights. Mr. Adam Johnson has threatened retaliation by 27

31 28 See Johnson Letter, Exhibit E. Page 21 of 39 MAC:00002-216 4234620_2 12/22/2020 3:51 PM

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1 preventing William from graduating unless he submits to having his civil right violated. This

2 is unacceptable.” 3 49. Perhaps sensing that litigation might be looming, DPAC Principal and 4 Executive Director Adam Johnson on October 19, 2020 moderated his position: he wrote that 5 Plaintiff William Clark could not go and not do the assigned work if he chooses, and fail and 6 be ineligible for graduation. Or he could complete a “minimum” of the exercises and 7 assignments, and then receive a grade of a C minus, the school’s lowest passing grade, which 8 might disqualify him from being considered for admission to his preferred colleges of NYU

9 and Berkeley School of Music, but at least it would not be a failing grade. Or William could 10 participate fully in the “Sociology of Change” class, pass with flying colors and face no grade

11 penalization. These condescending offers, both coercive and retaliatory against

12 constitutionally protected speech and behavior, again forced Plaintiffs to choose between 5816 -

COFFING 13 fidelity to conscience and their right to a public education. Defendants to this day offer no

(702) 382 (702) 14 accommodation that does not include grade penalization. 15 50. On October 29, 2020, Plaintiff Gabrielle Clark requested by email from 0711 FAX: FAX: 0711 - 16 10001 Park Run Drive Run Park 10001 Defendants Kimberly Wall, Joseph Morgan and Adam Johnson, “I would like a course Las Vegas, Nevada 89145 Nevada Las Vegas, ) 382 ) 17 syllabus, assignment materials, and a detailed description of options that are being considered. 702 ( 18 I need those things in order to access how to move forward amicably. On another note, I have MARQUIS AURBACHMARQUIS 19 asked for William’s last year’s report card. We’re trying to get ready for college, as this is 20 William’s senior year.” As happened time and again, Plaintiffs received instead from 21 Defendant Kimberly Wall only a wholesome and vague “Sociology of Change” course 22 syllabus that disguised the true nature of the class evident in the actual materials used on a

23 day-to-day basis with student32. No future “assignment materials” or other class literature was 24 provided, no “detailed description of options.” Extant course materials at issue appear to have 25 been recently edited by Defendants. To this day Defendants offer no accommodation

26 “options” beyond participating fully in the class or penalization, and Defendants refused to 27

32 28 See Exhibit D. Page 22 of 39 MAC:00002-216 4234620_2 12/22/2020 3:51 PM

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1 assure Plaintiffs and their attorney in mid-November and early December meetings that

2 identity confessions, derogatory labeling and “unlearning sessions” are not a part of the 3 remainder of either the “Sociology of Change” or “Change the World” project class. 4 51. On November 16, Plaintiffs’ counsel sent a letter to Defendants Kimberly 5 Wall, Adam Johnson, and Joseph Morgan seeking accommodation and informing them that 6 their actions were illegal33. After two meetings in November and December and in 7 correspondence between Defendants and Plaintiffs’ counsel, Defendants have offered no 8 reasonable accommodation, have refused accommodations proffered, have refused to remove

9 or change the failing grade without grade penalizations and returning to and completing the 10 invasive, derogatory coursework at issue.

11 52. Defendants’ intolerance of Plaintiffs William and Gabrielle Clark’s principled

12 objections to the “Sociology of Change” and Defendants’ refusal to reach reasonable 5816 -

COFFING 13 accommodation is aggressively dismissive of protected speech and behavior. Accommodation

(702) 382 (702) 14 with an alternative class, a virtual class at a local community college, an extra credit 15 assignment all have been proposed by Plaintiffs and declined by Defendants. The refusal of 0711 FAX: FAX: 0711 - 16 10001 Park Run Drive Run Park 10001 any reasonable accommodation to Plaintiff William Clark’s conscientious objection Las Vegas, Nevada 89145 Nevada Las Vegas, ) 382 ) 17 contradicts explicit public statements by DPPS and Superintendent and CEO Natasha Trivers, 702 ( 18 who both have encouraged students “to use their voice to stand up for what is right, even if MARQUIS AURBACHMARQUIS 19 that means pushing back against a school policy, occupying a cafeteria, or staging a walkout” 20 in online posts on March 30, 2020 from the school’s corporate and Ms. Triver’s personal 21 Twitter.com social media accounts: 22 . . .

23 . . .

24 . . .

25 . . .

26 . . .

33 28 See Counsel Letter #1, Ex. F. Page 23 of 39 MAC:00002-216 4234620_2 12/22/2020 3:51 PM

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519 DEMOCRACY PREP @DemocracyPrep • Mar 3:1 1 Prep's top priorities is to reexamine our school policies O ne of Democracy within the framework of "purpose over power and meaningful resistance." 2 This means looking at each of our rules to ensure they are purposeful, just. and push forward academic achievement for all scholars.

3 CD I "t71 1 C;) 5 4 U Natasha Trkvers Retweeted DEMOCRACY PREP 5 @DerriocracyPrep Replying to @DemocracyPrep 6 We also want Democracy Prep scholars to feel 7 empowered to use their voice to stand up for what is right, even if that means pushing back against a school 8 policy, occupying a cafeteria, or staging a walkout.

9 4:53 PM • Mar 30, 2020 - Twitter Web App

10 Retweet 3 Likes

11 53. Offering no reasonable accommodation, Defendants followed through on their

12 threats of retaliation and gave Plaintiff William Clark a D- for the “Sociology of Change” 5816 -

COFFING 13 class, which by DPPS standards is failing. As Clark County was headed towards renewed

(702) 382 (702) 14 Covid-19 lockdowns right before Thanksgiving, Defendant Adam Johnson delivered the news 15 personally with an email to Plaintiffs Gabrielle and William Clark on November 20, 2020, 0711 FAX: FAX: 0711 - 16 10001 Park Run Drive Run Park 10001 copying Defendant Kimberly Wall. The assignment of a D- grade for the “Sociology of Las Vegas, Nevada 89145 Nevada Las Vegas, ) 382 ) 17 Change” class taught and graded by Defendant Kathryn Bass is a contravention of DPAC’s 702 ( 18 official school handbook, and is intended as a malicious slight by Defendants against Plaintiffs MARQUIS AURBACHMARQUIS 19 specifically designed to harm Plaintiff William Clark’s academic and professional career after 20 high school. According to the DPAC handbook, “Democracy Prep does not give Ds. We are 21 aware that the lowest grade most colleges and universities will accept for entry is a C-. 22 Because our mission is to send every DPPS scholar to the best colleges and universities, we

23 align our grading practices with these standards.”34 In retaliating against Plaintiff William 24 Clark for his protected speech, Defendants violated their own standards. 25 54. As a senior, William Clark is now at work on his FAFSA application for

26 colleges and is plying away at his other DPAC classes, despite the fear and loss of trust of in 27

34 28 See Exhibit C. Page 24 of 39 MAC:00002-216 4234620_2 12/22/2020 3:51 PM

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1 school officials resulting from this ordeal. His best subject is pre-calculus at the moment and

2 he works at a fast-food restaurant most evenings to support his family. Plaintiff William Clark 3 has suffered severe mental and emotional distress as a result of Defendants’ actions and the 4 hostile environment created by their official actions, all of which has negatively impacted his 5 academic performance, personal relationships and future professional and academic 6 prospects. He is in therapy addressing these harms as well as the ongoing harassment and 7 discrimination that is being inflicted on him by Defendants under the guise of “civics.” 8 Plaintiffs are unmoved by individual Defendants’ professed intentions to “change the world”;

9 Plaintiff William Clark is at present living in fear of Defendants and reasonably anticipates 10 further retaliation. His fears have been confirmed. Upon information and belief Defendants

11 again blatantly retaliated against Plaintiffs and suspended William Clark on December 16,

12 2020, falsely accusing him of “racism” to preempt any further self-assertion from Plaintiffs. 5816 -

COFFING 13 55. Plaintiff Gabrielle Clark is also personally suffering from the shock, anxiety,

(702) 382 (702) 14 and guilt associated with having entrusted her son to adult custodians who have set upon 15 “unlearning” the Judeo-Christian values she imparted to her son, and from exposing him to 0711 FAX: FAX: 0711 - 16 10001 Park Run Drive Run Park 10001 derogatory labeling and discrimination and retaliation on the basis of his perceived race, Las Vegas, Nevada 89145 Nevada Las Vegas, ) 382 ) 17 sexuality and gender. She has suffered severe emotional distress as a result and is now 702 ( 18 experiencing consequent heart palpitations, weight gain and insomnia. She has watched MARQUIS AURBACHMARQUIS 19 helplessly as Defendants doubled down again and again on their coercive ideological policy 20 towards her son, threatening his graduation and academic and professional future.

21 COUNT I 22 VIOLATION OF THE FIRSTAMENDMENT TO THE U.S. CONSTITUTION (42 U.S.C. § 1983) (Freedom of Speech: Compelled Speech & Retaliation) 23 24 56. Plaintiffs incorporate all of the above paragraphs as though fully set forth 25 herein.

26 57. The First Amendment provides: “Congress shall make no law ... abridging the 27 freedom of speech, or of the press; or the right of the people peaceably to assemble, and to 28 Page 25 of 39 MAC:00002-216 4234620_2 12/22/2020 3:51 PM

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1 petition the Government for a redress of grievances.”35

2 58. The United States Supreme Court has held with respect to public schools that 3 “[i]f there is any fixed star in our constitutional constellation, it is that no official, high or 4 petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters 5 of opinion or force citizens to confess by word or act their faith therein.” W. Va. Bd. of Educ. 6 v. Barnette, 319 U.S. 624, 642 (1943). Defendants thus possess a duty to Plaintiff William 7 Clark to honor his protected First Amendment right. Defendants violated that duty, and their 8 unlawful actions are ongoing.

9 59. Defendants repeatedly compelled Plaintiff William Clark’s speech. 10 Defendants compelled William Clark to proclaim in class and in assignments his race, color,

11 sex, gender and religious identities for which he in turn would receive official, derogatory

12 labels. Defendants predetermined programming required Plaintiff to accept and affirm that 5816 -

COFFING 13 “privilege” and “oppressor” as officially defined by Defendants attached to himself in virtue

(702) 382 (702) 14 of his professed identities, and then to reflect and interrogate on this in a non-private setting 15 within preset, ideologically loaded parameters set by Defendants. 0711 FAX: FAX: 0711 - 16 10001 Park Run Drive Run Park 10001 60. These unlawful actions were done with the specific intent to deprive Plaintiff Las Vegas, Nevada 89145 Nevada Las Vegas, ) 382 ) 17 William Clark of his right to free speech, which Defendants do not value. 702 ( 18 61. Defendants and their employees and agents intended to violate Plaintiff MARQUIS AURBACHMARQUIS 19 William Clark’s right to free speech, and deliberately invade the sphere of intellect and spirit 20 which it is the purpose of the First Amendment to our Constitution to reserve from all official 21 control. See West Virginia State Board of Education v. Barnette, 319 U.S. 624. 22 62. Defendants were deliberately indifferent to the consequences of their unlawful

23 actions, actions which are overtly custom and practice for Defendant DPAC and DPPS, who 24 authored and orchestrated curriculum programming at issue which was then approved and 25 enforced in the face of Plaintiffs’ objections by Defendants School Board and its Chair Joseph

26 Morgan. 27

35 28 See U.S. Const. Amend. I. Page 26 of 39 MAC:00002-216 4234620_2 12/22/2020 3:51 PM

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1 63. Defendants Kathryn Bass, Adam Johnson, Kimberly Wall, Joseph Morgan and

2 Natasha Trivers’ actions including malicious, coordinated retaliation for Plaintiff William 3 Clark’s protected behavior were motivated by an animus for Plaintiff William Clark’s come- 4 uppance given his perceived race, color, gender and sexuality, disfavored identities which 5 Defendants explicitly and openly disparage and mock. Defendants ruined Plaintiff’s good 6 college prospects built on prior years’ hard work and good grades. Defendants show no 7 intention of altering their program of compelled speech in the future. Plaintiff seeks damages, 8 including punitive damages, against them.

9 64. As a direct and proximate consequence of Defendants’ unlawful acts, Plaintiff 10 William Clark has and continues to suffer damages for loss of his First Amendment rights, for

11 pain and suffering, emotional distress, and damage to his academic and professional future

12 and reputation. 5816 -

COFFING 13 65. Absent an injunction, Plaintiff William Clark will suffer irreparable harm

(702) 382 (702) 14 because he will be denied a high school diploma, suffer further damage to his academic record, 15 and he will not go to college. At present he is being compelled to return to and participate in 0711 FAX: FAX: 0711 - 16 10001 Park Run Drive Run Park 10001 Defendants’ unlawful activity, and he continues to suffer emotional distress and Las Vegas, Nevada 89145 Nevada Las Vegas, ) 382 ) 17 discrimination in the face of it. 702 ( 18 COUNT II MARQUIS AURBACHMARQUIS 19 VIOLATION OF THE FIRSTAMENDMENT TO THE U.S CONSTITUTION 20 (42 U.S.C. § 1983) (Freedom of Speech: Association, Viewpoint Discrimination & Retaliation) 21

22 66. Plaintiffs incorporate all of the above paragraphs as though fully set forth

23 herein.

24 67. On or about September 10, 2020, Defendant Kathryn Bass terminated class 25 discussion when students, including Plaintiff William Clark, objected to a PowerPoint slide 26 she showed in Defendants’ “Sociology of Change Class” stating that “Reverse Racism 27 Doesn’t Exist” and “Black Prejudice Does Not Affect the Rights of White People.” Plaintiff 28 William Clark’s stated objections was that everyone can be racist, that prejudice anywhere Page 27 of 39 MAC:00002-216 4234620_2 12/22/2020 3:51 PM

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1 from anyone can harm others. For this protected speech and others like it, Defendant Kathryn

2 Bass terminated class discussion immediately with the intent to chill and discourage future 3 objections to Defendants’ sponsored politicized ideology. 4 68. Defendants Kathryn Bass’s actions, and the subsequent coordinated efforts 5 from Defendants to punish and fail Plaintiff William Clark, was intended to chill protected 6 speech that Defendants did not themselves share concerning their ideologically loaded 7 program concerning race, gender, sexuality and religion. 8 69. Defendant Kathryn Bass, who was not adequately trained by Defendants,

9 instructed Plaintiff William Clark and other that denial of “privilege” which she attached to 10 their identities was itself “privilege,” and defined “privilege” in a non-descriptive, normative

11 and derogatory manner. Defendant Kathryn Bass thus created a coercive environment where

12 any objection from Plaintiff William Clark was and would be officially labeled pejoratively. 5816 -

COFFING 13 Defendants’ program was intended to and did chill and discourage Plaintiff William Clark’s

(702) 382 (702) 14 speech. 15 70. Defendants, their agents and employees threatened and punished Plaintiff 0711 FAX: FAX: 0711 - 16 10001 Park Run Drive Run Park 10001 William Clark’s objection to entering into and participating in the above politicized program Las Vegas, Nevada 89145 Nevada Las Vegas, ) 382 ) 17 and did so due to his perceived race, color, sex and gender. Defendants’ punishing demand 702 ( 18 that he return to the psychologically abusive, politicized exercises where he must confess and MARQUIS AURBACHMARQUIS 19 submit to official, pejorative labeling violates his right to free association and assembly. 20 Failing and threatening his graduation from high school is unlawful retaliation that itself 21 amounts to viewpoint discrimination. 22 71. As a direct and proximate consequence of these ongoing unlawful acts,

23 Plaintiff William Clark has and continues to suffer damages for loss of First Amendment 24 rights, for pain and suffering, emotional distress, and damages to his academic and 25 professional future and reputation.

26 72. Absent an injunction, Plaintiff William Clark will suffer irreparable harm 27 because he will be denied a high school diploma, suffer further damage to his academic record, 28 and will not go to college; he will be compelled to return to and participate in Defendants’ Page 28 of 39 MAC:00002-216 4234620_2 12/22/2020 3:51 PM

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1 unlawful activity, and continue to suffer emotional distress and discrimination in the face of

2 it.

3 COUNT III 4 VIOLATION OF THE FIFTH & FOURTEENTH AMENDMENT 5 (42 U.S.C. § 1983) (Due Process: Invasion of Privacy & Equal Protection)

6 73. Plaintiffs incorporate all of the above paragraphs as though fully set forth 7 herein. 8 74. Under the Fourteenth Amendment of the United States Constitution, the

9 Government may not “deprive any person of life, liberty, or property, without due process of 10 law.” U.S. Const. Amend. I.

11 75. Defendants and their employees and agents owed duty under the due process

12 clause of the Fourteenth Amendment’s Plaintiff William Clark’s privacy. 5816 -

COFFING 13 76. Defendants violated Plaintiff William Clark’s substantive due process right to

(702) 382 (702) 14 privacy. 15 77. Despite Defendants’ assurances to Plaintiff William Clark and other students, 0711 FAX: FAX: 0711 - 16 10001 Park Run Drive Run Park 10001 Defendant Kathryn Bass’ confessional exercises were not in fact private or limited to the Las Vegas, Nevada 89145 Nevada Las Vegas, ) 382 ) 17 herself and classroom participants. DPPS and DPAC Defendants conceded to Plaintiffs and 702 ( 18 counsel in a mid-November meeting that school supervisors including Defendant Adam MARQUIS AURBACHMARQUIS 19 Johnson could and would “tune in” to the classroom sessions unbeknownst to students like 20 Plaintiff William Clark, who were at the time in acute discomfort as their gender, race, 21 disabilities “if any” and sex were being confessed, interrogated and labeled. 22 78. The same is true for the written, graded assignments requesting identity

23 divulgence submitted to Defendant Kathryn Bass on a database which in fact was visible to 24 all other DPAC teachers and supervisors, despite Defendant Kathryn Bass’ explicit and 25 written assurances in Defendants’ course material that submissions would be private.

26 79. Defendants’ program of directing and requiring students to reveal, “unlearn” 27 and interrogate intimate matters relating to gender, sex, race, color and religious identities for 28 the service of an ideological, politically non-neutral purposes violate Plaintiff’s William Page 29 of 39 MAC:00002-216 4234620_2 12/22/2020 3:51 PM

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1 Clark’s right to privacy and is official intrusion upon seclusion. This curriculum programming

2 was screened and approved by Defendants DPAC School Board and SPSCA. 3 80. Defendants’ unlawful actions are ongoing, intentional violations of Plaintiff 4 William Clark’s protected right to privacy that serve no reasonable state or educational interest 5 and yet to express policy of Defendants DPPS. 6 81. Defendants Kathryn Bass, Adam Johnson, Joseph Morgan, Kimberly Wall and 7 Natasha Trivers in their individual and official capacities continue to violate Plaintiff William 8 Clark’s right to privacy and have threatened and retaliated against him on the basis of his

9 perceived race, color, gender, sex and religious background. 10 82. The Equal Protection component of Due Process Clause guarantees persons

11 the equal protection of the laws and prohibits the government from treating persons

12 differently—on the basis of their race, religion, national origin, or alienage—than similarly 5816 -

COFFING 13 situated individuals.

(702) 382 (702) 14 83. Defendants Katheryn Bass and the curriculum programming promoted by 15 Defendants Natasha Trivers, Kimberly Wall, Joseph Morgan and Adam Johnson label some 0711 FAX: FAX: 0711 - 16 10001 Park Run Drive Run Park 10001 school age students, but not others, as “oppressors,” a condition which is “malicious and Las Vegas, Nevada 89145 Nevada Las Vegas, ) 382 ) 17 unjust” and “wrong,” solely in virtue of their racial, religious and sexual identity. Plaintiff 702 ( 18 William Clark was so labeled by his teacher for his gender, religious affiliation and perceived MARQUIS AURBACHMARQUIS 19 race, while other students were not. Because of his apparent race and color—unique in his 20 class—Defendants gave Plaintiff William Clark more work to do, more “unlearning,” more 21 self-interrogation on view to other students similarly situated. This curriculum programming 22 was screened and approved by Defendants SPSCA and DPAC School Board, and generated

23 and promoted by DPPS and Defendant Natasha Trivers. 24 84. When Plaintiff William Clark wished to absent himself from the harm- 25 inducing process and seek accommodation, Defendants Kathryn Bass, Adam Johnson,

26 Kimberly Wall, Joseph Morgan and Natasha Trivers retaliated by threatening and penalizing 27 him, despite publicly encouraging other students to do exactly what Plaintiff William Clark is 28 doing now: “to use their voice to stand up for what is right, even if that means pushing back Page 30 of 39 MAC:00002-216 4234620_2 12/22/2020 3:51 PM

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1 against a school policy.” These Defendants show no intention of changing their behavior and

2 acted on an animus for Plaintiff William Clark’s perceived race, gender, and sex, and Plaintiffs 3 seek damages including punitive damages against them. Defendants regarded Plaintiff 4 William Clark’s conscientious objection as a right and privilege not reserved for him on 5 account of his perceived race, color, sex, and gender, and would have accommodated and not 6 have retaliated against a similarly situated student of different perceived race, color, sex and 7 gender that Defendants explicitly favor. 8 85. Defendants’ direct actions, and implicit condoning of a plan to fail and frustrate

9 Plaintiff William Clark, and ransom his high school diploma, effectively forecloses his 10 chances at a good college education. Plaintiff William Clark has a right to a public high school

11 degree and college education, and Defendants’ efforts to undermine that right because of

12 animus for his perceived race, gender and religious background is a violation of William 5816 -

COFFING 13 Clark’s Due Process and Equal Protection Rights.

(702) 382 (702) 14 86. As a direct and proximate consequence of these ongoing unlawful acts, 15 Plaintiff William Clark has and continues to suffer damages for loss of First Amendment 0711 FAX: FAX: 0711 - 16 10001 Park Run Drive Run Park 10001 rights, for pain and suffering, emotional distress, and damages to his academic and Las Vegas, Nevada 89145 Nevada Las Vegas, ) 382 ) 17 professional future and reputation. 702 ( 18 87. Absent an injunction, Plaintiff William Clark will suffer irreparable harm MARQUIS AURBACHMARQUIS 19 because he will be denied a high school diploma, suffer further damage to his academic record, 20 and will not go to college; he will be compelled to return to and participate in Defendants’ 21 unlawful activity, and continue to suffer emotional distress and discrimination in the face of 22 it.

23 COUNT IV 24 VIOLATION OF THE FIRST & FOURTEENTH AMENDMENT 25 (42 U.S.C. § 1983) (Substantive Due Process: Establishment Clause, Family Integrity & Retaliation) 26 88. Plaintiffs incorporate the allegations and averments contained in paragraphs 1 27 through 73 as if fully set forth herein. 28 Page 31 of 39 MAC:00002-216 4234620_2 12/22/2020 3:51 PM

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1 89. The Due Process Clause of the Fourteenth Amendment prohibits states from

2 depriving individuals of "life, liberty, or property without due process of law." The Supreme 3 Court has expanded individual rights in personal matters to include parental rights and family 4 integrity. See Meyer v. Nebraska, 262 U.S. 390, 401-02 (1923) (finding the protection of 5 parental autonomy linked to the American culture's placement of childrearing responsibility 6 on parents rather than the community and includes the "power of parents to control the 7 education of their own."). 8 90. Plaintiff Gabrielle Clark, mother of William Clark, brings suit on her own

9 behalf against Defendants and claims violation of the Establishment Clause and her 10 substantive due process right to Family Integrity. Defendant Kathryn Bass explicitly

11 expressed an animus towards the family structure as such which she claimed in exhibited

12 course materials to be responsible for perpetuating “bigotry and homophobia.” Bass then took 5816 -

COFFING 13 the further step of repeatedly instructing Plaintiff Gabrielle Clark’s son to “unlearn” and “fight

(702) 382 (702) 14 back” against the principles Plaintiff Gabirelle Clark imparted to him throughout his 15 childhood, including the Christian precepts that all are equal before the eyes of God and should 0711 FAX: FAX: 0711 - 16 10001 Park Run Drive Run Park 10001 be judged by their actions and character rather than attributes beyond their control, including Las Vegas, Nevada 89145 Nevada Las Vegas, ) 382 ) 17 color, race, gender and sex. This extra step of “unlearning” and thought reform is non-neutral 702 ( 18 and burdens religion, and knowing this, DPAC and DPPS endeavored to keep exercises and MARQUIS AURBACHMARQUIS 19 assignments hidden from parents like Plaintiff Gabrielle Clark, who are supplied with generic 20 syllabi and course descriptions upon inquiry. The politicized “unlearning” of family 21 influence, disguised from parents in deceptive course descriptions and syllabi, is mandatory 22 and graded. This coercive program was generated and promoted by Defendants DPPS and

23 Natasha Trivers, implemented by Defendant Kathryn Bass, and the campaign of coercing 24 participation directly carried out by Defendants Kimberly Wall, Joseph Morgan, and Adam 25 Johnson. Defendants’ position to this day is that Plaintiff William Clark must either return to

26 Defendant Kathryn Bass’ class without any accommodating change to the class content or 27 programming or he will not graduate. 28 Page 32 of 39 MAC:00002-216 4234620_2 12/22/2020 3:51 PM

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1 91. Parents have a right to guide and direct the upbringing of their children, and

2 courts have honored and upheld this right. Troxel v. Granville, 530 U.S. 57, 66 (2000) 3 (O’Connor, J., plurality). Defendants Kathryn Bass and Adam Johnson personally coerced 4 Plaintiff Gabrielle Clark’s son to change the fundamental beliefs imparted to him by his family 5 in order to convert those beliefs to a preapproved set of beliefs by methods that make clear 6 that in certain areas of ideology and belief, dissent or deviance is not acceptable. Defendant 7 Kathryn Bass violated and sought to undermine this right, and her deliberate program of 8 discouraging family integrity through thought reform and “unlearning” was both endorsed

9 and abetted by her superiors Defendants Adam Johnson, Kimberly Wall, Joseph Morgan, and 10 Natasha Trivers, all of whom coordinated punishing action against Plaintiff Gabrielle Clark

11 and her son when she began asking too many questions and Plaintiff William Clark stopped

12 participating in the mandatory, confessional “unlearning” which now amounts to custom and 5816 -

COFFING 13 policy for DPPS, DPAC and the DPAC School Board.

(702) 382 (702) 14 92. Plaintiff Gabrielle Clark seeks damages and injunctive relief as Defendants 15 continue to coerce her son into associating and participating in the above class programs, a 0711 FAX: FAX: 0711 - 16 10001 Park Run Drive Run Park 10001 requirement which serves no legitimate state interest and is an unreasonable intrusion into the Las Vegas, Nevada 89145 Nevada Las Vegas, ) 382 ) 17 traditional parent-child relationship. 702 ( 18 COUNT V MARQUIS AURBACHMARQUIS 19 Title VI Violation of 42 U.S.C. § 2000d et seq. (Intentional and Retaliatory Discrimination on The Basis Of Color, Race and Religion 20 against Authority, DPAC, DPPS and Defendants in their individual capacity) 21 93. Plaintiffs incorporate the allegations and averments contained in paragraphs 1 22 through 58 as if fully set forth herein. 23 94. Defendants SPSCA, DPAC School Board, DPPS, DPAC, Democracy Prep 24 Nevada and Democracy Prep Public Schools Inc. are recipients of federal funds, and 25 Defendants harassed and discriminated against Plaintiffs on the basis of actual and perceived 26 race, sex and religion in violation of Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 27 2000d, et seq. by intentionally supporting, promoting and implementing a curriculum 28 Page 33 of 39 MAC:00002-216 4234620_2 12/22/2020 3:51 PM

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1 programming, including but not limited to the “Sociology of Change” class, with knowledge

2 of its discriminatory content and application, which has created a hostile educational 3 environment for those students who are actually or perceived white, biracial, male and of a 4 Christian heritage. Defendants’ behavior treated Plaintiff William Clark differently than other 5 students on account of his racial, sexual, and religious identities. Title VI is privately 6 enforceable. 7 95. The courts have followed a broad interpretation by ruling that a local 8 educational agency for purposes of Title VI and IX includes school boards, their members,

9 and agents of such boards. Meyers v. Board of Education of the San Juan School District, 905 10 F. Supp. 1544 (D. Utah 1995) (34); Horner, supra, 43 F.3d at 272 (Title IX case); see also

11 Young by and through Young v. Montgomery County (AL) Board of Education, 922 F. Supp.

12 544 (M.D. Al. 1996). 5816 -

COFFING 13 96. Discriminatory conduct based on perceived race, gender, sex and religious

(702) 382 (702) 14 heritage from Defendants include failing him and coercing him to submit to the discriminatory 15 exercises in class. Defendants Natasha Trivers and DPPS publicly announced they encourage 0711 FAX: FAX: 0711 - 16 10001 Park Run Drive Run Park 10001 students to push back against “school policy” they object to on principle; Defendants departed Las Vegas, Nevada 89145 Nevada Las Vegas, ) 382 ) 17 from this stated policy with respect to Plaintiff William Clark because of his perceived race, 702 ( 18 color, sex, gender and religious background which Defendants explicitly disfavor. Defendant MARQUIS AURBACHMARQUIS 19 Adam Johnson followed through on his threats personally delivered the report card with a 20 failing grade that contravened Defendants’ own grading policy. Defendant Katherine Bass 21 failed William Clark in accordance with Executive Director and Principal Adam Johnson’s 22 retaliatory threats. Defendants Kimberly Wall and Natasha Trivers at DPPS in the New York

23 headquarters, oversaw and coordinated the above for three months, and refused to reasonably 24 accommodate Plaintiffs at the direction of Defendant Natasha Trivers, who designed, 25 promoted and implemented the coercive, invasive and discriminatory curriculum program.

26 All of the above was manifestly intentional discrimination and disparate treatment based on 27 Plaintiff William Clark’s perceived race and color, resulting in disparate impact and effects. 28 Page 34 of 39 MAC:00002-216 4234620_2 12/22/2020 3:51 PM

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1 97. Discrimination that violates the Equal Protection Clause of the Fourteenth

2 Amendment of the United States Constitution constitutes a violation of Title VI when 3 committed by any institution, entity or person that accepts federal funds. 4 98. In virtue of Plaintiff William Clark’s perceived racial identity, Defendants’ 5 programming required him to work more strenuously than other students of different 6 backgrounds: he had more “unlearning” to do, more discomfort and self-interrogation to 7 experience in class on account of his perceived race and color which is visibly different than 8 his classmates. When Defendants Adam Johnson, Joseph Morgan, Kimberly Wall learned of

9 his objection to this, they set about threatening and punishing rather than accommodating him, 10 demonstrating actual animus towards Plaintiff William Clark on account of his perceived race

11 for not confessing and interrogating his officially disapproved of identities and failing to

12 submit to derogatory, racist labeling by school officials. 5816 -

COFFING 13 99. Plaintiffs have been and will continue to be injured by Defendants’ unlawful

(702) 382 (702) 14 and discriminatory actions, which resulted in emotional distress, trauma, and included overt 15 retaliation described in detail above, and Plaintiffs are entitled to compensatory and punitive 0711 FAX: FAX: 0711 - 16 10001 Park Run Drive Run Park 10001 damages. Las Vegas, Nevada 89145 Nevada Las Vegas, ) 382 ) 17 100. Plaintiffs are entitled to declaratory judgment, pursuant to 28 U.S.C. §2201, 702 ( 18 and a temporary and permanent injunction pursuant to Rule 65 because there is no plain, MARQUIS AURBACHMARQUIS 19 adequate or speedy remedy at law to restore Plaintiff William Clark’s academic standing and 20 prevent Defendants from continuing to practice and promote the aforementioned actions that 21 discriminate on the basis of race, religion, gender and sexuality in violation of Title VI of the 22 Civil Rights Act of 1964 and because the harm Plaintiffs’ members will otherwise continue

23 to suffer is irreparable.

24 COUNT VI 25 (Title IX of the Education Amendments of 1972, 20 U.S.C. §§ 1681 et seq.)

26 101. Defendants including the various Defendants in their individual capacity, 27 violated Title IX in their deliberate indifference and active promotion of the ongoing abuse 28 and harassment Plaintiff William Clark endured in DPAC’s “Sociology of Change” class. Page 35 of 39 MAC:00002-216 4234620_2 12/22/2020 3:51 PM

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1 102. Title IX protects Plaintiffs from sex discrimination when they are engaged in

2 education programs and activities that receive federal financial assistance. Among the types 3 of sex discrimination that Title IX expressly prohibits is intentional sexual harassment. Title 4 IX gives individuals a private right of action to bring a lawsuit for injunctive or monetary 5 relief. 6 103. After being repeatedly directed to divulge his sexual and gender identities, 7 school officials as custom and policy and in direct acts described above publicly labeled, 8 repeatedly categorized and stereotyped Plaintiff William Clarks’ sexual and gender identities

9 in a deliberately pejorative and offensive manner. Plaintiff William Clark was compelled to 10 participate in this process of publicly professing identity, receiving in turn derogatory

11 designation of “oppressor” on the basis of his sex and gender identities. This included inherent

12 “internalized privilege [which] includes acceptance of a belief in the inherent inferiority of 5816 -

COFFING 13 the [corresponding] oppressed group” as well as the “the inherent superiority or normalcy of

(702) 382 (702) 14 one’s own privileged group.” This is a condition inherent to Plaintiff’s sex and gender which 15 is “malicious and unjust” and “wrong” whether conscious or not36. Denial of these qualities

0711 FAX: FAX: 0711 37 - 16 10001 Park Run Drive Run Park 10001 inherent to Plaintiff’s sex and gender is itself privilege “expressed as denial.” Only Las Vegas, Nevada 89145 Nevada Las Vegas, ) 382 ) 17 Plaintiff’s sex can commit “real life interpersonal oppression”, Plaintiff’s female teacher told 702 ( 18 him, since “interpersonal sexism is what men to do women.”38. Plaintiffs were harmed by MARQUIS AURBACHMARQUIS 19 Defendants behavior.

20 COUNT VII 21 (Breach of Contract)

22 104. Plaintiffs incorporate the allegations and averments contained in paragraphs 1

23 through 85 as if fully set forth herein. 24 25

36 26 See Exhibit A, page 11. 37 27 See Exhibit A, page 2. 38 28 See Exhibit A, page 9. Page 36 of 39 MAC:00002-216 4234620_2 12/22/2020 3:51 PM

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1 105. Under Nevada law, “the Plaintiff in a breach of contract action [must] show

2 (1) the existence of a valid contract, (2) a breach by the Defendant, and (3) damage as a result 3 of the breach.” Saini v. Int'l Game Tech., 434 F. Supp. 2d 913, 919-20 (D. Nev. 2006). Parents 4 like Plaintiff Gabrielle Clark were caught off guard. The acquisition of Agassi Collegiate Prep 5 was affected under the DPPS Duffy administration, which sold a rather neutral and traditional 6 version of “civics.” Suddenly after renewing enrollment, students were being instructed in a 7 fringe ideology overtly hostile to core personal beliefs about home and church, race and sex, 8 and much else. The new “Sociology of Change” violates its own DPPS charter and mission,

9 set forth on their website and elsewhere, including its handbook39. DPAC violated its own 10 Nondiscrimination, Harassment and grading standards pursuant to its own handbook.40. As

11 such Plaintiffs Gabrielle Clark and William Clark claim breach of contract.

12 106. Defendant’s breach of contract implicates both Nevada state law and 42 U.S.C. 5816 -

COFFING 13 § 1981 subsection (b) as it involves “the making, performance, modification, and termination

(702) 382 (702) 14 of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the 15 contractual relationship.” Domino's Pizza, Inc. v. McDonald, 546 U.S. 470, 126 S.Ct. 1246, 0711 FAX: FAX: 0711 - 16 10001 Park Run Drive Run Park 10001 163 L.Ed.2d 1069 (2006) (holding “[a]ny claim brought under § 1981 ... must initially identify Las Vegas, Nevada 89145 Nevada Las Vegas, ) 382 ) 17 an impaired contractual relationship under which the Plaintiff has rights.”). 702 ( 18 PRAYER FOR RELIEF

MARQUIS AURBACHMARQUIS 19 WHEREFORE, Plaintiffs William Clark and Gabrielle Clark pray for the following 20 relief as to all counts: 21 1. An emergency preliminary order pursuant to Rule 65 restraining and enjoining 22 Defendants from denying Plaintiff William Clark his high school graduation and degree, and

23 accommodating William Clark with an alternative non-discriminatory, non-confessional class 24 that would restore him to good academic standing as he applies for college; 25 26

39 27 See Exhibit D. 40 28 Id. Page 37 of 39 MAC:00002-216 4234620_2 12/22/2020 3:51 PM

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1 2. A preliminary order pursuant to Rule 65 directing Defendants to remove and

2 expunge from the Plaintiff William Clark’s academic record the D- grade at issue; 3 3. For a temporary restraining order, preliminary and permanent injunction, 4 enjoining and restraining Defendants from engaging in the policies, practices and conduct 5 complained of herein, enjoining Defendants, its officials, agents, employees, and all persons 6 acting in concert or participating with them from implementing or enforcing compulsory, 7 graded identity confessions and derogatory labeling; 8 4. A declaratory judgment, pursuant to the Declaratory Judgment Act, 28

9 U.S.C. § 2201, 42 U.S.C. § 1983 from the Court that requiring students to reveal racial, 10 sexual, gender and religious identities in a public-school classroom and graded assignments

11 is unconstitutional compelled speech and invasion of privacy;

12 5. A declaratory judgment, pursuant to the Declaratory Judgment Act, 28 5816 -

COFFING 13 U.S.C. § 2201, from the Court that Defendants above- described curriculum

(702) 382 (702) 14 programming and retaliatory acts violate Title VI of the Civil Rights Act of 1964, 42 U.S.C. 15 § 2000d et seq.; 0711 FAX: FAX: 0711 - 16 10001 Park Run Drive Run Park 10001 6. A declaratory judgment, pursuant to the Declaratory Judgment Act, 28 Las Vegas, Nevada 89145 Nevada Las Vegas, ) 382 ) 17 U.S.C. § 2201, from the Court that Defendants above- described actions and 702 ( 18 curriculum, violate the Equal Protection Clause of the Fourteenth Amendment of the United MARQUIS AURBACHMARQUIS 19 States Constitution, 42 U.S.C. § 1983; 20 7. A declaratory judgment from the Court that Defendants’ actions and 21 curriculum programming in whole or in part violate Plaintiff Gabrielle’s Clark’s Fourteenth 22 Amendment substantive due process rights to family integrity;

23 8. Monetary damages, compensatory and punitive; 24 9. An award of attorney’s fees and costs generally and pursuant to 42 U.S.C. 25 §1988 and any other applicable provisions;

26 10. Pre-judgment and Post-judgment interest at the maximum amount permitted 27 by law; and 28 Page 38 of 39 MAC:00002-216 4234620_2 12/22/2020 3:51 PM

Case 2:20-cv-02324-RFB-VCF Document 1 Filed 12/22/20 Page 39 of 39

1 11. Such other and further relief as the Court may deem just and proper.

2 Dated this 22nd day of December, 2020. 3 MARQUIS AURBACH COFFING 4 5 By /s/ Brian R. Hardy, Esq. 6 Brian R. Hardy, Esq. Nevada Bar No. 10068 7 10001 Park Run Drive Las Vegas, Nevada 89145 8 Jonathan O’Brien, NYB No. 5043369 9 (Pending Admission Pro Hac Vice) Law Office of Jonathan O’Brien 10 43 W. 43rd St, Suite 002

New York, NY 10036 11 Attorneys for Plaintiffs William Clark and 12 Gabrielle Clark 5816

COFFING 13

(702) 382 (702) 14 15 0711 FAX: FAX: 0711 - 16 10001 Park Run Drive Run Park 10001 Las Vegas, Nevada 89145 Nevada Las Vegas, ) 382 ) 17 702 ( 18 MARQUIS AURBACHMARQUIS 19 20 21 22

23 24 25 26 27 28 Page 39 of 39 MAC:00002-216 4234620_2 12/22/2020 3:51 PM

March 2021 RE: Supporting Mandatory Diversity, Equity and Inclusivity Training BY EMAIL ONLY: [email protected]

Dear Clerk of the Court, The Center for Legal Inclusiveness (CLI) is in strong support of the proposed mandatory diversity, ethics and inclusivity (DEI) rule. CLI believes that without this specific training, attorneys cannot meet their legal obligations under many of the rules of professional conduct and certainly cannot meet the expectations of those individuals who find themselves part of the legal system. Without a system where biases are recognized, and then able to be placed aside, micro- affirmations are taught as a way to combat microaggressions, we actually have a chance to ensure less racism creeps into our legal system as it has in the past. The pandemic of systemic racism and racial reckoning that our country has finally accepted, forces us to act as a profession that stands for justice and equality for all. This is not the system that we have today. Requiring DEI training is a major step in the right direction and will make better lawyers, a better judiciary and a more just legal system in Colorado.

Sara S. Scott CEO, Center for Legal inclusiveness

From: Rosalie Chamberlain To: stevens, cheryl Subject: Requiring CLE training in Diversity, Equity & Inclusion Date: Wednesday, March 17, 2021 6:25:25 PM

I support this requirement. As a member of the CWBA and having worked with the legal industry for 15+ years, this is a needed requirement. Respectfully, Rosalie Chamberlain From: Vika S. Chandrashekar To: stevens, cheryl Subject: Public Comment in Support of CLE Rule Change Date: Monday, March 29, 2021 3:11:51 PM

Dear Ms. Stevens,

I am an attorney at the law firm of Moye White LLP. I am also the President of the South Asian Bar Association of Colorado (“SABA-CO”). Through this email, I write to provide my public support in favor of the proposed change to the rules and regulations governing continuing legal education (“CLE”) requirements in the State of Colorado. I have reviewed the proposed rule changes in great detail, and have discussed them in various organizations of which I am apart, including my firm and SABA-CO. The proposed rule change is an acknowledgment of the growing importance of diversity, equity, and inclusion in the legal profession. For too long, the profession has been rather homogenous; that is changing rapidly. With that change has arisen an increased desire of clients and public agencies to be more inclusive and diverse in all aspects of their business, from internal hiring practices, to the retention of law firms and attorneys of diverse and unique backgrounds, to an understanding of how the legal system has not equally served all citizens.

Required coursework in the areas of diversity, equity, and inclusion will help bridge the gap between the past and the future in a meaningful way. I am proud to lend my support to this rule change.

Please do not hesitate to let me know if I can provide additional information.

Best, Vika Chandrashekar

Vika S. Chandrashekar Attorney 303-292-7910

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1400 16th Street, 6th Floor Denver, Colorado 80202-1486

Office: 303 292 2900 Fax: 303 292 4510 www.moyewhite.com

The information contained in this communication is confidential, may constitute inside information, is intended only for the use of the addressee, and is the property of Moye White LLP. Unauthorized use, disclosure or copying of this communication or any part thereof is strictly prohibited and may be unlawful. If you have received this communication in error, please notify us immediately by return email and destroy this communication and all copies thereof, including all attachments.

From: Hannah Clark To: stevens, cheryl Subject: Support of EDI CLE rule change Date: Friday, March 26, 2021 2:14:23 PM Attachments: image001.png

I fully support this rule change and it is just one of many steps we as a legal community need to take. Thank you!

From: David Collins To: stevens, cheryl Subject: Comment on Rule Change CLE 250.2 Date: Monday, March 29, 2021 9:38:32 AM Attachments: image002.png

Ms. Stevens,

Below is my comment to the rule change proposal for CLE 250.2

Adding a requirement for at least two hours in the area of equity, diversity, and inclusivity is a great idea. I am hoping the availability of courses meeting this requirement are in place to enable folks to comply. With the diverse populations served in all manner of proceedings, it makes sense to equip attorneys with the knowledge, skills, and abilities to advocate for all of our clients.

Sincerely,

David Ari Collins Senior Attorney [email protected]

9085 E. Mineral Circle, Suite 190 Centennial, CO 80112 (303) 799-8155

THE LAW FIRM OF BRUCE A. DANFORD, LLC 11971 Quay Street • Broomfield, CO 80020 Telephone (303) 410-2900 • Facsimile (303) 496-0566 E-mail BruceDanford@BruceDanford. com www.BruceDanford. com

March 8, 2021

Cheryl Stevens Clerk of the Colorado Supreme Court 2 E. 14th Ave. Denver, CO 80203 Via email only to: [email protected]

Re: EDI and CLE

Dear Ms. Stevens,

Continuing Legal Education ("CLE") has been an excellent mechanism to keep all attorneys proficient in our chosen profession and abreast of developments in our fields.

I do not look to the Colorado Bar Association, Continuing Legal Education, or the Colorado Supreme Court to form or develop my political or religious beliefs. To require conservative Christian attorneys to attend seminars based on the extremely liberal views of a minority of attorneys contrary to my own closely held religious and political beliefs has no place in our country or under our Constitution.

The Law Firm of Bruce A. Danford, LLC

~~~By: Bruce Alan i5allf01i,Esqo From: Deeny, Raymond M. To: stevens, cheryl Subject: Comment Regarding Proposed Change to Rule 250.2., CLE Requirements Date: Monday, March 29, 2021 12:59:51 PM Attachments: image001.png

Ms. Stevens,

I am writing to comment on a proposed change to the Rules of Professional Responsibility regarding continuing legal education requirements. The proposed change to Rule 250.2., CLE Requirements, includes “i. At least two credit hours in the area of equity, diversity, and inclusivity ….” I find this very confusing. Diversity and inclusiveness are aspirations. They are not legal requirements. The nondiscrimination laws and equal access to justice principles of the law embedded in the Declaration of Independence, the Constitution and Amendments should be every lawyer’s ethical responsibility to understand and uphold. I favor an ethical requirement that these matters be annually reinforced through CLE credit because as the name suggests, all lawyers need continuing education after law school and a bar exam as a reminder of their duty to society.

Raymond M. Deeny, Esq.

90 South Cascade Avenue, Suite 1500, Colorado Springs, Colorado 80903 Colorado Springs Direct: 719.448.4016 | Denver Direct: 303.299.8414 [email protected] | www.shermanhoward.com

CONFIDENTIALITY NOTICE

Hi Ms. Stevens,

I am writing in my individual capacity to strongly support the CLE rule change to include equity, diversity, and inclusivity (“EDI”). While I wish it was more than 2 hours over 3 years, it is a start. I want to emphasize that I believe the quality of the individual courses and facilitators that fit into the EDI category will ultimately determine how successful this requirement is and can be. Many thanks to those who have put the work in to getting us to this point.

Thanks,

Bobby

Bobby Dishell Attorney 303-291-1531

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1400 16th Street, 6th Floor Denver, Colorado 80202-1486

Office: 303 292 2900 Fax: 303 292 4510 www.moyewhite.com

Ms. Stevens:

I strongly support the proposed EDI rule change. The proposed rule is an important step in addressing racism, sexism, xenophobia, homophobia, and transphobia across our profession. Many aspiring attorneys have been denied opportunities due to the lack of understanding by traditional majorities in the profession. This rule would:

Align Colorado with a growing number of states have already recognized the need for training attorneys to be knowledgeable on EDI and cultural competence issues Guarantee a minimum level of education on equity and the disparate treatment that lawyers from disfavored groups have suffered in the past. Engage practitioners on EDI issues to move us forward as a profession for the communities we serve and help all attorneys foster better relationships with our staff, our clients, our colleagues, opposing counsel, and members of the public. Through consistent messaging and education, work to resolve these issues by enhancing cultural competency and empathy in working with people from every background. Help everyone recognize the unconscious filters and influence that reflects our socialization – and this data helps reverse the ill effects of implicit bias by exposing it and prompting us to act on it. Recognize people of every background in our profession. Put into action the anti-racist stance of the Colorado Judicial Department and bar community and actively address issues of systematic racism and discrimination. Send a message to our colleagues who experience racism, sexism, and other forms of bias that they are heard and that as a profession it will not be tolerated.

Lack of awareness on the part of some members of the profession may generate some opposition, but it is exactly this lack of awareness that perpetuates the false idea that these problems are minimal and will "self- correct" over time. Unfortunately, these problems do not self-correct, and should be addressed directly, through education and discussion.

I support the proposed rule. Robert Dodd Colorado Att'y Reg. No. 27869 From: Hetal Doshi To: stevens, cheryl Subject: Support for EDI Rule Change Date: Saturday, March 27, 2021 1:27:41 PM

Ms. Stevens:

I am reaching out in my personal capacity and as the former President of the South Asian Bar Association of Colorado to voice my strong support for the proposed EDI rule change. The proposed rule represents a small but vital step towards addressing issues such as racism, sexism, xenophobia, homophobia, and transphobia across our profession.

The topic is not only critical for lawyer competency, but also now is the time for such a rule change.

This rule is important because:

1. A growing number of states have already recognized the need for training our attorneys to be knowledgeable on EDI and cultural competence issues. I am also licensed in New York where this is already required. 2. EDI education is critical for our profession because we cannot be effective advocates if we do not understand the needs of our community, and more importantly, of any client who seeks our services. 3. Issues of equity don’t resolve without the education and open discourse that a mandatory CLE requirement creates – not as a short-term intervention, but as a consistent part of attorney education enhancing cultural competency and empathy in working with people from every background 4. Consistent and transparent EDI education works by helping everyone recognize the unconscious filters and influence that reflects our socialization – and this data helps reverse the ill effects of implicit bias by exposing it and prompting us to act on it to better serve our clients and as officers of the court. 5. This is the way to put action to the anti-racist stance the Colorado Judicial Department and bar community have taken in pledging to make our profession more equitable, for our judiciary to reflect all parts of our society, and to actively address issues of systematic racism and discrimination.

There are many other reasons to support this rule that you’ve no doubt heard from the community, but I want to emphasize that our ability to service our clients and be professional advocates inside and outside of court require an understanding of these issues. It is time to address this issue directly and I believe that this is one way to do that.

Respectfully submitted, Hetal Doshi Colorado Supreme Court Attn: Clerk of the Colorado Supreme Court, Cheryl Stevens 2 E. 14th Avenue Denver, Colorado 80203

Monday, March 29, 2021 Via Electronic Mail: [email protected]

University of Denver Sturm College of Law Office of Diversity, Equity, and Inclusion Associate Dean Alexi Freeman Jenipher R. Jones, Esq.

Re: Comment on the proposed regulations governing mandatory continuing legal and judicial education for the State of Colorado

Dear Chief Justice Boatright and the Justices of the Colorado Supreme Court:

On behalf of the University of Denver Sturm College of Law’s Office of Diversity, Equity, and Inclusion (‘DU Law ODEI’) and the Rocky Mountain Collective on Race, Place, & Law (‘RPL’) and in response to the solicitation for comments, we submit brief comments regarding the regulations governing mandatory continuing legal and judicial education for the State of Colorado proposed by the Colorado Supreme Court (‘The Court’). We appreciate the opportunity to offer comment. We write to offer full support for the proposed revisions to 103.1(1)(a)(iii)(3) as well as 250.2(1)(a)(i). Such revisions offer a definition for equity, diversity, and inclusion (‘EDI’) training as it relates to the practice of law and mandate EDI credits as part of continuing legal education for Colorado licensed lawyers. In 2017, the ABA proposed a model rule around EDI training for attorneys1 and over ten states have already mandated EDI-related training for attorneys It is time for Colorado to join this movement, which at this juncture, reflect national best practices.2 As we navigate dual pandemics – the public health crises of COVID-19 and racialized violence,3 including a rise in domestic hate related activity4 – we have been profoundly reminded that such crises consistently bear disproportionate effects on marginalized communities. The legal profession is not immune to such effects.5 Indeed, individual lawyers within our profession and the

1 ABA Resolution, Model Rule for Minimum Continuing Legal Education and accompanying report (Feb. 2017), https://www.americanbar.org/content/dam/aba/directories/policy/2017_hod_midyear_106.pdf. 2 Executive Order on Advancing Racial Equity and Support for Underserved Communities Through the Federal Government, January 20, 2021, https://www.whitehouse.gov/briefing-room/presidential-actions/2021/01/20/executive-order-advancing-racial- equity-and-support-for-underserved-communities-through-the-federal-government/, last visited March 28, 2021. 3 American Public Health Association, Racism is a Public Health Crisis.; Sandra L. Shullman, PhD, We are Living in a Racism Pandemic, Statement of American Psychological Association (APA) President, May 29, 2020. 4 Tim Arango, ‘Hate Crimes in U.S. Rose to Highest Level in More than a Decade,’ November 16, 2020, The New York Times. 5 Indiana University Center for Postsecondary Research- Law School Survey of Student Engagement (LSSSE), Diversity and Inclusion: 2020 Annual Survey Results, September 20, 2020, https://lssse.indiana.edu/wp- content/uploads/2020/09/Diversity-and-Exclusion-Final-9.29.20.pdf, last visited March 28, 2021.

1 University of Denver Sturm College of Law Office of Diversity, Equity, and Inclusion clients and communities we serve must similarly navigate the effects of structural and individual racism and inequities more broadly. To ensure our profession is responsive to the needs and realities facing Colorado communities, lawyers must at a minimum commit to being empathetic with colleagues and clients, and to providing culturally appropriate representation.6 Regular, consistent training is critical to maintaining such skills and deepening individual understanding of related issues.7 Requiring EDI training is a start towards developing such skills. Finally, a note on the specific language utilized by the Court: First, we particularly appreciate the Court’s proposed definition of EDI training. For far too often the structural barriers that underlie our profession are ignored, but the Court’s proposed language specifically acknowledges such barriers. Growth and reform on the individual and organizational levels must focus on explicit, implicit, hidden, and institutional challenges. Second, we affirmatively acknowledge and appreciate that the Court has embedded EDI training in its overall definition of professional responsibility. This placement signals its importance and expands lawyers’ understanding of their responsibility to each other and to our profession as a whole.8 We commend the Court for bringing issues of diversity and inclusion to the forefront and appreciate the opportunity to provide comments in support of the proposed rules. We look forward to similarly elevating this work at the law school level as we all strive to create a more diverse, equitable, and inclusive legal community in Colorado. Respectfully Submitted, /s/Alexi Freeman, Esq. Alexi Freeman, Esq. Associate Dean of Diversity, Equity, and Inclusion Director of Social Justice Initiatives Professor of the Practice University of Denver Sturm College of Law [email protected]

/s/Jenipher R. Jones Bonino, Esq. Jenipher R. Jones Bonino, Esq. Program Manager, Diversity, Equity and Inclusion and Social Justice Initiatives University of Denver Sturm College of Law [email protected]

/s/ Rocky Mountain Collective on Race, Place, & Law University of Denver Sturm College of Law [email protected]

6 See Fisher v. Univ. of Tex. at Austin, 579 U.S. – (2016) (slip. op. at 12) quoting Grutter v. Bollinger, 539 U.S. 306, 330 (2003). 7 For example, when discussing the need to develop cross-cultural lawyering skills, scholar Sue Bryant describes the process as creating and nurturing such skills as habits. See, e.g. Susan Bryant, “The Five Habits: Building Cross-Cultural Competence in Lawyers,” (2001). CUNY Academic Works, https://academicworks.cuny.edu/cl_pubs/258. 8 Fisher, supra Ft. Nt. 4 2 University of Denver Sturm College of Law Office of Diversity, Equity, and Inclusion From: Faulk, Mechelle Y. To: stevens, cheryl Subject: Comment to Proposed Rule Change - Rule 250.2 Date: Monday, March 29, 2021 8:47:49 AM

Dear Cheryl,

I write to provide comments upon the suggested rule change within Rule 250.2 relating to CLE requirements.

I am in favor of the suggested amendment, but I feel that only one credit in this area every 3 years is too little. Our rules should require at least one credit per year, if not more. Many such CLEs could be provided without cost to new attorneys or to attorneys who are struggling financially. However, attorneys understanding the perspectives, voices, and needs of all persons is vital to a working system of justice. The legal system is full of systemic racism. For example, nearly 100% of the people who are appointed to conduct parental responsibility evaluations (“PREs”) for our domestic cases are white. Those PREs very often view parenting, family interactions, and social/community interactions through the lenses of a white/Caucasian person. That viewpoint does not reflect many of Colorados families and, consequently, our system of law penalizes the way many diverse families live and interact by having them evaluated by “experts” who are not trained in cultural competence and having attorneys litigating the case with little to no experience on diversity training. Attorneys working in all practice areas should show a commitment to being part of the solution.

Mechelle Y. Faulk Litigation Counsel FAEGRE DRINKER BIDDLE & REATH, LLP 1144 15th Street, Suite 3400 Denver, Colorado 80202

303-607-3652 direct ***************************** This message and any attachments are for the sole use of the intended recipient(s) and may contain confidential and/or privileged information. Any unauthorized review, use, disclosure or distribution is prohibited. If you are not the intended recipient, please contact the sender by reply email and destroy all copies of the original message and any attachments. Thank you. ***************************** From: Fox, Jordan M. To: stevens, cheryl Subject: Comments on proposed Rule Changes for Rule 250.2. CLE Requirements Date: Sunday, March 28, 2021 7:46:50 AM Attachments: image001.png

Ms. Stevens, I am writing in support of the amendment to our CLE requirements to include dedicated training/education in the areas of diversity and inclusion. I would suggest that two hours is not enough and that it would be more effective with three required D&I ethics credits. Our practice contains so many areas that are full of implicit bias. Whether it be race, gender or socioeconomic status, participants in the legal process are NOT treated equally. A better understanding of how we view those with different backgrounds will enable us all to better understand their needs and perspectives. It is long past time that we made inclusiveness a reality rather than just a goal.

Jordan M. Fox

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CONFIDENTIALITY NOTICE

From: Emma Garrison To: stevens, cheryl Subject: Support for EDI CLE Requirement Date: Friday, March 26, 2021 3:31:38 PM

Ms. Stevens,

I have been licensed to practice law in Colorado for over 10 years and I am an active member of the Colorado legal community, having held multiple leadership positions in the Colorado and Denver Bar Associations as well as the Colorado Women’s Bar Association. I am writing to share my enthusiastic support for the proposed rule that would require Colorado attorneys to earn CLE credit on topics relevant to equity, diversity, and inclusivity. Lawyers and Judges have a duty to promote and ensure justice, and justice is simply not possible without addressing the deeply ingrained racism in our society. Additionally (and unfortunately), women still face discrimination, implicit bias, and sexual harassment. These issues are compounded for women of color.

In my capacity as a volunteer for the Equity, Diversity, and Inclusivity initiative for the Colorado and Denver Bar Associations, I spoke to the Diversity Development Program Director for the State Bar of Michigan to get ideas about how we can achieve better diversity and inclusion in Colorado. One of my main takeaways from this conversation was the importance of having a shared language around the issues of equity, diversity, inclusivity, and anti-racism. EDI education is an important and necessary step to develop this shared language, understand the extent of the problem, and begin the process of undoing systemic racism and providing meaningful access to justice for all.

I am also a licensed member of the California bar, which requires CLE credit on diversity and inclusivity topics each reporting year. I have attended these programs by webinar and have always found them helpful. Furthermore, making this a mandatory requirement sends a message that diversity, equity, and inclusivity is an important value of the California bar and should be incorporated into the practice of every California lawyer. Colorado should do the same.

This requirement would simply be an extension of the values already expressed in the Preamble to the Colorado Rules of Professional Responsibility, particularly sections [1] and [6], which emphasize a lawyer's responsibility for the quality of justice and the importance of access to justice.

Thank you,

Emma Garrison

CO Bar No. 42110 From: Tyrone Glover To: stevens, cheryl Subject: Public Comment in SUPPORT of Rule 250.2 Equity Diversity and Inclusivity CLE Requirement Date: Monday, March 29, 2021 2:52:20 PM

Ms. Stevens,

I support the proposed EDI CLE requirement. For far too long, I watched our profession put on its heels when faced with crises around equity, diversity, and inclusivity. We are constantly reacting when we should be leading on these issues. This last year has been particularly telling. Whether it was last summer’s racial justice protests, the lack of inclusiveness on our bench, the allegations of sexual harassment and sex discrimination in the judicial department, or the rise in anti-Asian hate, we found ourselves reacting and scrambling to bring the profession current. The EDI CLE requirement will incentivize the educational framework we need to get out ahead of matters that affect marginalized groups and will place lawyers and judges in a position to lead both the profession and the community. I consider Colorado to be a nationwide thought leader, not follower, when it comes to important issues. It is time we take our rightful place as leaders with the other states that have adopted similar EDI CLE requirements.

I would like to sign up to speak as well.

Tyrone Glover Attorney Bio Civil Rights. Criminal Defense Killmer Lane & Newman, LLP 1543 Champa St., Suite 400 Denver, CO 80202 (303) 571-1000 Ph. (303) 571-1001 Fx. [email protected] www.kln-law.com ( From: Peter B. Goldstein To: stevens, cheryl Subject: Proposed Rule 250.2 Date: Monday, March 29, 2021 8:43:03 AM Attachments: image002.png

I am writing in favor of Proposed Rule 250.2. Attorneys and judges do not have to be racist to suffer from implicit bias, as studies have shown. The best way to combat implicit bias and strengthen the public’s faith in the judicial system is through education and, in particular, continuing legal education in the areas of equity, diversity, and inclusivity. Colorado has demonstrated that it is a leader in innovation in mental health through such programs as COLAP. It should continue to demonstrate leadership through the adoption of this amendment.

Peter

Peter B. Goldstein Special Counsel 1125 17th Street Suite 450 Denver, CO 80202 303-515-5000 303-299-9554 (fax) Wisdom, Strength and Peace of Mind [email protected] www.harrisfamilylaw.com

PLEASE NOTE: The information contained in this transmission is attorney/client privileged and confidential information intended only for the individual or entity to whom it is addressed. If the reader of this message is not the intended recipient, you are hereby notified that any dissemination, distribution or copying of this document is strictly prohibited. If you have received this message in error, please notify the sender immediately via the e-mail address indicated. Thank you.

From: Gonzales, Clarisse - DCC Judge To: stevens, cheryl Subject: EDI training is needed Date: Saturday, March 27, 2021 5:11:16 PM

I support making this a required element of CLE. Thank you, Clarisse Gonzales From: Amy Goscha To: stevens, cheryl Subject: Rule 250.2. CLE Requirements Date: Sunday, March 28, 2021 2:44:14 PM Attachments: image001.png

Hi Cheryl:

I would be in favor of the proposed rule change to include i. At least two credit hours in the area of equity, diversity, and inclusivity

Thanks. Amy Goscha Kalamaya | Goscha 970.306.6178 (direct) web | bio | map

March 2, 2021 Via E-mail: [email protected]

Cheryl Stevens, Clerk of the Colorado Supreme Court 2 E. 14th Ave. Denver, CO 80203

Re: EDI and CLE Requirements

Dear Ms. Stevens,

As a relatively new lawyer, I have benefitted from Continuing Legal Education (CLE) and recognize its value. Whether I want to learn more about my ethical responsibilities, some new area of law, or areas of my practice about which I do not know enough, I trust the CLE system to provide me with expert analysis that will further my career. I also trust that the education I receive is not tainted by a certain viewpoint.

For this reason, I was very disappointed to hear that the CLE system may soon become a vehicle for imposing certain values and forcing me to attend classes concerning them as a condition for keeping my law license. I am interested in learning and honing my abilities and my practice through CLEs, not adopting a certain ideology or having its values imposed on me. Forced education concerning equity, diversity, and inclusiveness is an inappropriate requirement. Requiring lawyers to attend seminars based on liberal or progressive values has no place in CLE. Moreover, I am concerned that imposing values in this way may make some resentful, completely undermining the efforts to educate.

As a new lawyer, I would prefer that CLEs continue to offer subjects that are relevant and helpful to my practice. Forcing attorneys to sit through classes concerning an ideology with which they may disagree as a condition to practicing their vocation is completely inappropriate. I hope that our new CLE requirements will not force me to spend time away from practicing law to focus on the preferred values of certain groups.

Sincerely,

Brenton L. Gragg, Esq. Reg. No. 52528 From: Skip Gray To: stevens, cheryl Subject: DEI CLE Date: Sunday, March 28, 2021 4:11:06 PM

I support the rule change.

~Skip Gray III, Esq. #15580 Sent from my iPhone (303) 249-5342 March 29, 2021

Via Email

Hon. Brian D. Boatright (Chief Justice) All Associate Justices Colorado Supreme Court 2 East 14th Avenue Denver, CO 80203

Re: Comments to Proposed Regulation 103.1 (a) (iii) (3) of the Colorado Regulations Governing Mandatory Continuing Legal Education and Judicial Education for the State of Colorado

Dear Chief Justice Boatright and all Associate Justices:

Pursuant to the Colorado Supreme Court’s Notice of Request for Comments to the above proposed regulation, I respectfully submit these comments.

Introduction

The underlined additions and changes below should be made for the following reasons: a. Failure to do so would permit accredited mandatory CLE programs to be used to promote or condone racism or sexism; b. Requiring attendance at certain accredited mandatory CLE programs could violate the constitutional rights of the attendees; c. Failure to do so would permit accredited mandatory CLE programs to be used for purposes of political indoctrination; and, d. “Equity” is a political policy supported by the current Biden administration and Black Lives Matter which calls for the unequal treatment of groups and individuals based on race and is the antithesis of constitutional equal protection.

Proposed Changes

3. Equality, diversity, and inclusivity (EDI): an activity or portion within an activity that addresses standards of conduct in the legal profession related to the recognition, mitigation and elimination of bias, equal access to justice, and service of diverse populations. Courses should educate lawyers as to the aspirations that surpass ordinary expectations to further promote the ideal and goals of professionalism, including but not limited to:

• Recognition, mitigation and elimination of implicit and explicit bias; • Diversity and inclusion initiatives in the legal profession; and/or; • Equal access to opportunities and resources by identifying and eliminating barriers that face marginalized groups, by acknowledging

{00333383 / 1} and understanding ingrained and systemic structural biases in society, and by committing to address these disparities. Marginalized groups include, but are not limited to groups that are historically underrepresented based on factors of culture, disability, ethnicity, gender and gender identity or expression, geographic location, immigration status, national origin, race, religion, sex, sexual orientation, socioeconomic status, and veteran status.

Race or sex stereotyping or scapegoating shall be prohibited in accredited CLE programs. “Race or sex stereotyping” means ascribing character traits, values, moral and ethical codes, privileges, status, or beliefs to a race or sex, or to an individual because of that individual’s race or sex.” “Race or sex scapegoating” means assigning fault, blame, or bias to a race or sex, or to members of a race or sex because of their race or sex. It similarly encompasses any claim that, consciously or unconsciously, and by virtue of a member’s race or sex are inherently racist or inherently sexist and are inclined to oppress others.’

The following race or sex stereotyping or race or sex scapegoating topics shall be prohibited in accredited CLE programs:

• One race or sex is inherently superior to another race or sex.

• An individual, by virtue of that individual’s race or sex, is inherently racist, sexist, or oppressive, whether consciously or unconsciously.

• An individual should be discriminated against or receive adverse treatment solely or partly because of that individual’s race or sex.

• An individual’s moral character is necessarily determined by that individual’s race or sex.

• An individual, by virtue of that individual’s race or sex, bears responsibility for actions committed in the past by other members of that individual’s race or sex.

• Any individual should feel discomfort, guilt, anguish, or any other form of psychological distress on account of that individual’s race or sex.

• Meritocracy or traits such as a strong work ethic are racist or sexist, or were created by members of a particular race or sex to oppress members of another race or sex

{00333383 / 1} Respectfully submitted,

Tennyson W Grebenar

#3202 inactive retired

{00333383 / 1} From: Nicole Greene To: stevens, cheryl Subject: Comment in support of the rule change requiring an EDI CLE requirement Date: Friday, March 26, 2021 1:21:46 PM

Dear Cheryl,

There is no question that we have work to do when it comes to fighting anti-Black racism - as well as all forms of oppression - in the legal profession and systems.

As a biracial woman, it speaks volumes to me that members of the specialty bar associations are making this recommendation. If the diversity council is putting this recommendation forward, then I am listening to those voices and hoping that other people will do the same.

Transformation is needed, and this is a tiny step in the right direction.

I fully support this rule change and hope that it sparks much-needed change in our legal profession and systems.

Sincerely, Nicole Greene

Nicole Greene Associate Attorney Cheney Galluzzi & Howard, LLC 1888 North Sherman Street, Suite 200 Denver, Colorado 80203 [email protected] www.cghlawfirm.com Find me on LinkedIn T: (303) 209-9395 F: (303) 845-7082

This email and any files transmitted with it are confidential and intended solely for the use of the individual or entity to whom they are addressed. If you are not the named addressee, please notify the sender immediately at “[email protected]” and delete this email and any attachments from your system. Dear Colorado Supreme Court,

As an ethnic and religious minority practicing in a largely nondiverse profession in a nondiverse state, I have often felt that minorities carry a substantial burden to educate our peers regarding important DEI issues--a burden that takes an emotional toll and often goes unnoticed.

As a former member of the President's Diversity Council, as well as a leader in the state's diversity bar associations, I feel the time is now to adopt this change that is a small, but substantial step in the direction of a real commitment to diversity and inclusion.

Many thanks, Yamini Piplani Grema

March 29, 2021 Douglas R. Griess, 34829 1601 Blake St, Suite 310 Denver, CO 80202 [email protected] Cheryl Stevens Clerk of the Colorado Supreme Court 2 E. 14th Avenue Denver, Colorado 80203 [email protected]

COMMENTS REGARD PROPOSED RULE AND REGULATIONS CHANGE

The undersigned lawyers are writing to comment on the proposed changes to the Colorado Rules of Procedure regarding Mandatory Legal Education and Judicial Education, Rule 205.2 CLE Requirements, and the Regulations Governing Mandatory Continuing Legal and Judicial Education, Regulation 103.1, Standards for Accreditation of CLE Programs.

Professionalism Change We first want to express support for the alteration of the mandatory requirement from being solely focused on ethics under the Rules of Professional and Judicial Conduct to a broader “professional responsibility” category.

We also support the proposed definitions within the standard for accreditation related to legal ethics and legal professionalism.1

EDI However, with regard to the new category of equity, diversity, and inclusion (EDI), we provide the following substantive comments for consideration regarding the definition of EDI to be used for accreditation and a mandate of EDI as it is currently defined.

Initially, it is important to focus on the specific concerns at which an EDI requirement is aimed. We understand that the EDI requirement being proposed arises out of a desire to specifically promote: the integrity of the legal system and profession, equality before the law, equal access to justice for all, and public confidence in the legal profession.

It is important to note that these goals are procedural in nature.2 The right to participate is essential, but the outcomes are not predetermined.

While these concerns are the governance basis for the proposed rule, a survey of the advocacy for this proposed rule, as well as similar rules in other states, demonstrates that the rules are often specifically aimed beyond these issues—to the goal of particular, and equitably desirable,

1 Regulations Governing Mandatory Continuing Legal and Judicial Education, Regulation 103.1, Standards for Accreditation of CLE Programs, 103.1 (1)(a)(iii)(1) and (2). 2 While integrity, access, and confidence are results, they are procedural results that open doors to afford opportunities for everyone to engage in the system from their vastly different backgrounds and circumstances. Page 1 of 11 results. For example, the goal is to get rid of systemic inequalities by altering the means by which the results occur.3 To support this program, the failures of large firm efforts and the continuation of unexamined implicit biases are highlighted, along with assertions that such changes will be good for the practice and business of law.

These are extremely important problems that need to be addressed, but it is equally important that in addressing these concerns, we do not sacrifice the integrity of the legal system even slightly in order to satisfy popular sociological demands or interests. We must recommit to the profession’s independence, including each lawyers’ freedom to advocate, advise, and represent both popular and unpopular positions, beliefs, and arguments.4 Unfortunately, the proposed Rule and Regulations fail to strike that critical balance.

Specific Concerns Beyond Ordinary Professionalism First, the rule seeks to mandate education in an area that is beyond ordinary professionalism. The rule even states that “[c]ourses should educate lawyers as to the aspirations that surpass ordinary expectations to further promote the ideal and goals of professionalism.”5 In short, the regulation admittedly goes beyond legal professionalism to require education on a particular demand for what legal professionalism should look like in specific situations.

As the Court knows, Subsection 2 of the proposed regulation already includes a clear definition of “legal professionalism.” As a part of that definition, the Rules of Professional Conduct and the Oath of Admission are included. The Oath includes a specific standard to which attorneys will commit such as: employing means that are consistent with truth and honor, fairness, courtesy and respect, use of knowledge for the betterment of society and improvement of the legal system, and not rejecting the cause of the defenseless or oppressed. Furthermore, the Colorado Principles of Professionalism are included in “legal professionalism” under the proposed Rule.6

In contrast, the proposed regulation shifts from the focus on “professionalism” to an amorphous promotion of “the ideal and goals of professionalism” despite the specific set of expectations to

3 Notably, the doctrine, concept, and/or meaning of “systemic inequalities,” related to, or also referred to as, systemic bias, institutional racism, systemic racism and other variations, is the subject of serious debate, discussion, and analysis, with different groups advocating for different meanings and application. Consider e.g., Mansfield, Harvey C., The ‘Systemic Racism’ Dodge, Wall Street Journal, September 18, 2020, https://www.wsj.com/articles/the-systemic-racism-dodge-11600454532. A quick search of “systemic racism” on the internet demonstrates the variety (with the understanding that the search algorithm employed in such searches likely provides “biased” results tailored to the user). 4 See C.G.E.A.B. Advisory Opinion 2020-02, effective July 17, 2020. In the context of professionalism for Judges, the Advisory Opinion points out that statements that call on lawyers to reflect upon, reform, and improve the justice system are acceptable because they are not political and do not call into question the integrity or impartiality of the judiciary, but rather instill public confidence, and promote ethical conduct by promoting access to justice for all. Equally important to the present discussion, that Advisory Opinion also states as follows: “While a judge may make statements intended to improve the legal system and to promote access to justice for all, judges must take caution that their statements do not give the appearance of bias or that they are political or divisive.” The Opinion also states as follows: “Regardless of non-partisan aspirations or a judge’s subjective belief that he or she is ‘doing the right thing,’ the Code provides that judges should not be swayed by public clamor or fear of criticism and must not permit social, political, or other interests to influence the judge’s conduct or judgment. (Citing to C.J.C. Rule 2.4.). 5 Reg. 103.1 (1)(a)(iii)(3) (emphasis added). 6 Notably, the Colorado Principles of Professionalism are a non-binding guide. Page 2 of 11 which all practicing lawyers have already committed. The problem is not necessarily that parts of the EDI regulation are inconsistent with professionalism, but that it purports to add-on to the actual definition of professionalism by including amorphous and ambiguous aspirations that are easily warped and manipulated so that professional requirements can be used to exclude lawyers who do not wholeheartedly, or at least superficially, adopt those newly-added aspirations. In short, a lawyer can be professional under the oath, rules, and guidelines, but still be suspended (or certainly professionally excluded from the community) if the lawyer is not actively adopting and supporting the particular aspirations presented by the regulatory authorities that surpass ordinary expectations.

This is wrong and must be changed.

Bias Second, the proposed rule purports to change the standard of conduct for attorneys, including requiring assent, or agreement with, particular views of bias, which themselves are ironically a form of explicit bias. The proposed rule states that EDI courses are to be “an activity that addresses standards of conduct in the legal profession related to the recognition, mitigation and elimination of bias, equal access to justice, and service of diverse populations.”7 While equal access to justice is appropriate, this definition otherwise incorrectly mandates a particular view of professional conduct concerning “bias.”

As the Court knows, the term “bias” means an inclination of temperament or outlook, which can often be an unreasoned judgment.8 In the context of judging, bias implies a prejudgment in favor of one of the parties to a suit.

In contrast, lawyers in a case or controversy have a bias specifically for their clients and/or for particular positions, even while they are being entirely professional. While the term “bias” can often have a negative connotation, it does not always. A presumption that linguistic connotations will prevent biased usage, are reliable for regulatory accountability, or will prevent ambiguity, is wishful thinking. One can have a bias or leaning that is good or bad, accurate or inaccurate, relevant or irrelevant, appropriate or inappropriate.

The problem is that reasoned, rational, accurate, and relevant judgments can be labeled a “bias” by someone who disagrees or opposes that judgment, and often will be.9

Upon a review of the existing “implicit bias” literature, it appears that the real goal of education on implicit bias is to engage in self-examination of such biases so that they can be rationally and internally governed. Furthermore, such self-examination does not take place in a vacuum. Such biases must be examined within a context, and that context very often predetermines how such biases are judged. Accordingly, the examination of implicit bias must be within the context of how they affect particular professional goals and ends to which the profession subscribes, such as integrity, equal access, and equality before the law. As discussed below, the context of the

7 Reg. 103.1 (1)(a)(iii)(3). 8 See e.g., https://www.merriam-webster.com/dictionary/bias. 9 In fact, as the Court knows, this happens all the time, especially as divisiveness has increased in our political and cultural context, and both civility and graciousness are harder to find. Page 3 of 11 regulation is not these specific areas, but instead particular social, cultural, and political results, as well as obtaining all lawyers’ assent to those predetermined results.

Each person has biases, as the literature points out, but biases are not a priori unprofessional. They are in fact the result of each person’s experiences, beliefs, cultural background, and even careful consideration. In short, people’s biases are part of what make them diverse. The regulation, as stated, and at best, only implies an appropriate context and can therefore be too easily used to exclude from practice and show hostility toward lawyers with unpopular or culturally disfavored backgrounds, experiences, beliefs, positions, arguments, and judgments. In short, the regulation does not provide the necessary guidance for the accreditation of the types of courses that will support the profession on the issues presented, but instead tilts in favor of a biased view that, if ultimately mandated, can easily be used to accredit courses that undermine the profession internally, and confidence in the profession by the public.

We believe that the proposed rule must intend, and should therefore state that, “bias” means (and is limited to) an inaccurate, irrelevant, or prejudicial partiality in the context of equal access to justice and equality under the law.

Results Mandate and Attorney Compulsion Third, the last example of accredited courses in EDI goes far beyond legal professionalism to both a presumptive results mandate and an attorney compulsion. This undermines equal access to justice, integrity of the profession, and equality before the law.10

The regulation asserts that mandated courses will address “equitable access” by eliminating barriers for “marginalized groups,” lawyers “acknowledging and understanding ingrained and systemic structural biases in society, and by committing to address these disparities.”11 It then defines marginalized groups as primarily those historically underrepresented, freezing in time those groups for whom attorneys are presumably committed to advancing as a part of professionalism.

First, this course example is a problem because it specifically focuses on particular intended outcomes for only a portion of the society that we serve. This specificity flies in the face of the legal professions obligation to work for equal access for all, and equality for all before the law.12

10 It should be pointed out that advocates of the EDI education rules often respond to objections that assert that the rules impose particular views or positions through the education, or those who raise concerns about divisiveness and political influences in the courses, as a misunderstanding by such persons of the real intent of the proposed rules. See Response Letter to Mailbag, Colorado Lawyer, February 2021, p. 12. Specifically, the response is that the rules are intended to help attorneys and judges to better empathize, and to help attorneys recognize how their own experiences influence their decision. Id. Unfortunately, if this is the real intent, it is contradictory to the actual language of the regulation which never mentions empathy and never stops short at attorney “recognition.” Instead, the rule specifically expects that the accredited courses will result in lawyer action, assent, and commitment to particular results and perspectives, i.e., lawyer “recognition, mitigation, and elimination of…bias,” “identification and elimination of barriers” that face specific people groups, “acknowledging and understanding ingrained and systemic biases in society,” and “committing to address…disparities.” 11 Reg. 103.1 (1)(a)(iii)(3) (emphasis added). 12 “Historically underrepresented” has significant additional problems in that it only implies a particular history within a particular place, wherein the underrepresentation has occurred. Despite “including but not limited” language, it is certainly intended to limit the persons recognized as “marginalized” to particular groups. The Page 4 of 11

It is often true that those who need our assistance the most are those who do not have access or are treated unequally. However, they are legally “marginalized” because they lack the access and are not treated equally, not because they are historically and statistically underrepresented. Furthermore, under this definition, today’s “historically underrepresented” never become un- marginalized despite their level of representation, and tomorrow’s “underrepresented” are never recognized as marginalized despite their marginalization in-fact.13

Second, this course example is a problem because it is about requiring attorneys to work on extra-judicial remedies for injustices to particular groups, and about requiring attorneys to organize to engage in efforts to change the substantive law to remedy social and cultural systems that reinforce disparate outcomes.14 That is impermissibly political in intent and nature.

One part of this problem is that the protected classes and groups are not innocuous, apolitical, or unbiased themselves. They include cultural, moral, political, and social preferences that they seek to advance within the legal system and society. We can agree to seek equal access to the system, and equal treatment before the law, but we do not, and should not, all be required to agree to, or be forced to commit to, any particular groups’ or interests’ specific end-goals, demands, methodologies, or results.

Here, the mandatory course calls for lawyers’ participation in accomplishing certain ends as a professional duty, the existence and reasons for which each attorney will be trained to “acknowledge and understand.”15 Furthermore, the course uses equity in a legally suggestive manner.16 “Equity” is defined in Merriam-Webster first as “justice according to natural law or right” or “freedom from bias or favoritism.”17 In the legal context equity is the settled system of law and procedural rules that supplement, aid, or override common or statutory law to protect rights and enforce duties fixed by, even intended by, the substantive law.18 Here, “equity” is used to mean the application of discretionary remedial measures, by attorneys in favor of the preferred ends, even though that power is only available to a court addressing a case or controversy when a

definition itself reveals that it is not the language that creates the limitation, it is the preference and perspective brought to the definition, i.e., our bias (perhaps a reasoned judgment, but a bias nonetheless) about the when and where that matters, that results in the limitation. 13 This type of categorical exclusion from protection is unconstitutional. Romer v Evans, 517 US 620 (1996). 14 It may be fashionable to assert that nobody is requiring action, only education, but this is a thin argument, like arguing that re-education camps are only about being informative. On the other extreme, it may also be fashionable to assert a dichotomy, that there can be no “neutrality” – either attorneys are for the right cause, or they are against it. But this is not only presumptive, extremely divisive, and arrogantly dogmatic, it is essentially a marketing message designed to sell its own predetermined conclusion. There may be substance behind the specific position, but that is precisely what is not on the table for discussion in mandatory education that dictates the problem, causes, and solutions. 15 See Reg. 103.1 (1)(a)(iii)(3). For purposes of this argument, we are not asserting that the reasons do not exist, or that the ends are not good. We are however, objecting to being force-fed conclusions while also being excluded from the opportunity to debate and engage in “cross-examination” regarding the foundations, assumptions, and reasoning that lead to those conclusions. In short, we specifically do not agree that lawyers should be treated as ignorant unthinking dolts who are incapable of engaging in the analysis, who cannot be trusted to reach reasoned and legitimate conclusions, or who should be treated as automatons to be programed into delivering currently desired results. 16 If “equity” means equally and fairly, then it would say so. 17 https://www.merriam-webster.com/dictionary/equity. See also Black’s Law Dictionary. 18 Id. Page 5 of 11 legal remedy is inapplicable. In short, the example cloaks legal activism for particular causes as a general professional duty.

The regulation example begins to include within lawyer admission and maintenance, a compulsory affirmation and adoption of the authority’s political and sociological priorities. This is unconstitutional and a dangerous line to cross.19

In contrast, while pro bono work is advocated by the profession, it is not mandatory. This is because it is one thing to require attorneys to maintain their existing commitment to apolitical professionalism, integrity of the profession, equal access to justice, and equality for all before the law, but it is quite another to require attorneys who would not voluntarily do so, to engage in advocacy for particular societal or political causes, positions, and beliefs, no matter how virtuous.

We must have the humility to recognize that we are a diverse community that does not all agree on everything, or on how to affect even those things on which we do agree. Even when we are each confident of the virtue of our own goals, we must not engage in mandates, dictation, and coercion, but instead respectfully engage one another with invitation, advocacy, and persuasion to change each other’s, and our society’s, hearts and minds. We cannot allow the clamor of particular interests, no matter how good, to change our fundamental approach to professional self-regulation.20

Accordingly, while courses that promote pro bono work, civil rights work, religious freedom, and many other good ends should be accredited and even encouraged, they should not be mandatory because such mandates both cheapen those activities21 and are inherently a structural

19 See W. Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943) (striking down a school district’s mandatory salute and pledge to the United States flag during World War II). The Barnette case states:

If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein. If there are any circumstances which permit an exception, they do not now occur to us.

We think the action of the local authorities in compelling the flag salute and pledge transcends constitutional limitations on their power and invades the sphere of intellect and spirit which it is the purpose of the First Amendment to our Constitution to reserve from all official control.

Id. at 642. 20 No system’s integrity is undermined because the advocates for its alteration seek bad outcomes. The alteration occurs for presumptively virtuous reasons which are embraced. But once the integrity is compromised, there is less to restrain both the twisting and manipulation of the original goals, and the introduction of alternative goals. 21 For example, the governmental establishment of specific religious denominations, licensing of preachers, and use of taxes to fund state-supported churches is believed to have undermined the vitality of those churches, as well as the interest or commitment of citizens to those churches, while the limitation of government involvement in religion is believed to have contributed to its flourishing. See Waldman, Steve, Founding Faith: How Our Founding Fathers Forged a Radical New Approach to Religious Liberty. New York, Random House, 2008 (specifically, Chapter 17, They Where Right, pp. 200-205, discussing James Madison’s adopted approach of preventing both governmental restraint and support of religion, and the approach’s effects.) Page 6 of 11 bias that undermines the profession’s integrity by tipping the scales against the very professional independence and impartiality that makes confidence in the profession, equal access, and equality before the law possible – particularly for the oppressed, outcast, and marginalized. To do otherwise will undermine diversity and inclusion and will thereby be inequitable.

Comparison to Other Rules Colorado should be a leader on these issues, by charting a course that does not err either by ignoring the work needed within the legal system, nor by inadvertently undermining the profession’s integrity. What the EDI rule should be aimed at addressing that which is not political or divisive, namely: equal access to justice, equality before the law, professional integrity, and public confidence in the profession. However, the actual proposed rule, and the express intent stated in much of the advocacy for the rule, goes well beyond such concerns and actually undermines the profession’s independence and integrity. This is not good leadership but misdirected hubris, and a review of the EDI related rules and regulations being adopted around the country illustrate this.

Advocates of EDI rules for mandatory education assert it is a growing trend and essentially inevitable.22 This is speculative.23 Regardless, the ABA model rule was created in February 201724 and has been both rejected, partially adopted, but mostly substantially modified, including non-mandatory adoptions in seven states.25

The ABA Rule is expressly and directly focused on diversity and inclusion in the legal system, i.e., equal access for “all persons.”26 The comments point out that the proposed programming “can be used to educate lawyers about implicit bias, the needs of specific diverse populations, and ways to increase diversity in the legal profession.”27 However, while the Model Rule seems directly related to equal access issues, including examining biases in relation thereto, the states

22 Hernández, C. and Martínez, A., Leading the Way to a Diversity-Focused CLE Requirement, Colorado Lawyer, Vol. 49, No. 11, December 2020. 23 To argue this way is just as relevant as the following assertion: that the states who provided delegates which supported the rule or supported it in a more expansive form than adopted by the ABA are the ones who have in fact adopted a rule, while the moderating or dissenting voices are being ignored. 24 ABA Model Rule for Minimum Continuing Legal Education, February 2017, https://www.americanbar.org/content/dam/aba/directories/policy/2017_hod_midyear_106.pdf. 25 Of the states we could find at this time, seventeen states other than Colorado, have considered, or are considering or re-considering, a CLE requirement related to bias, diversity, and/or inclusion. Seven states, Florida, Hawaii, Kansas, Nebraska, Washington, and West Virginia, specifically state that some variation of the category will count toward their ethics and/or professionalism requirements without mandating such courses. Eight states, California, Illinois, Maine, Minnesota, Missouri, New Jersey, New York, and Oregon mandate courses within the category. Washington is currently reconsidering a revised mandatory requirement and Tennessee is considering a mandatory requirement. See Washington Supreme Court Order 25700-a-1335 at https://wsba.org/docs/default-source/legal- community/committees/mcle-board/supreme-court-order-25700-a-1335.pdf?sfvrsn=a0c615f1_4; Tennessee Supreme Court ADM Order 2020-01728 at https://www.tncourts.gov/rules/proposed/. Texas’s committee unanimously rejected a mandatory subcategory within its ethics and professionalism requirement. See Weiss, Debra Cassens, Proposal for mandatory implicit bias training is rejected by Texas bar committee, ABA Journal, January 28, 2021, at https://www.abajournal.com/news/article/proposal-for-mandatory-implicit-bias-training-is-rejected-by- texas-bar-committee. Arizona was cited by authors of the Colorado Lawyer article advocating for the rule and identified above in fn 10, but we could not find any related Rule in Arizona. 26 Id. Section 1(C). 27 Id. Report, IV.C. Page 7 of 11 vary on this, and many state rules go beyond the Model Rule. Notably, as will be discussed, the proposed rule in Colorado is one of the rules least like the Model Rule, and one of the most extreme in its problematic language.

Of the eight states that have adopted a mandatory requirement, only Missouri appears to follow the Model Rule’s lead.28 Several states expressly include a mandate for education on the elimination of bias without tying the meaning of “bias” to the specific context of equal access or equality before the law.29 Other states have diversity, inclusion, and/or implicit and explicit bias as required course categories, but then clarify within the accreditation requirements that such courses are to focus on elimination of bias.30 As a particular example, while the Illinois rules reference simply “diversity and inclusion,”31 the discretionary implementation appears to go much further—and is focused on “elimination of bias,” “rebalancing the scales,” and “reimagining law.”32

28 Rules Governing the Missouri Bar and the Judiciary – Continuing Legal Education, Rule 15.01 (10) and (12). 29 For example, Calif. State Bar Rules Title 2, Div 4, 2.52(F) focuses on implicit bias and the promotion of bias- reducing strategies, while its Rule 2.72(b)(2)(a)(ii) focuses on elimination of bias in the legal profession. It appears the focus in California is on public confidence in the legal system more than equal access, equality before the law, or integrity of the legal profession. http://www.calbar.ca.gov/Attorneys/MCLE-CLE/Rules. Maine’s requirement is directly related to its adoption of ABA Model Rule 8.4, which the ABA has basically admitted may contain serious Constitutional flaws directly related to the chilling of free speech. See Kubes, K., Davis, C., and Schwind, M., The Evolution of Model Rule 8.4 (g): Working to Eliminate Bias, Discrimination, and Harassment in the Practice of Law, ABA Website, March 12, 2019 at http://www.americanbar.org/groups/construction_industry/publications/under_construction/2019/spring/model-rule- 8-4/. See also Greenberg v. Haggerty, 2020 WL 7227251 *8 (E.D. Pa. Dec. 8, 2020), appeal dismissed, 20-3602 (3rd. Cir. March 17, 2021)(amendments to Pennsylvania rules of professional conduct rule proscribing “words [that] ... manifest bias or prejudice,” constituted viewpoint-based discrimination in violation of the First Amendment; motion for preliminary injunction granted). Maine’s focus is on harassment and “discriminatory communication or conduct” rather than on bias, diversity, or inclusion and is essentially an outlier. See https://mebaroverseers.org/regulation/bar_rules.html?id=638733. Minnesota’s Rules and accreditation requirements focus almost exclusively on elimination of bias against persons within protected classes. Minnesota Rules of the Board of Continuing Legal Education, Rules 2.G. and 6.B, effective July 1, 2016, at https://www.cle.mn.gov/rules/. 30 Compare e.g, New York CLE Program Rules, 22 NYCRR 1500, January 1, 2018, Rule 1500.2(c), (g) 1500.12(a) with Rules 1500.4(2) and 1500.22(a). 31 Ill. S. Ct. R. 794(d). As noted in comments already, the problem is that the education requirement is being promoted with at least an implied purpose to support equal access, equality before the law, and integrity of the system, in the form of creating professional environments for investigating, examining and dialoguing regarding shared concerns in the profession. However, in practice, the implementation and accreditation requirements or practice reveal that any such education will take place with particular, biased, and unassailable presumptions in which lawyers will be guided or trained to reach the predetermined conclusions. And this, under threat of professional discipline for any failure to submit. 32 See Illinois among minority of states requiring CLE on mental health and diversity issues: Q & A on recent amendments to Ill. S. Ct. R. 794(d), The Challenge, February 2019, Vol. 28, No.1, https://www.isba.org/committees/minorities/newsletter/2018/02/illinoisamongminorityofstatesrequir, as well as the resources for the Illinois Commission responsible for oversight of CLE approval, https://www.2civility.org/diversity/. Notably, while the Rule itself may be viewed as fairly neutral, the implementation by Illinois is not. Instead, the implementation is itself biased toward a particular presumption, not only regarding the nature and character of the problem, but toward specific prescribed means for addressing the problem, and pre-determined results. Page 8 of 11

Access to justice and to the legal system is one thing, but “rebalancing the scales” and “reimagining law” are drastic changes of seismic political proportions.33 These do not simply work on professionalism, equal access, or equality before the law, but seek to change the scales of justice for a particular position or to come up with ways to change the entire legal system.

Unfortunately, the proposed rule as drafted goes down the wrong path and has some of the most problematic language compared to other states and therefore cannot be justified as part of the current state trends, even if relevant.

First, the rule embeds inequality, rather than equal access for all as pointed out in the ABA Model Rule. This is done within the last “example” of accredited courses listed in the regulation. The only potential equivalent is in Oregon which includes a similar definition for marginalized persons as those historically underrepresented.34 That definition does not apply to accreditation or course requirements, but even there, Oregon expressly states in the definition that “Equity” is about “ensuring that all individuals and groups have fair access to the same opportunities and resources”35 a sentiment Colorado’s proposed regulation omits.

Second, the rule puppets the false expectation introduced by some of the states, that explicit and implicit bias can, or should, be eliminated, without tying it directly to the context of equal access to justice, and without protecting against the dangerous likelihood that labels of bias will just become a means to chill, punish, and target disfavored judgments held by minority viewpoints and dissenters. “Elimination of bias” jumps to foregone conclusions about the specific nature and context of biases held by attorneys, without engaging the profession in the evaluation, examination, and careful distinction between accurate or inaccurate, relevant or irrelevant, and appropriate or inappropriate, biases.

Third, unlike other states, the Colorado regulation admits explicitly that the standards of professionalism are not the focus of the EDI requirement. Rather, assent and commitment to particular, extraneous preferred goals and results, i.e., “the ideal and goals of professionalism,” can be dictated time-to-time by the regulatory authorities.

33 It is often popular to point out how the legal profession is behind the rest of culture in adopting trends in society, as if this is lamentable. In fact, the whole point of law in Western society is as an external point of accountability and judgment that is not subject to the whim of any human’s ever-changing will. Consider Samuel Rutherford’s, Lex, Rex, which is one of the earliest assertions that the law is king, rather than that the king is the law, a key precursor to the concept of a social contract and Liberal political philosophy. 34 Oregon State Bar Minimum Continuing Legal Education Rules and Regulations, amended March 1, 2021, Rule 1.6. states: Equity: Ensuring that all individuals and groups have fair access to the same opportunities and resources by identifying and eliminating barriers that face underserved and marginalized groups, by acknowledging and understanding ingrained and systemic structural biases in society, and by committing to address these disparities. Underserved and marginalized groups include, but are not limited to groups that are historically underrepresented based on factors of culture, disability, ethnicity, gender and gender identity or expression, geographic location, national origin, race, religion, sex, sexual orientation, veteran status, immigration status, and socioeconomic status 35 Id. Page 9 of 11

Colorado must lead by breaking the trend of States that either: (1) unquestioningly embrace the equity, diversity, and inclusion agenda’s unfortunate commitment to results over process, regardless of the impact and affect this will have on the long-term integrity and independence of legal professionals to be diverse, inclusive, and equitable; or, (2) completely ignore the real problems for equal access to the law, equality under the law, and the resulting undermining of public confidence. The inclusion of specific definitions related to “bias”, the clarification of meaning for “equity”, the limitation of the EDI rule to the specific context of supporting attorneys in promoting equal access, equality before the law, and the integrity of the profession (rather than elimination of subjective bias or attempts to achieve specific results), the removal of preferences for specific groups based on historical representation, and the inclusion of advocacy of equality for all, are each essential.

Conclusion Lawyers are constantly working through the existence of a variety of beliefs, biases, cultural backgrounds, personal histories, and other characteristics of their own, their clients, opposing parties, and governmental representatives. Lawyers use their skills and ability, both as a legal advocate36 and advisor,37 to assist legitimate client interests.

In addition, Colo. R.P.C. 2.1 specifically contemplates that lawyers refer to moral, economic, social, and political factors to advise their clients. Lawyers gain experience and insight regarding moral, cultural, social, and political realities to assist and advise clients. Partly through this process and the legal education, lawyers seek to become professional, to be good at their ability to analyze, evaluate, and apply, not simply the law or regulations, but the relational context of their clients, opposing parties, and relevant authorities, the nature and issues within disputes and negotiations, means and methodologies for advocacy and compromise, and similar issues.

The legal system, including foundationally the system by which lawyers are admitted and regulated, must allow lawyers to continue to authentically do these things. It must always allow for the articulation and dispute of the substantive law, especially when opposed to the existing cultural and political climate as embodied in the substantive law. The alternative would be catastrophic.

Respectfully Submitted, Douglas R. Griess, 34829 [email protected]

Co-Signors: Kip Anderson, 19671 Stanley J. Gradisar, 28042 Phil C. Pearson, 19922John T. J. Aaron Atkinson, 34564 James C. Hackstaff, 13262 Snow, 34957 Preston Branaugh, 29376 Bryan Gwinn, 41414 Mark "Hawk" Thomas, 38996 Roger T. Castle, 7621 Nicolle Martin, 28737 Steve Thompson, 28861 Bradley K. Benson, 26329 Rebecca Messall, 16567 David Walker, 36551

36 Colo. R.P.C. 3.1. 37 Colo. R.P.C. 2.1. Page 10 of 11

Page 11 of 11

From: Ann Gushurst To: stevens, cheryl Subject: Re: Rule 250.2. CLE Requirements to include training on equity, diversity and inclusivity Date: Monday, March 29, 2021 2:58:46 PM

Dear Ms. Stevens,

I am writing to voice support for the proposed rule change.

There can be no justice until we treat all people equally – without regard to race, gender, ethnicity, sexuality, etc. I’ve had the opportunity, in representing a client of color over the last 7 years on a pro bono case, to see up close and personal how implicit bias can work against an individual. It’s so very subtle. The suggestion that maybe someone is violent. Or sexist. Or drinks too much… which would not ordinarily be entertained in a high conflict divorce without some additional proof, but somehow in this case always was. The people involved would never self- identify as racist, but I’m very confident that they would never have acted the same way if my client had been white. And certainly, after the number of unfounded claims that were thoroughly investigated, they might start wondering about the continuous accusations… but they never did.

It took time to see this, and it took time to realize what was going on, but the damage of being a part of a group who is instantly and unfairly judged, cannot be undone because most of the time it cannot even be seen.

We ALL need to do better; requiring this type of education is one small step along that path.

Best,

Ann Gushurst

Ann Gushurst, Senior Counsel Pronouns she, her, hers Griffiths Law PC 10375 Park Meadows Blvd., Suite 520 Lone Tree, CO 80124 Phone: 303-858-8090 Fax: 303-858-8181 The information transmitted is intended only for the person(s) or entity to which it is addressed and may contain confidential and/or legally privileged material. Delivery of this message to any person other than the intended recipient(s) is not intended in any way to waive privilege or confidentiality. Any review, retransmission, dissemination or other use of, or taking of any action in reliance upon, this information by entities other than the intended recipient is prohibited. If you receive this in error, please contact the sender and delete the material from any computer.

From: GLENN W HAGEN To: stevens, cheryl Subject: Proposed EDI mandate Date: Friday, March 26, 2021 11:43:04 AM

A sickness in the Bar, starting at the top, with a recognition that BLM and socially depraved (including transgender) are engaged in thought-control of the Colorado Supreme Court, with a desire to impose the same as part of the education of what used to be an honorable profession.. Pathetic. From: carol haller To: stevens, cheryl Subject: Proposed rule change to Colorado Rules of Procedure 250.1 and others Date: Monday, March 29, 2021 8:36:15 AM

Dear Ms. Stevens, I write in support of the Rule changes currently under consideration by the Supreme Court. The rule change is designed to heighten awareness of the variety of people accessing the legal system and to better serve people of all kinds. In my long career as an attorney and judge, I have observed first hand the variety of people needing legal assistance and the barriers to full service to some populations. Educating attorneys to understand how barriers impact the variety of people in our community can be a first step toward better access for all people. I think of this rule change as a baby step toward better service and access. The legal profession lags behind other professions in diversity. It is incumbent upon us all to be better educated in the face of this lack of diversity in our ranks. I hold no illusion that two hours of legal education every three years will change hearts and minds. However, it is a start and it may cause some in our profession to examine their practices and make a small change to be more inclusive. Additionally, it says to the public we know we can do better to serve you. Thank you for the opportunity to comment. Carol M Haller 15032 From: hernandez, melina To: stevens, cheryl Subject: Notice of Support of DEI CLE Rule Change Date: Monday, March 29, 2021 3:28:53 PM

Good Afternoon,

I would like to note my support of this rule change. It is the easiest way to make sure we are educating those who can affect the most change, i.e., those in power. Until now, we have placed most of the burden of implementing DEI efforts on the one or two firm or organization attorneys who present as diverse, which makes those folks work even harder and externalizes the problem.

Thank you for your leadership on this. I’ll leave you with a little joke:

Melina Hernandez

Melina Hernandez| Judge Arapahoe County Court |7325 South Potomac Street|Centennial, Colorado

From: Andrew Hero To: stevens, cheryl Subject: CLE rules Date: Tuesday, March 23, 2021 2:39:38 PM

I am a Colorado licensed attorney, but now retired. I worked also in Texas, which had a CLE exemption for attorneys, like me, 70 and older. Then they changed it, to require us “old people” to do CLE again, or to elect formally to not practice law.

I chose the latter, which puts a severe chill on volunteer work, such as my homeowners association and a chamber music organization group that I helped found about 16 years ago. We now have to rely on outside counsel on even easy legal questions.

If Colorado has this “emeritus” exemption, please retain it, as we older people like contributing our time and advice to worthy organizations.

By the way, I complained to the Texas State Bar, and while sympathetic, they did nothing to reinstate the old exemption

Thank you.

Andrew Hero

Sent from my iPad From: Chance Hill To: stevens, cheryl Subject: Comment Regarding Proposed CLE Change in Requirement Date: Saturday, March 27, 2021 11:40:50 AM

Chief Justice Boatright:

I am writing to express my strong opposition to the amendment that would convert two of the required seven ethics CLE credits to courses on “equity, diversity, and inclusivity.”

I oppose the idea that I or any other attorney must attend ideology re-education training in order to maintain a law license in the state of Colorado, and I respectfully request that you and the associate Justices reject this change.

This proposal may have traction in places like Denver and Boulder, but it will cause a backlash in several other regions of the state.

Please do not make this needless change.

Respectfully,

Chance Hill

From: Kathy Hogan To: stevens, cheryl Subject: Rules committee - Rule 250.2 re CLE requirements Date: Monday, March 29, 2021 7:29:36 AM

Dear Committee members

I have carefully reviewed the proposed rule change. I agree with the concept and agree a requirement should be added. I would recommend approval of the proposed change. Having read some of the comments from Washington, where a similar proposal was considered, I would favor a requirement that designates the subject area of the existing CLE hours instead of adding to the total required. I believe a balance needs to be considered between acknowledging the need for the training, and also acknowledging that not all lawyers have the luxury of easily affording the cost of CLE credits. I also strongly believe that the profession needs to start somewhere with serious consideration of diversity and inclusivity issues. Therefore the possibility of justifiable concern that this is not “enough” should not detract from approving this measure as an initial effort.

Kathy Hogan Hogan Omidi, PC 3773 Cherry Creek North Dr, #950 Denver, CO 80209 303 691 9600 [email protected]

From: Kent Holsinger To: stevens, cheryl Subject: Rule 250.2 Date: Thursday, March 25, 2021 4:58:53 PM

Cheryl,

Wanted to reach out and voice my opposition to changes to Rule 250.2. Thank you,

Kent

Kent Holsinger Holsinger Law, LLC lands, wildlife and water law www.holsingerlaw.com 1800 Glenarm Place, Suite 500 | Denver, Colorado 80202 O: (303) 722-2828 | D: (720) 330-8243 | F: (303) 496-1025 E: [email protected] | Vcard

*People’s Choice: Best Water Lawyer in Colorado, Law Week, 2020 *Denver Business Journal Who's Who in Energy, 2018-2019 *5280 Top Lawyers in Agricultural and Rural Law, 2016-2021 *Denver Business Journal and Colorado Farm Bureau Who's Who in Agriculture, 2019 *World Speed Record in Aviation: Leadville, Colo. to Death Valley, Calif., 2019

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From: Michael Howard To: stevens, cheryl Subject: Oppose new CLE Rule Changes Date: Friday, March 26, 2021 11:21:22 AM Attachments: image001.png

May it please the court,

I write today in opposition of the proposed CLE rule changes. Though the rule changes attempt to tackle issues within the greater community or issues perceived in the legal profession, I believe that the requirement of legal ethics should not be reduced. As stated in the Preamble of the Rules of Professional Conduct (RPC), the legal profession is largely self-governing. The trust bestowed upon our profession for self-regulation is the understanding that we hold ourselves to a higher ethical level then the common community. In doing so, our CLE requirements reinforce our pursuit of a fair, just and ethical profession. The EDI requirement reduces the ethical requirements to maintain our bar licenses. Other Attorneys may welcome less ethical training. I however, believe we should maintain our current requirements. The main issue I encounter within the community at large is the continued perception that our industry is comprised of “sharks” and our actions can be unethical. I believe diverting our CLE requirements away from the already minimal ethical requirement broadcast the wrong signal to the community that ethics is not important. As stated in the RPC, “The profession has a responsibility to assure that its regulations are conceived in the public interest and not in furtherance of parochial or self-interested concerns of the bar.” I believe maintaining the ethics requirement as-is is in the public’s best interest. I believe Equity, Diversity, and Inclusivity are worthy goals for our society and profession. However, I do not believe the public’s best interest would be served if we should substitute EDI in place of ethical training. Therefore, I respectfully oppose the CLE rule changes.

I write today for myself and not as a representative of my firm.

Michael Howard | Attorney

1999 Broadway, Ste. 910 | Denver, CO 80202 Cell: (720) 939-2497 | Main Line: (303) 652-5040

From: Denise E. Jackson To: stevens, cheryl Subject: EDI Date: Wednesday, March 24, 2021 3:37:34 PM

Ms. Stevens,

Please convey my opposition to any required EDI training. Please Colorado Supreme Court, don't become the WOKE Police. We are all intelligent, caring, professionals, and this is the worst idea I've heard lately.

Best,

Denise E. Jackson

From: Heather Jackson To: stevens, cheryl Subject: Written Comments RE Rules 250.1, 250.2, 250.6, 250.9 and 250.10 Date: Friday, February 19, 2021 3:11:23 PM Attachments: image003.png image013.png image014.png image018.png

Over the course of the last year, we watched the country experience an awakening about how the criminal justice system treats minorities and disenfranchised folks differently in our society. The commentary on social media revealed the best and worst of America. Unfortunately, some of the hateful, bigoted speech came from members of the bar (see David Traywick and others). While some of the members of the bar who engaged in this hurtful commentary were punished, the bell could not be unrung. We must also be aware of those in the profession who would not dare to say outrageous and bigoted things on the internet, but who nevertheless carry bias, whether knowingly or not, that inhibits their ability to be objective in advocacy or in rulings.

We cannot effectively serve a society that does not trust the legal system to be fair. We cannot achieve equity in the justice system without unwavering commitment to call out, mitigate, and eliminate bias.

One of the most transformative classes I took in law school was Poverty & Low Wage Work with Professor Nantiya Ruan: it forced me to question long-held beliefs about the underlying causes of economic disparity in our country and ultimately, it changed me as a person and made me a better attorney. The point of this anecdote is this: we cannot transform hearts, minds, and the profession without education. Making annual training in the recognition, mitigation and elimination of bias, equal access to justice, and service of diverse populations mandatory will make us and the profession as a whole better.

Heather Jackson Colorado Injury Law Center A Private Law Firm Dedicated to Client-Centered Advocacy

Email: [email protected] Phone: 719.434.2550 | Fax: 719.888.2550

102 S Tejon St., Ste. 1100 Colorado Springs, CO 80903

and Of Counsel for Rosenbaum & Wootton, PC NOW AT 102 S Tejon St., Ste. 1100 Colorado Springs, CO 80903

www.coloradoinjurylawcenter.com

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From: Ruchi Kapoor To: stevens, cheryl Subject: Comment in Support of new DEI CLE Requirement Date: Monday, March 22, 2021 12:10:49 PM

Hi Cheryl,

My name is Ruchi Kapoor, and I'm the first vice president for the Denver Bar Association. I am proud to be supporting the equity diversity and inclusivity rule change for Continuing Legal Education in Colorado because a growing number of states have already recognized the need for training our attorneys to be knowledgeable on EDI and cultural competence issues.

This is the way to put into action the anti-racist stance the Colorado Judicial Department and bar community have taken. It is notable that these organizations have pledged to make our profession more equitable, for our judiciary to reflect all parts of our society, and to actively address issues of systematic racism and discrimination. As an attorney of color, I have too often experienced some of the consequences of being called "Mr. Kapoor" or being otherwise culturally misidentified in front of my clients.

By embracing EDI education our Supreme Court and our profession can send a message to our colleagues who experience racism, sexism, and other forms of bias: We hear you, we know it happens, and as a profession we will not tolerate it. It ensures the public knows that our profession is serious about effecting lasting change and recognizes the dignity of underrepresented communities.

Regards,

Ruchi Kapoor, Esq. Managing Attorney | Kapoor Law + Policy [email protected] call or text 720.515.2620 www.kapoorlp.com

This email communication may contain CONFIDENTIAL INFORMATION WHICH ALSO MAY BE LEGALLY PRIVILEGED and is intended only for the use of the intended recipients identified above. If you are not the intended recipient of this communication, you are hereby notified that any unauthorized review, use, dissemination, distribution, downloading, or copying of this communication is strictly prohibited. If you are not the intended recipient and have received this communication in error, please immediately notify us by reply email, delete the communication and destroy all copies. I support the rule change establishing an equity, diversity, and inclusivity CLE requirement. As a profession and a nation we have a long ways to go in addressing the legacy of slavery, Jim Crow, and discrimination against non-white people. Our profession, indeed the law itself, has historically perpetuated this inequity, discrimination, and oppression. I hope that this rule change is a very small step in a different direction.

David Kaufman From: Dan Kramer To: stevens, cheryl Subject: Comments on Proposed Rule Changes Regarding Continuing Legal Education Date: Wednesday, January 27, 2021 1:20:30 PM

Dear Ms. Stevens,

I would just like to thank the Court for moving to require EDI education as part of our professional responsibility standards. This is timely and appropriate, and I support the adoption of this change.

Respectfully, Dan Kramer

Daniel E. Kramer Town Attorney Town of Estes Park (970) 577-4761 From: kramer, gary To: stevens, cheryl Subject: Rule 250.2. CLE Requirements Date: Monday, March 29, 2021 8:13:36 AM Attachments: image001.png

Cheryl, Please accept this comment regarding the proposed rule change.

I support the rule change. I would make only one suggestion to the proposed language: Section 1 states, “Every registered lawyer and every judge must complete 45 credit hours of continuing legal education during each applicable CLE compliance period as provided in these rules.” In contrast, section 3, which explains EDI, states that the courses "should educate lawyers" regarding the specified topics. For consistency, I suggest that this sentence be amended to state "should educated lawyers and judges ...."

Other than that, the proposed change has my full support.

Feel free to contact me if you have any questions.

Best, Gary Kramer

Gary M. Kramer District Court Judge 18th Judicial District Elbert County Combined Courts 751 Ute Ave., PO Box 232 Kiowa, CO 80117 303-621-3229

From: Kukreja, Rajesh K. To: stevens, cheryl Subject: comment of proposed rule change to rule 250.2 Date: Monday, March 29, 2021 11:53:16 AM Attachments: image001.png

I am in favor of the proposed rule change but feel that the hours requirement regarding equity, diversity, and inclusion issues should be higher than what is proposed. I believe that these issues, and the issue of bias, are ever more present in our day to day lives, both in working with others and with representation of our clients. It feels like these issues are increasingly relevant in every case, from how individuals of different backgrounds negotiate contracts with one another to how a judge perceives individuals of non-white or non-heterosexual backgrounds. To that end, I believe it should be required that this proposed rule change should also require CLEs in which attorneys and judges are discussing these topics, instead of attorneys and judges learning about these issues in separate legal education forums. Having a more cohesive understanding within a courtroom about how these issues, including bias, may play out in a case may be very helpful in evolving the legal profession on these issues.

Rajesh K. Kukreja - Member

633 Seventeenth Street, Suite 3000, Denver, Colorado 80202 Direct: 303.299.8188 [email protected] | www.shermanhoward.com

CONFIDENTIALITY NOTICE

From: Joi Kush To: stevens, cheryl Subject: Comment for the EDI CLE Rule Change Date: Monday, March 29, 2021 12:11:18 PM

Dear Ms. Stevens—

Equity. Diversity. Inclusivity. These three concepts are essential to the fair and impartial administration of justice, but have only recently gained the attention of law firms and bar associations. Unfortunately, it took an unprecedented rise in hate crimes and vitriol to spark action within the legal profession.

Racism. Sexism. Xenophobia. Homophobia. Transphobia. All forms of discrimination are unacceptable and contrary to our attorney oath. We cannot tolerate any form of prejudice within our profession.

To challenge and change these biases, we must actively listen and learn. Education is the first step toward tackling these issues.

By embracing EDI education, we can send a message to our colleagues who experience racism, sexism, and other forms of bias: We hear you, we know it happens, and as a profession, we will not tolerate it. It shows the public that our profession is serious about effecting lasting change and recognizes the dignity of underrepresented communities.

On April 6th, 2021, the Colorado Supreme Court will vote on whether to modify the current ethics requirement to include a 2-hour CLE on EDI. I strongly support this important advancement in attorney education and ask this Court to embrace the EDI CLE rule.

Thank you for your time.

Best Wishes,

Joi G. Kush Attorney at Law

JOHNSON KUSH P.C. 24 S. Weber Street, Suite 300 Colorado Springs, CO 80903 P: 719-471-4034 F: 719-471-1663

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From: Suzanne Leff To: stevens, cheryl Subject: Support for the New DEI CLE Requirement Date: Monday, March 29, 2021 10:24:49 AM Attachments: image001.png

Ms. Steven,

My name is Suzanne Leff. I am the immediate past Chair of the Real Estate Section of the Colorado Bar Association and a member of the Colorado Women’s Bar Association and the Denver Bar Association. I am proud to support the equity, diversity, and inclusivity rule change for Continuing Legal Education in Colorado for several reasons, including, but by no means limited to, the following:

1. A growing number of states have already recognized the need for training our attorneys to be knowledgeable on EDI and cultural competence issues. 2. Engaging practitioners on EDI issues will move us forward as a profession for the communities we serve and help all attorneys foster better relationships with our staff, our clients, our colleagues, opposing counsel, and members of the public. 3. Issues of equity don’t resolve without the education and open discourse that a mandatory CLE requirement creates – not as a short-term intervention, but as a consistent part of attorney education enhancing cultural competency and empathy in working with people from every background. 4. Consistent and transparent EDI education works by helping everyone recognize the unconscious filters and influence that reflects our socialization – and this data helps reverse the ill effects of implicit bias by exposing it and prompting us to act on it. 5. EDI education focuses on ensuring equal opportunity and truly including people of every background in our profession. 6. This is the way to put action to the anti-racist stance the Colorado Judicial Department and bar community have taken in pledging to make our profession more equitable, for our judiciary to reflect all parts of our society, and to actively address issues of systematic racism and discrimination. 7. By embracing EDI education our Supreme Court and our profession can send a message to our colleagues who experience racism, sexism, and other forms of bias: We hear you, we know it happens, and as a profession we will not tolerate it. It ensures the public knows that our profession is serious about effecting lasting change and recognizes the dignity of underrepresented communities.

When I ended my term as Chair of the CBA Real Estate Section, I issued the call to action copied at the bottom of this email. That call to action built on CLE courses offered at the 2019 Real Estate Symposium, where a diverse group of speakers presented on topics that revealed the breadth and depth of systemic racism within our practice area. Despite all of the events over the past two years, the needle has barely moved on these issues—though I commend the Real Estate Section for working on these issues through CLE offerings, volunteer opportunities, legislative efforts, and other actions. A DEI CLE requirement could help further progress and is one important step in the right direction.

Thank you for considering my comments. I hope the DEI CLE rule receives approval.

Suzanne Leff

+++++ [Departing Comments to CBA Real Estate Section Council, June 30, 2020]

CBA Real Estate Section Leaders,

Thank you again for the opportunity to serve the CBA Real Estate Section this past year as Chair. I have felt honored to participate in the work of Council with each of you over the past five years.

On this last day of my term, I want to reiterate some of my parting comments from our June meeting, while offering some additional resources. My motivation for this follow up came a few days after our June meeting in the form of guest commentary in the The Denver Post. Assistant U.S. Attorney Jason St. Julien shared some of his story of growing up and living as a black man in our country. I am fortunate to know Jason from the 2017 Colorado Bar Association Leadership Training (COBALT) class of which we were both members. But I did not have any knowledge of the experiences Jason described in his guest commentary until I read his piece. The injustices Jason has experienced are both unfathomable for me and inexcusable. Jason asked that I share his story far and wide with anyone who may hear it. You are all part of that audience, and I think you’ll find Jason’s message and “ask” compelling.

Now, more than any other time in most of our lifetimes, the world seems poised for change— change in how we work and live and change in the systems and institutions that benefit some while harming others. Lawyer-leaders like ourselves are uniquely positioned to use our legal, analytical, negotiating, and people skills to help with the education, difficult conversations, and policies and practices that will drive that change. This need for change is not new, but seeing and knowing that has not yet led to the action and change needed. It is time to both see and speak and act for change.

Nearly a year ago, Colorado Supreme Court Justice Monica Márquez and Karen Hester from the Colorado Center for Legal Inclusiveness spoke with us about personal challenges, systemic racism within real estate law specifically, and the lack of diversity amongst our ranks as lawyers. Their CLE materials from the July 2019 Symposium provide more detail about their personal experiences and offer data on the under-representation of blacks and people of color in our ranks at lawyers. Karen shared the Harvard University implicit bias test that offers insight into the lenses through which we operate. I recommend that everyone take that test if you have not already. Also, please consider Patty Powell’s more recent article, “The Link between Well-Being and Inclusion,” in the June 2020 issue of The Colorado Lawyer, which again highlights the disparate representation of blacks and other people of color within our profession.

Also at the 2019 Symposium, Judges Espinosa and Shamis told us about eviction statistics and the impact of orders for possession and other judgments on housing stability for pro se tenants. Judge Espinosa even went so far as to say that tenants should have a right to counsel in eviction proceedings. Matthew Desmond’s 2009 book, Evicted—recommended by Judge Espinosa—has generated much discussion at a national level on the topic of housing. The book is referenced in the “What Happens If You Can’t Pay Rent?” episode of Patriot Act with Hasan Minhaj and in this week’s episode of Last Week Tonight with John Oliver.

Those classes and discussions last July foreshadowed the present more than we may have realized. Some (or perhaps a lot) of that lack of foresight is due to privilege. Some of it is due to our inability to predict a global pandemic. In any event, Justice Márquez, Karen Hester, and Judges Espinosa and Shamis all help us “see” areas within our profession and practice areas that are ripe for action. The calls to action from Justice Márquez, Karen Hester, Judges Espinosa and Shamis, along with those from Jason St. Julien and Patty Powell, are the calls to action that I want to renew with all of you as Real Estate Section leaders.

As a Section, I want to encourage everyone to find a way to engage, support, and increase the diversity of our practice group and leadership. We have created some opportunities in our Section budget that help to prioritize these efforts at the Council level. With that first step taken, what’s next? The CBA has a plan. How can we, as a Section, work to implement it?

I challenge Council to continually consider how Council actions either support or work to overturn systemic racism. That’s a big topic, and perhaps it starts with dialogue and education. One avenue to consider is connecting with the Sam Cary Bar, the Colorado Hispanic Bar Association, and other organizations and talking about how we approach our policy discussions as a Council and even at the Legislative Policy Committee level within the CBA.

Finally, I ask each of you to either volunteer or find at least one attorney from your firm or professional circles to volunteer in support of the Access to Justice initiative to provide pro bono assistance to pro se tenants in eviction proceedings. Andy Toft has led this initiative all year, and the need now is greater than ever. I will volunteer, and I ask that you commit to do the same. Please contact Andy directly at [email protected] to help.

I appreciate all that you have given and continue to give to our profession, and I look forward to seeing and supporting what Council and our Real Estate Section achieves in the years ahead.

THANK YOU to each of you,

Suzanne

------Board Education. We’re now offering monthly Board trainings at 5 PM on the third Thursday of every month by Zoom. Space is limited. Contact Allison Grout at [email protected] to register and reserve your place. ------Click here for the latest commentary and opinions on the law affecting homeowners associations. Sign up for e-mail updates, or subscribe to our convenient RSS feed for automatic updates.

Suzanne M. Leff Attorney at Law [email protected] 8020 Shaffer Parkway, Suite 300 Littleton, CO 80127 Phone: 303.863.1870 ext 112 Mobile: 303.653.6334 Fax: 303.863.1872

NOTICE: This communication (including attachments) is covered by the Electronic Communication Privacy Act, U.S.C. Section 2510-2521, is confidential, and may contain privileged information. If you are not the intended recipient or if you believe you may have received this communication in error, please do not print, copy, retransmit, disseminate, or otherwise use this communication or any of the information contained herein. Also, please notify sender that you have received this communication in error and delete the copy you received. Thank you.

THOMAS M. LIST Licensed in Colorado, North Dakota and Florida [email protected] (303) 292-7921

March 10, 2021

VIA EMAIL ONLY Cheryl Stevens [email protected]

Re: Public Comment by Moye White LLP in Support of Proposed Equity, Diversity, and Inclusivity CLE Rule Change

Dear Ms. Stevens:

The law firm of Moye White LLP writes this letter as public comment in support of the proposed rule change requiring attorneys licensed in the State of Colorado to complete two hours of professional responsibility CLE courses in the area of equity, diversity, and inclusivity (“EDI”). It is the opinion of this firm that the proposed rule change is necessary and appropriate for the Colorado bar.

Moye White believes the proposed rule change is just such an action. For the following reasons, Moye White publicly supports this rule change:

• The composition of the Colorado bar is rapidly diversifying in many respects (e.g., in terms of race, ethnicity, gender/sexuality, etc.). This rule change recognizes that reality, and offers training to better ensure the respect and equal treatment of those diverse attorneys that have been historically underrepresented in the legal profession.

• This firm understands the need for EDI training, such as implicit bias training, to create a more professional working environment for attorneys and staff of all backgrounds. Support of this rule change is in line with Moye White’s Core Values.

• The proposed EDI requirements relate directly to the legal profession and in particular the professionalism of the bar. At a time when businesses across the country— including many of our clients—are preaching the value of EDI, our demonstrated commitment to working towards a more inclusive profession will allow us to be better advocates, counselors, and representatives.

We look forward to the April 6, 2021 hearing on this rule change, and we are hopeful that its implementation will create a more compassionate, empathetic, and effective legal profession.

Moye White LLP Attorneys at Law 16 Market Square, 6th Floor 1400 16th Street Denver CO 80202-1486 tel 303 292 2900 fax 303 292 4510 www.moyewhite.com

4845-7103-2288.1

Cheryl Stevens March 10, 2021 Page 2

Very truly yours,

Moye White LLP

Thomas M. List, Esq.

4845-7103-2288.1 From: Loewenstein, Avi B. To: stevens, cheryl Subject: Proposed Rule Change to Rule 250 Date: Friday, March 26, 2021 3:10:27 PM

Cheryl,

I’m writing to offer my comment on the proposal to convert two of the required seven ethics CLE credits to courses on equity, diversity, and inclusivity. I feel such a move would not be in the best interests of the Colorado bar.

Ethics is so vitally important for our profession, and this past year has unfortunately seen unethical lawyers once again become the focus of national attention. These unethical lawyers come from a variety of backgrounds and political stripes. Lawyers such as Gordon Caplan, Michael Avenatti and Michael Cohen disgrace the legal profession. If there were ever a moment for the bar to do what it can to ensure its members uphold the highest standards of ethics, it is now. For the bar to reduce the required ethics courses would send a terrible message to our members and the public.

Please don’t hesitate to reach out with any questions or to discuss. Thank you for your consideration.

Thanks, Avi

Avi Loewenstein Shareholder Brownstein Hyatt Farber Schreck, LLP 410 Seventeenth Street, Suite 2200 Denver, Co 80202 303.223.1136 tel 720.335.3656 cell [email protected]

STATEMENT OF CONFIDENTIALITY & DISCLAIMER: The information contained in this email message is attorney privileged and confidential, intended only for the use of the individual or entity named above. If the reader of this message is not the intended recipient, you are hereby notified that any dissemination, distribution or copy of this email is strictly prohibited. If you have received this email in error, please notify us immediately by calling (303) 223-1300 and delete the message. Thank you. From: Mark J Loewenstein To: stevens, cheryl Subject: Proposed EDI mandate Date: Sunday, March 28, 2021 6:48:09 PM

I wonder whether EDI education would enhance an attorney’s competence in representing that attorney’s clients. That test, I suppose, underpins the whole CLE enterprise and if EDI training is of a piece with that, then it makes perfect sense. If not, EDI training should not be required.

Mark J Loewenstein Monfort Professor of Commercial Law and Associate Dean for Curricular Affairs University of Colorado Law School 2450 Kittredge Loop Rd, 401 UCB Boulder, CO 80309-0401 T: 303-492-7102 F: 303-492-1200

From: Carl Luppens To: stevens, cheryl Subject: Proposed EDI mandate Date: Saturday, March 27, 2021 4:09:18 PM

This is a blatant, misguided political stunt. It should not be a requirement for maintaining professional competence. It does not benefit clients who should be the beneficiary of continuing education requirements. Have you experienced any of the corrupt “training” from so called “diversity consultants”? Completely worthless and just a financial shake down and scam. It is a racket.

I will not comply.

Carl Luppens From: Mancero, Alex To: stevens, cheryl Subject: Comments to Proposed Rule Change to Rule 250.2 Date: Monday, March 29, 2021 10:30:51 AM Attachments: image001.png

Dear Ms. Stevens:

I am writing to comment on the proposed rule change to Rule 250.2. Please see my comment below.

I fully support a CLE requirement in the area of equity, diversity, and inclusivity. However, the proposed rule change does not go far enough to address the concerns that the rule change intends to address. Because the CLE compliance period spans multiple years, having a two-credit requirement is not enough. There should be at least three credits required. The CLEs approved to satisfy the EDI requirement should be limited to one credit at a time and limited to one credit per year (provided that any additional credits as desired may be earned past this amount, but not counted towards the total requirement). Additionally, these CLEs should have an in-person and/or an interactive component to ensure that attorneys are actively listening and participating. I am also concerned that by taking away two credits from the area of legal ethics and legal professionalism, these issues will receive less attention than warranted. To resolve this concern, I would like to see a separate category for the area of equity, diversity, and inclusivity. As a result of all my concerns above, I propose that the CLE requirements be changed as follows: 45 total CLE credits consisting of 32 general credits, 7 ethics credits, and 3 EDI credits.

Thank you for accepting and considering my comments.

Best,

Alex

Alex Mancero - Associate

633 Seventeenth Street, Suite 3000, Denver, Colorado 80202 Direct: 303.299.8321 | Mobile: 720.450.2842 | Fax: 303.298.0940 [email protected] | www.shermanhoward.com

CONFIDENTIALITY NOTICE

From: mares, cynthia To: stevens, cheryl Subject: Requirement of at least two credit hours in the area of equity, diversity and inclusivity Date: Monday, March 29, 2021 10:39:27 AM Attachments: image001.png

My comment:

There seems to be hesitancy in requiring CLEs in equity, diversity and inclusivity but, as I myself spent more time lately reading on this topic, it is enlightening to learn about the history of this issue and there is a LOT for all of us to learn. One required reading should be Caste. So two hours is nothing and should be included. There are many free CLE opportunities on this issue so I don’t think cost is an issue.

Cynthia D. Mares District Court Judge 18th Judicial District Division 11, Arapahoe County

From: Laura M. Martinez To: stevens, cheryl Subject: Colorado’s Proposed Equity, Diversity, & Inclusion CLE Rule Change Date: Friday, March 26, 2021 4:28:59 PM

I’m writing in support of the proposed rule change. This is a critical step we can take to work toward addressing the fact that the law is one of the least diverse professions in the United States.

Laura Martinez Partner

Messner Reeves LLP 6465 Greenwood Plaza Blvd. | Suite 650 Greenwood Village, CO 80111 303.605.1569 direct | 303.623.1800 main 303.623.0552 fax [email protected] messner.com

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Comments on Colorado Lawyer, December 2020, issue, page 4, Mandatory CLE Requirement

Although I am elder exempt from CLE I still feel obliged to comment on the recent article-proposal. The article promotes a mandatory CLE requirement for racial justice, equity, diversity and inclusion, with the catchy acronyms of “REDI” or a shortened “EDI.” The number of hours are not specified. The purposes of CLE, according to the website, are “…to promote competence and professionalism and to remain current on the law in our rapidly changing society.” The proposal doesn’t promote competence or touch upon current law. That only leaves professionalism which is defined, at great length, in the Rules of Professional Conduct. Those are the duties and responsibilities which are generally referred to as ethics. We already have mandatory CLE for ethics and there is no pretense in the proposal that it relates to the rules. Indeed, a headline in the proposal is “Join the EDI Movement,” a slogan reserved for political campaigns or social protest. If EDI training, which may be commonly referred to as cultural reeducation or social engineering, is deemed suitable for CLE, the Board of Continuing Legal Education should be prepared for pleas from various other groups that deem themselves underappreciated and want the pulpit.

The proposal envisions training us in “…topics related to gender, race, national origin, disability, sexual orientation, as well as anti-racism and elimination of bias.” Implicit bias (perhaps a perjorative term for simple intuition), is mentioned in the article. We will be taught that hidden and unconscious biases cause us to act in discriminatory ways toward others, even though we do not consciously intend to do so. We will certainly hear about critical race theory: that the law and legal institutions are racist and that race is a construct of white people to keep everyone else broke and powerless. I don’t accept these theories.

EDI training and the theories propelling it are highly controversial. Almost every lawyer would agree that the ethical responsibilities of the Rules of Professional Conduct are properly stated and should be followed, but I’ll wager that many lawyers would think EDI is a load of bricks.

Should the theories be sound there is no evidence that mandatory EDI training is effective. Such training will insult and anger a great many who will resent the compulsion and don’t accept the theories. This would be an uncommon reaction to a CLE course and would do no credit to the board.

EDI training is widely available to believers in other venues. Diversity and division are first cousins. We should not parse each other into the oppressors and the oppressed. The political parties and the media do that well enough. We are the fortunate few who practice a great and honorable profession. Let us continue to treat each other with respect, celebrate our shared bond and common humanity, and resist all efforts to rent that asunder. I urge the Board of Continuing Legal Education to give this proposal a prompt burial.

Newman McAllister 121 S. Tejon St., Suite 1107 Colorado Springs, Colorado 719-473-4892 December 14, 2020

Comments on Proposed CLE Changes to Regulation 103.1

I am also submitting the letter I wrote in December that was published in the February 2021, issue of the Colorado Lawyer. That was prior to promulgation of the specific changes but it still expresses my views. I will refer to the proposed changes as “PC.”

One is first struck at how poorly written the PC are. As lawyers we are stewards of the English language. In all of our work, written and oral, we should strive to be clear and concise. The PC are wordy, imprecise repetitive and grammatically deficient, as if designed by a committee without proper editing.

We may start with definitions. The words culture, ethnicity, race and national origin are much the same and have meanings that overlap. Systemic structural bias is a controversial term and many people don’t believe it exists. Some of the terms mystify. What are immigration status and veteran status? These are nouns modifying nouns. My ancestors immigrated here from England but I don’t think you are referring to me. A person is either a veteran or not. The addition of status is unnecessary and meaningless. What do socioeconomic status and geographic status mean and why are they mentioned? You also use equity, diversity and inclusivity, without definition. Equity could mean achieving your goals because of your race, color or gender. A better term would be equality where everyone has the same opportunity to achieve his or her dreams. I define diversity as the uniqueness of every person but I know you aren’t using it in that manner. The PC need a definition section. Careful definition will aid in editing the substance.

The PC seem to be addressed not to lawyers in their practice and profession, but to lawyers as citizens and members of society. I don’t understand why those relationships should be the subject of a rule that governs our professional conduct: lawyer to lawyer; lawyer to client; and lawyer to judge. The proposal states that we are to acknowledge and understand “…ingrained and systemic biases in society, and by committing to addressing these disparities.” The PC infringes upon a lawyer’s freedom of association and religion. The Roman Catholic Church and many Protestant denominations do not sanction same sex marriage and gender transition. But the PC require us to work to eliminate alleged barriers in society for this group.

Another aspect of the PC seems to be affirmative action, another controversial topic. For example, religion is mentioned in a category of those “historically unrepresented.” The sentence stops before defining what they are historically underrepresented in, because of their religion. Perhaps you mean they are underrepresented in the legal profession because of discrimination. To begin, how would I know the religion of another lawyer, judge or client? Religion is private. And if I did know, it wouldn’t matter and why is it important? If one percent of the population of the United States is Wiccan and only one tenth of one percent is represented in the legal profession, discrimination is one possibility but there are many others: ambition, education, desire and perseverance. It is fatuous to promote the idea that percentages in the population must exactly match percentages of the legal profession, and to require me to address that imbalance.

The PC are additionally deficient because of what I said in my letter to the Colorado Lawyer: not related to professionalism; controversial; ineffective and divisive.

If you are determined to have a rule of this nature please reedit it and confine it to my duties as a lawyer. You should submit it again to the bar for comment.

Thank you.

Newman McAllister Attorney at Law 121 S. Tejon St., Suite 1107 Colorado Springs, Colorado 719-473-4892 March 27, 2021

From: Ian McCargar To: stevens, cheryl Subject: Proposed changes to RCP 250.1; required CLE hours for diversity awareness Date: Monday, March 8, 2021 11:52:23 AM

Ms. Stevens, I am writing in support of the proposed change to RPC 250.1. Specifically, I support the addition of the proposed sub-sections (a) and (b) requiring diversity training as a component of ethics credits.

I am proud to be an attorney, but I also respect the need for changes when it comes to constraints on our culture. The profession has for far too long been a creature of our larger society, with the Keys to the Kingdom held by white males, oftentimes jealously. The time has come for our profession to acknowledge its history, and to forge new traditions. It starts with awareness. If awareness must be forced by rule changes such as this, I support it as necessary to the long-term improvement of our profession.

Please toss this comment in your stack of “pro” statements, and feel free to contact me if you wish.

Respectfully,

Ian D. McCargar Office of the Town Attorney Town of Windsor 301 Walnut Street | Windsor, CO 80550 Dir: 970-674-2492 | Off: 970-674-2400 | Fax: 970-674-2456

From: M McClure To: stevens, cheryl Subject: Proposed EDI CLE rule change Date: Thursday, March 25, 2021 6:48:50 PM

Hi!

I am writing in support of the proposed rule change to include diversity-focused CLEs in the 45 credit requirement.

Other states have similar requirements and Colorado should add itself to the list. Adding such a requirement would not be burdensome for attorneys. Plus, this requirement would greatly enhance an attorney's ability to practice law in a way that is inclusive for others in the profession and for our clients. Moreover, an EDI program would help us understand systemic racism in the legal system and provide some tools for dismantling white supremacy.

Melissa McClure From: Kevin McReynolds To: stevens, cheryl Subject: Proposed EDI CLE rule - hearing participation and comment Date: Tuesday, March 16, 2021 8:34:45 AM

Ms. Stevens:

I am reaching out to voice my strong support for the proposed EDI rule change. The proposed rule represents a small but vital step towards addressing issues such as racism, sexism, xenophobia, homophobia, and transphobia across our profession.

For me personally, this rule is important because Colorado attorneys face disparate treatment and we need to guarantee a minimum level of professional education on equity and inclusivity issues. I myself have witnessed such incidents and have had many friends, particularly women and attorneys of color, who have had judges and other attorneys simply presume they were criminal defendants, rather than attorneys, based on how they look. White attorneys are never treated this way.

The proposed EDI CLE rule will help because equity issues don’t resolve without the education and open discourse which a mandatory CLE requirement creates – not as a short-term intervention, but as a consistent part of attorney education enhancing participants’ cultural competency and empathy in working with people form every background. Consistent and transparent EDI education works by helping everyone recognize the unconscious filters and influence that reflects our socialization – and this data helps reverse the ill effects of implicit bias by exposing it and prompting us to act on it.

Like so many of my colleagues across the legal community, I strongly support this important advancement in attorney education and ask this Court to embrace the EDI CLE rule.

Please also add me to the list of people who would like to participate in the April hearing on this proposed rule.

Thank you.

Kevin E. McReynolds (he/him) Immediate Past President Denver Bar Association From: Bill Meyer To: stevens, cheryl Subject: Mandatory CLE-Rule change requiring diversity training Date: Sunday, March 28, 2021 4:53:29 PM

Although I am not required to have continuing education credits, I am in favor of the rule change. I would enroll in some of the offered courses. The population is getting more diverse and hopefully that will be equally reflected on the bench and in legal profession. Education about our own deficiencies and how to address explicit and implicit bias can only improve the legal system. Simply taking one or many of the Harvard implicit bias surveys can reveal the necessity of continuing education on this topic. I would be willing to bet that if a person was opposed to the change or on the fence, taking those tests would sway their position. A good idea, overdue. Thank you wgm

William G. Meyer Managing Arbiter Judicial Arbiter Group, Inc. 1601 Blake Street, Suite 400 Denver, CO 80202 Phone 303-572-1919 Fax 303-571-1115 [email protected]

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14143 Denver West Parkway, Suite 100 Golden, CO 80401 (720) 370-3088 March 25, 2021

Clerk of the Colorado Supreme Court VIA EMAIL Cheryl Stevens [email protected] 2 E. 14th Avenue Denver, Colorado 80203

Re: Proposed CLE Rule Change to Require Professional Responsibility Education including Equity, Diversity, and Inclusivity

Dear Ms. Stevens:

We write in support of the proposal to require Continuing Legal Education (CLE) in Equity, Diversity, and Inclusivity (EDI) and to expand the Ethics requirement to encompass education in Legal Professionalism.

Equity, Diversity, and Inclusivity CLE. Our profession and our legal/judicial system are grounded in principles of equal justice, access to justice, due process, and the rule of law. Consistent with these principles, lawyers must be able to confront bias in legal proceedings and within the profession, and to provide effective legal representation to clients whose life experiences differ from the lawyers’ own. Lawyers and trial judges must be prepared to effectively respond in real-time when issues of bias arise during legal proceedings or other professional interactions. Effective representation requires lawyers to understand the societal and cultural factors impacting their clients’ interactions with the legal system, including the biases, barriers, and burdens that their clients may face.

To meet the needs of our diverse society and clientele, lawyers should be educated in these matters in the same manner as they are continually educated in other matters of effective legal representation. CLE courses in EDI address a wide range of topics to educate lawyers on practical skills to address biases, barriers, and burdens encountered by our clients and within the profession. They promote cross-cultural communication, cultural competence, and cultural literacy. They prepare lawyers and judges to respond immediately and effectively when issues arise. Making these skills more widespread across our profession would enhance public trust in the profession and in the legal/judicial system.

Court decisions and news events continually highlight the need for lawyers to have these skills. Our justice system has long suffered from racial injustice, both in its failure to redress violence and other harm committed against people of color and in its disparate treatment of people of color. It is always possible to point to a recent event as illustration. (Indeed, the California Bar adopted the nation’s first EDI-related CLE requirement in 1992 after high-profile court events in Los Angeles triggered civil unrest and a period of racial reckoning.) Our courts and our profession also experience the racism, sexism, xenophobia, homophobia, transphobia, and other biases that exist within our broader society. As the deliverers of justice, our courts and our profession have a special duty to confront these problems.

14143 Denver West Parkway, Suite 100 | Golden, CO 80401 (720) 876-2328 | moorewilliams.com

March 25, 2021 Page 2

Legal Professionalism. We also support the expansion of the ethics CLE credit to include education in the values of legal professionalism, including civility, integrity, honesty, candor, fairness, trust, respect, dignity, and courtesy. Behavior consistent with these values instills public trust and confidence that legal disputes will be resolved based on the rule of law, i.e., by a fair and reasoned application of the law to the facts on the merits.

Education on legal professionalism is needed to address a decline in professionalism. It appears increasingly common for attorneys to engage in bullying or belittling communications; to deny reasonable professional courtesies; and to reflexively take aggressively adversarial and mercenary postures. Such lack of professionalism detracts from public confidence in the legal/judicial system by exacerbating conflict, impeding settlement or resolution, increasing the cost of justice, and suggesting that hostile aggressiveness plays a role in case outcomes. It also contributes to a sense of intimidation and unwelcomeness within the legal profession, which tends to contribute to the disparate attrition of women and people of color from law firms and the legal profession. These unfortunate trends demonstrate the need to re-teach lawyers about the professional expectation that they act with civility, integrity, honesty, candor, fairness, trust, respect, dignity, and courtesy.

***

Continuing legal education is an important means for ensuring that Colorado attorneys have the knowledge, competence, and professionalism to effectively serve their clients. Litigants should be able to trust that they will be treated with respect and understanding when they interact with the legal system. All attorneys should be able to confront bias and address the burdens and barriers that their clients face. Mandating education in EDI and legal professionalism ensures that all lawyers—even those who do not yet understand the importance of these topics to their legal practices—benefit from this education.

In sum, we urge the Colorado Supreme Court to adopt the changes proposed by the Continuing Legal and Judicial Education Committee.

Best regards,

Ruth M. Moore

Marie Williams

From: Morris, Meghan To: stevens, cheryl Subject: Proposed Change to Rules of Professional Responsibility Date: Friday, February 19, 2021 1:03:05 PM

Hi Ms. Stevens,

I am writing to support the proposed change to Rule 250.2 of the Colorado Rules of Professional Responsibility to require attorneys to obtain continuing legal education on the topics of diversity, equity, and inclusion.

Thanks,

Meghan Morris She | Her | Hers Appellate Division Colorado State Public Defender 1300 Broadway, Suite 300 Denver, CO 80203 Ph: 303-764-1400

From: Marie Moses To: stevens, cheryl Subject: Comment on Proposed Rule Change 250.2 Date: Sunday, March 28, 2021 8:54:13 AM Attachments: image001.png

I support the proposed rule change, but believe that it does not go far enough in ensuring that members of the legal profession and judiciary have sufficient DEI training.

First, let me begin by expressing my joy that the Supreme Court is considering including DEI credit hours as part of our professional education responsibilities. As someone that has been on the planning committee for many CLE programs, I have often been frustrated that anti-bias programs were not eligible for ethics credits. It is critical that lawyers and judges have the opportunity to get exposure to the importance of recognizing, mitigating and eliminating bias. Individuals that hold the belief that “I am not racist” or “I am not prejudiced” are well-meaning, but misguided. It is important to understand the ways in which we unknowingly perpetrate systemic bias. You don’t know what you don’t know—and the DEI credit requirement is a great start to trying to bridge that gap.

Second, I believe that the proposed rule does not go far enough in requiring DEI training. Since DEI training has become more widespread in the past two or three years, I have had the opportunity to engage in at least 20 hours of DEI training. I can honestly say that I learn something new and valuable with each DEI seminar that I attend. Indeed, I find the DEI trainings to provide me with more meaningful education than any other of my 45 hours of CLE credits. Most lawyers have no education in DEI topics other than what is available through CLE programming, so the work that they do in the CLE context is critical to making meaningful change. In my opinion, 2 credit hours every three years barely scratches the surface. It is my suggestion that the rule be changed to require at least 3 DEI credits per compliance period, although surely more is needed.

Sincerely,

Marie Moses

Marie Avery Moses She/Her/Hers Attorney (303) 296-9412 Ext. 109

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March 29, 2021 Re: Comment to the Proposed Amendments Regarding “Equity, Diversity, and Inclusivity” (Request to Testify) To the Honorable Justices of Colorado Supreme Court: Thank you for the opportunity to comment on the proposed changes to (1) the Colorado Rules of Procedure Regarding Attorney Discipline and Disability Proceedings, Colorado Attorneys’ Fund for Client Protection, and Mandatory Continuing Legal Education and Judicial Education; and (2) the Regulations Governing Mandatory Continuing Legal and Judicial Education for the State of Colorado, prior to the hearing on April 6, 2021. In addition to submitting this comment, I request the opportunity to testify in opposition to the proposed changes on April 6, 2021. As you know, the proposed changes to Rule 250.2 would require that of the seven “professional responsibility” credit hours that each registered lawyer and every judge must obtain during their reporting period, such credits must include “[a]t least two credit hours in the area of equity, diversity, and inclusivity.” See Proposed Rule 250.2(1)(a)(ii). In turn, Proposed Regulation 103.1(1)(a)(iii)(3) defines “Equity, diversity, and inclusivity” as:

an activity or portion within an activity that addresses standards of conduct in the legal profession related to the recognition, mitigation and elimination of bias, equal access to justice, and service of diverse populations. Courses should educate lawyers as to the aspirations that surpass ordinary expectations to further promote the ideal and goals of professionalism, including but not limited to:

• Recognition, mitigation and elimination of implicit and explicit bias;

• Diversity and inclusion initiatives in the legal profession; and/or;

• Equitable access to opportunities and resources by identifying and eliminating barriers that face marginalized groups, by acknowledging and understanding ingrained and systemic structural biases in society, and by committing to address these disparities. Marginalized groups include, but are not limited to groups that are historically underrepresented based on factors of culture, disability, ethnicity, gender and gender identity or expression, geographic location, immigration status, national origin, race, religion, sex, sexual orientation, socioeconomic status, and veteran status.

The proposed changes ought to be rejected in their current form. Not only are they ambiguously written, but under any interpretation, they would pose serious legal concerns under the Equal Protection Clause of the Fourteenth Amendment, as well as under the First Amendment’s prohibition on viewpoint discrimination. At a minimum, the proposed “Equity, Diversity, and Inclusivity” (EDI) changes must be significantly re-written to account for these issues. If the proposed changes are adopted as written, Mountain States Legal Foundation stands ready to evaluate viable legal challenges to the EDI provisions. I. The Proposed Rule Poses Significant Equal Protection Issues.

In Justice Harlan’s famous dissent in Plessy v. Ferguson, he noted that “Our Constitution is color-blind.” 163 U.S. 537, 560 (1896) (Harlan, J., dissenting). Justice Harlan stated: “In respect of civil rights, all citizens are equal before the law. The humblest is the peer of the most powerful. The law regards man as man, and takes no account of his surroundings or of his color when his civil rights as guaranteed by the supreme law of the land are involved.” Id. at 560. A significant number of EDI courses will focus not just on anti-discrimination principles, which are of course laudable. Instead, they will focus on racial power, and assigning racial characteristics to whole swaths of individual members of demographic groups. The state should play no part in encouraging such divisive messages, much less requiring them to be heard in order to obtain CLE credit. See, e.g., Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 748 (2007) (“The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”). EDI courses of the nature embraced by the proposed changes will likely suffer the same flaws of those in other states. For instance, in a class that was publicized as satisfying Missouri’s CLE requirement regarding “explicit bias or implicit bias, diversity, or cultural competency,” the speaker engaged in race-exclusionary language that would have understandably upset any reasonable audience:

Who decides what news gets covered? Who decides what TV shows are produced? Who decides what books get published? . . . You’ll get a sense of where this is. This is overwhelmingly controlled, right, by white America. Right? Now let’s look at the gender. White males in the US are 31% of the US population. Right? But if you think about it, right, . . . they have a much larger percentage . . . overrepresentation at law firms and everywhere else. Professor Kimberly Norwood, Implicit Bias 101: Life & the Legal Profession, Timestamp at 22:00 (June 29, 2020).1 In the above block quote, mentally replace the word “white” with “Jewish.” Would such an offensive message be countenanced? Now consider whether it is appropriate for Colorado to embrace the idea that courses like these are not only granted CLE credit, but affirmatively required to satisfy professional responsibility requirements.

1 Available at: https://www.huschblackwell.com/newsandinsights/implicit-bias-101-life-the-legal-profession. Incidentally, Professor Norwood states in her presentation that a 50-minute CLE session “is not adequate” and “in my view, it does more harm, because it’s so superficial.” See id. Timestamp at 5:05. 2

In other contexts, “equity and diversity” programs have become so racially charged that they have led to outright racial segregation. For instance, the Department of Education’s Office for Civil Rights (OCR) recently published its 2020 Annual Report to the Secretary, the President, and the Congress, where it noted several troubling examples of race-exclusionary policies that were couched in terms of equity:

• A teacher in a Chicago-area school district filed a complaint with OCR alleging that the district implemented a series of racial “equity” policies and programs that discriminated against staff, students, and job applicants; implemented certain policies and programs that discriminate against staff, students, and job applicants, including segregating staff and students into affinity groups based on race; used “Black Lives Matter” materials to advocate to students that white individuals bear collective guilt for racism, police brutality, and other social ills; and failed to discipline some students appropriately by allegedly taking race into consideration in its disciplinary decisions.

• OCR opened a directed investigation based on reports that a university in Kentucky segregated by race its incoming resident assistants for training purposes. As part of what the university called “White Accountability Training,” resident advisors who identified as white were allegedly given training on “microaggressions” and “white privilege,” while resident assistants who identify as “black, indigenous, [or] people of color,” were given separate training.

• OCR opened a directed investigation to examine whether a university in New York is discriminating on the basis of race, color, or national origin by offering and/or providing an exemption from the requirement to obtain vaccinations to students “who identify as Black, Indigenous, or as a Person of Color” based on their race, color, or national origin.

OCR has concerns that using curricular or training materials for students or staff which are based on racial classifications or stereotypes of individuals—solely based on their race—may violate Title VI by requiring school personnel to engage in activities that result in the different treatment of students based on their race, or which constitute racial harassment. Such policies or pedagogical practices that perpetuate the idea that students may be categorized by race, assigned a set of characteristics, and be considered to possess certain characteristics based on that race, may subject students or staff to discrimination in violation of Title VI. See U.S. Department of Education Office for Civil Rights 2020 Annual Report to the Secretary, the President, and the Congress, at 46 (January 2021) (emphasis added), https://www2.ed.gov/about/reports/annual/ocr/report-to-president-and-secretary-of-education- 2020.pdf.

The Department of Education’s conclusions regarding Title VI of the Civil Rights Act, although made in the context of education programs and activities, also implicate the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution, because courts typically find these provisions to be co-extensive. See Regents of Univ. of California v. Bakke, 438 U.S. 265, 284–87 (1978) (opinion of Powell, J.); see also Grutter v. Bollinger, 539 U.S. 306, 343 (2003). Thus, government efforts to encourage race-conscious blame assignment, characterizations of entire races as having “privilege” or “power,” and outright efforts to engage in racial segregation or different treatment based on race, will generally trigger coverage of the Equal Protection Clause. It would be unfortunate if embracing “equity, diversity, and inclusion,” in Colorado led to these sorts of principles being taught as part of mandatory CLE requirements, and embarrassing if crediting individual CLE courses containing such material were subject to successful legal challenges on this basis. II. The Proposed Rule Raises Significant Concerns Regarding Viewpoint Discrimination. Under any reading of the proposed changes to Regulation 103.1(1)(a)(iii)(3), it seems clear that EDI credit will be given to certain activities or portions within activities if they address standards of conduct in the legal profession related to the “recognition, mitigation and elimination of bias.” The same is true for equal access to justice, and the service of diverse populations. Presumably, EDI credit will not be offered for activities or portions of activities that challenge the idea that implicit bias is widespread, or decline to “recognize” such biases. Similarly, it seems unlikely that courses will qualify for EDI credit if they refuse to “acknowledge[e] and understand[] ingrained and systemic structural biases.” Indeed, the proposed Regulation may require any EDI-eligible course to “commit[] to address[ing] the[] disparities” caused by “ingrained and structural biases.” On the other hand, courses that encourage attorneys and judges to embrace colorblindness with respect to race, or convey the idea that addressing disparities in one context often requires treating individuals as groups in troublesome and sometimes illegal ways in other conrexts, would presumably not qualify for EDI credit. Any requirement that organizers of CLE events “recognize” bias—whether implicit or explicit—or “acknowledge,” “understand,” and “commit to addressing” disparities caused by “ingrained and systemic structural biases” in society, in order to have courses qualify for EDI credit, constitutes viewpoint discrimination. See Greenberg v. Haggerty, No. 20-3822, 2020 WL 7227251, at *14 (E.D. Pa., Dec. 8, 2020) (“At its most basic, the test for viewpoint discrimination is whether—within the relevant subject category—the government has singled out a subset of messages for disfavor based on the views expressed.”). In Greenberg, a district court enjoined a Pennsylvania rule of professional conduct, modeled on ABA Rule 8.4, which defined it as professional misconduct for a lawyer to “in the practice of law, by words or conduct, knowingly manifest bias or prejudice, or engage in harassment or discrimination.” See id. at *2. If the changes to Regulation 103 can be properly understood to endorse EDI credit for classes only if they recognize, acknowledge, understand, and commit to addressing bias or disparities—as opposed to programs challenging those same notions—then the proposed changes

will potentially be held unconstitutional. See id. at *14 (“A law found to discriminate based on viewpoint is an ‘egregious form of content discrimination,’ which is ‘presumptively unconstitutional.’”) (quoting Justice Kennedy’s concurrence in Matal v. Tam, 137 S. Ct. 1744, 1766 (2017). Nor is it any defense to say that EDI credit is merely a benefit offered to some qualifying speech, but not a prohibition on other forms of speech. See Matal, 137 S. Ct. at 1763 (opinion of the Court) (“[T]he disparagement clause cannot be saved by analyzing it as a type of government program in which some content- and speaker-based restrictions are permitted.”).2 Separately, the vagaries of the proposed Regulation will lead to further viewpoint discrimination, as the undefined term “diverse populations” permits excessive discretion to decide whether a course is entitled to EDI credit. Will a Mountain States Legal Foundation event on providing legal services to ranchers on the subject of property rights qualify for EDI credit, for instance? Are ranchers a diverse population, given the heterogeneity among ranch sizes and legal questions? How about an event on gun ownership rights under the Second Amendment? Given the extensive diversity of the population of gun owners on metrics like race, sex, and class, such an event ought to be potentially eligible for EDI credit, under the proposed changes. In another context, will an organization hosting an event about representing religious employers like Jack Phillips—the owner of Masterpiece Cakeshop—adequately meet the criteria? See Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Com’n, 138 S.Ct. 1719, 1732 (Kagan, J., concurring) (“[A] principled rationale for the difference in treatment cannot be based on the government’s own assessment of offensiveness.”) (internal quotation marks omitted). If such programs are not eligible, or if their eligibility will depend on who is reviewing the application for EDI credit, the changes to the Regulation must be clarified, and objective, non- discriminatory criteria must be elaborated. Cf. Greenberg, at *15 (“[T]he government has created a rule that promotes a government-favored, viewpoint monologue and creates a pathway for its handpicked arbiters to determine, without any concrete standards, who and what offends.”); see id. at *15 (determining that the plaintiff had suffered irreparable harm by alleging “that he will be chilled in the exercise of his First Amendment rights at CLE presentations and other speaking events if the Amendments go into effect . . . .”). As Justice Kennedy noted in his concurrence in National Institute of Family and Life Advocates v. Becerra, 138 S. Ct. 2361, 2378 (2018), “it is not forward thinking to force individuals to be an instrument for fostering public adherence to an ideological point of view they find unacceptable.” To be clear, any application for EDI credit that is rejected will give rise to these First Amendment questions, and force courts to address viewpoint discrimination issues. It would be regrettable and confusing to lawyers and judges for the proposed changes to be adopted, only to be enjoined by courts under the First Amendment.

2 Legal scholars also posit that these doctrines essentially create a limited right against “compelled listening” to certain messages, particularly where the message is not tied to another legal duty. See, e.g., Caroline Mala Corbin, The First Amendment Right Against Compelled Listening, 89 B.U. L. Rev., 939, 998 (2009) (“[T]he right against compelled listening does come into play in cases where the state forces its opinion onto people. In fact, the government rarely demands that individuals sit down and listen to its particular viewpoint. This very rarity supports the intuition that government coercion and viewpoint-based regulations, whether they be compelled speech or compelled listening, are an unconstitutional mix.”). 5

III. The Proposed Changes are Ambiguously Drafted and Leave CLE Organizers with Confusing Standards. Even a cursory review of the proposed changes reveals that the language is ambiguously drafted. These ambiguities will cause significant confusion over whether a CLE course qualifies for EDI credit under Regulation 103.1(1)(a)(iii)(3). First, any reader will notice the problem with alternately describing Continuing Legal Education programs as “an activity,” a “portion within an activity,” or as “courses.” An “activity or portion within an activity” will apparently count for credit if it addresses “standards of conduct in the legal profession related to the recognition, mitigation and elimination of bias, equal access to justice, and service of diverse populations.” But if one plans to attend “courses” under the definition—which are presumably a significant, though undefined subset of an “activity”—then the courses apparently have additional requirements to meet, involving “aspirations that surpass ordinary expectations,” as well as the three unnumbered bullet points in Regulation 103.1(1)(a)(iii)(3). Does the proposed Regulation really intend to draw a distinction between “courses,” on one hand, and other forms of activities or portions within activities, on the other hand? Additionally, this portion of the draft rule is written in the conjunctive, to require that EDI activities must address all three items: standards of conduct in the legal profession related to (1) the recognition, mitigation and elimination of bias; (2) equal access to justice; and (3) service of diverse populations. Organizations that hope to apply for EDI credit may soon learn that any proposed course must contain all three elements, and not just 1 or 2 of these items. Is it really the intention to disqualify every application unless it involves material about all three of these elements?3 Next, the Proposed Regulation’s use of the term “diverse populations” is itself troublesome, because it is wholly undefined. We can infer that it is different from “marginalized groups,” which is exhaustively defined in the third unnumbered bullet point. But beyond that, there’s little indication of how heterogenous a group must be before it is diverse, or how homogenous a group can be before it stops being diverse. At the very least, we expect EDI credit to be rejected in some cases when an activity does not involve “diverse” populations. This could mean excluding, for example, activities regarding providing legal services to a homogenous group of individuals referenced by a single trait, such as representing the indigent, or immigrants who are illegally present in the United States. Similar problems arise when the proposed Regulation describes EDI “courses.” What does it mean that a course “should” educate lawyers as to the aspirations that surpass ordinary expectations? For those organizations that want to qualify as EDI-eligible, must they adhere to this standard? Or is “should” more of an advisory idea, offering a hortatory suggestion that they may

3 Note, also, that the first of these standards is also written in the conjunctive, to mean that an activity or portion within an activity must address standards of conduct related to “recognition, mitigation and elimination” of bias. An activity or portion within an activity that addresses only 1 or 2 of these items does not qualify for EDI credit, under the current language. 6

follow, at their discretion? Before any changes to these provisions are finalized, this language must be clarified. Next, even if “should” means “must,” the requirements for EDI courses are ambiguous. Must an EDI course include all three of the unnumbered bullet points describing the “ideal and goals of professionalism”? Or only one? Or none of them? Or all three and more? We know that the “ideal and goals of professionalism” include, but are not limited to, the three bullet points. After the second bullet point is an “and/or” disjunctive, which suggests that any of the three bullet points suffices to meet the language above it. But is that the right interpretation of the Regulation? Since the ideal and goals are “not limited to” the bullet points, must any of the three bullet points be satisfied at all? That is never explained. Indeed, a reader could be forgiven for thinking that the phrase “including but not limited to” actually requires an organization applying for EDI credit to meet all three bullet points, as well as other, unspecified facets of the “ideal and goals of professionalism.” Organizations trying to obtain EDI credit will have to learn through trial and error. Last, the requirements for courses seem to be unnecessarily onerous, and may actively serve to mislead attorneys and judges about their professional responsibilities. Continuing Legal Education courses generally educate lawyers about their duties to clients, the courts, and the public. Some have other goals, such as educating lawyers about the need to seek help in cases of addiction or substance dependence. But we are unfamiliar with any requirement in the country that a CLE course must educate lawyers about “aspirations” and goals “that surpass ordinary expectations,” so as to promote an ideal vision of professionalism. Educating lawyers about actual professional expectations is one thing. If professionalism standards need to be moved up, then such an action should be taken deliberately and expressly; but we should not force lawyers and judges to take classes implying that they must meet some vague notion of “higher than you would expect.” Conclusion

The proposed changes to the Regulations ought to be abandoned or, at a minimum, significantly modified. Presently, they are ambiguous, likely constitute viewpoint discrimination, and may lead to troubling and illegal racially-exclusive messages being delivered to judges and lawyers under the blessing of the state’s CLE requirements. I look forward to testifying and answering any questions at the hearing on April 6, 2021. Sincerely, William E. Trachman Associate General Counsel Mountain States Legal Foundation [email protected] Colorado Bar No. 46584

7 From: J. F. Muhaisen To: stevens, cheryl Subject: Comment regarding proposed rule change Date: Monday, March 29, 2021 2:06:07 PM

Dear Ms. Stevens,

Please accept my comment for the proposed rule change referenced below.

I support the proposed rule change.

I am was born in Denver to Palestinian immigrant parents and have observed first hand in my personal life how far we have to go as a community in regard to equality, diversity, and inclusivity. My experience in the legal profession is no different. I believe more education for attorneys on this subject is an excellent idea and could have a positive impact on a profession that has unfortunately lacked diversity.

Thank you for your time.

Regards,

J. F. Muhaisen, #33875

Proposed Rule Change:

a. Beginning January 1, 2023, the seven credit hours devoted to professional responsibility must include the following:

i. At least two credit hours in the area of equity, diversity, and inclusivity, and

ii. At least five credit hours in the areas of legal ethics or legal professionalism. ... 3. Equity, diversity, and inclusivity (EDI) comprise an activity or portion within an activity that addresses standards of conduct in the legal profession related to the recognition, mitigation, and elimination of bias; equal access to justice; and service of diverse populations. Courses should educate lawyers as to the aspirations that surpass ordinary expectations to further promote the ideals and goals of professionalism, including but not limited to: • Recognition, mitigation, and elimination of implicit and explicit bias; • Diversity and inclusion initiatives in the legal profession; and/or • Equitable access to opportunities and resources by identifying and eliminating barriers that face marginalized groups, by acknowledging and understanding ingrained and systemic structural biases in society, and by committing to address these disparities. Marginalized groups include, but are not limited to, groups that are historically underrepresented based on factors of culture, disability, ethnicity, gender and gender identity or expression, geographic location, immigration status, national origin, race, religion, sex, sexual orientation, socioeconomic status, and veteran status."

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NOTICE OF PUBLIC HEARING AND REQUEST FOR COMMENTS HEARING TO BE HELD TUESDAY, APRIL 6, 2021 AT 3:30 P.M. DEADLINE FOR COMMENTS MONDAY, MARCH 29, 2021 AT 4 P.M. The Colorado Supreme Court will conduct a hearing on the proposed rules and regulations listed below on Tuesday, April 6, 2021 at 3:30 p.m. via WebEx. Written comments on the proposed changes should be sent to the Clerk of the Colorado Supreme Court, Cheryl Stevens at 2 E. 14th Avenue, Denver, Colorado 80203 or emailed to [email protected] Persons wishing to speak at the hearing should notify Ms. Stevens by email [email protected] or by telephone 720-625-5150 All comments and speaking requests must be received no later than Monday, March 29, 2021 at 4 p.m. Colorado Rules of Procedure Regarding Attorney Discipline and Disability Proceedings, Colorado Attorneys’ Fund for Client Protection, and Mandatory Continuing Legal Education and Judicial Education Rules 250.1, 250.2, 250.6, 250.9 and 250.10 Regulations Governing Mandatory Continuing Legal and Judicial Education for the State of Colorado

The Washington state bar considered implementing a program where EDI CLE would be required. This is an example of two of the 900 plus comments:

1. I am in favor of the suggested amendment, but I feel that only one credit in this area every 3 years is too little. It should require at least one credit per year, if not more. The legal system and legal profession are full of systemic racism and heavily contribute to the criminalization of poverty and mass incarceration. There is also almost no understanding of language access obligations and best practices in much of the state. Attorneys working in all practice areas should show a commitment to being part of the solution, rather than perpetuating the problems 2. I am a gay Iranian-American and am in favor of equity and inclusion efforts, yet recognize that adding additional requirements to the MCLE regulations may themselves actually hurt equity and inclusion within the legal profession. I am fortunate to have a well-paying and stable legal job, but what about those in our community that are struggling? What if they are unable to meet these requirements because they cannot find a reasonable and affordable option for them? Please stop adding additional MCLE requirements when jurisdictions like the District of Columbia do not even have any. There are other ways of ensuring that you are up to speed with the law rather than mandatory requirements like this that constantly threaten to revoke or suspend your license.

From: Kathleen Murphy To: [email protected]. Subject: CCDB Support for EDI CLE rule change Date: Monday, March 29, 2021 8:22:45 AM

Dear Ms. Stevens,

The Colorado Criminal Defense Bar wholeheartedly supports including training on EDI as part of lawyers’ mandatory ethics CLE ethics requirement. We have offered similar opportunities for CCDB members for several years and have struggled to understand the inconsistent approach regarding granting ethics credits for such educational opportunities (our most recent ethics training included a presentation by (now retired) Denver County Court Judge Gary Jackson about diversity on the bench; the CLE office refused to give any ethics credit for that thoughtful and helpful session). We believe that all Colorado lawyers will find such training as beneficial as our members have, and urge you to adopt this proposed change.

Thank you – Colorado Criminal Defense Bar Board of Directors

Kathleen Murphy Colorado Criminal Defense Bar Colorado Criminal Defense Institute 303 758 2454

Join us for the following events:

Policy Meetings; Fridays at Noon (subject to change with the legislative activities) Jan 22, Feb 19, Mar 19, April 16 2021 DUI – October 22 – 23, 2021 2021 Olom Awards – Denver Athletic Club – September 10, 2021

12 February 2021

Ms. Cheryl Stevens Clerk of the Colorado Supreme Court 2 E. 14th Avenue Denver, Colorado 80203

Re: Proposed 2-Hour CLE Requirement for EDI Education

Dear Ms. Stevens:

I am writing in support of the Colorado Supreme Court’s proposed amendment to the CLE rules and regulations to include education in equity, diversity, and inclusion. I have been a longtime advocate for this change, and it is needed even more than ever. The change is actually long past due, given the racial justice and sexual harassment movements, let alone the alleged abuses within the judicial department.

I have been an advocate for equity, diversity, and inclusion in the Denver legal community for twenty years. I conceived of and organized the Deans’ Diversity Council in 2006 and served as the founding director of the Center for Legal Inclusiveness from 2007-2013. I also served as co- chair of the Colorado Bar Association’s Diversity Committee, founded the Rocky Mountain Legal Diversity Career Fair, and was a founding member of the Colorado Lawyers’ Committee’s Hate Violence Task Force. I and others have advocated for over 15 years for this proposed change in the CLE requirements.

Traditional diversity efforts in legal organizations have largely failed, leaving the legal profession among the least diverse, which poses a significant threat to public support for the judicial system. I have tracked demographic data for our profession for the past decade and we lawyers are in a perpetual race to the bottom of the list:

U.S. Bureau of Labor Statistics - Occupation by Race and Ethnicity

2019 (2018 data) Category Black or Asian Hispanic or Total Percentage African Latino American Medical Scientists 9.5 20.7 8.6 38.8 Physicians & Surgeons 7.6 19.8 7.4 34.8 Electrical Engineers 8.4 17.8 8.1 34.3 Aerospace Engineers 7.1 17.6 7.8 32.5 Accountants 9.3 12.7 7.6 29.6 Chemists 4.2 16.8 7.7 28.5 Architects 4.5 11.5 10.1 26.1 Dentists 1.6 17.6 4.3 23.5 Psychologists 7.7 3.0 11.2 21.9 Lawyers 5.5 4.9 6.1 16.5 CEOs 3.5 5.9 6.1 15.5

7887 East Belleview Avenue, Suite 1100 ▪ Denver, CO 80111 ▪ 303.770.2563 [email protected] Website: www.kathleennaltyconsulting.com

2020 (2019 data) Category Black or Asian Hispanic or Total Percentage African Latino American Medical Scientists 7.3 27.8 8.8 43.9 Electrical Engineers 7.3 19.9 8.7 35.9 Physicians & Surgeons 8.2 18 7.6 33.8 Dentists 0.8 23.6 7.2 31.6 Accountants 8.5 12 8.9 29.4 Chemists 7.0 13.7 8.2 28.9 Aerospace Engineers 6.5 14.5 7.3 28.3 Architects 6.3 8.8 8.5 23.6 Psychologists 5.8 3.5 10.3 19.6 Lawyers 5.9 5.7 5.8 17.4 CEOs 4.1 5.8 6.2 16.1

2021 (2020 data) Category Black or Asian Hispanic or Total Percentage African Latino American Medical Scientists 3.8 37.4 4.7 45.9 Surgeons 4.2 13.4 15.6 33.2 Chemists 10.7 19.7 2.2 32.6 Electrical Engineers 5.4 17.2 8.9 31.5 Accountants 9.5 11.2 10.2 30.9 Architects 7.2 12.5 8.5 28.2 Aerospace Engineers 6.8 9.1 10.5 26.4 Dentists 1.4 16.6 5.5 23.5 Psychologists 11.8 4.1 3.5 19.4 Lawyers 6.8 5.2 5.8 17.8 CEOs 4.3 5.4 7.4 17.1

This data is a constant source of shame for me since we lawyers are the guardians of equity and justice in our society; it isn’t the job of the dentists, doctors or engineers.

I applaud the leadership of the Colorado Supreme Court and the Office of Attorney Registration in proposing the new EDI requirement and urge its swift adoption.

Best Regards,

Kathleen B. Nalty

7887 East Belleview Avenue, Suite 1100 ▪ Denver, CO 80111 ▪ 303.770.2563 [email protected] Website: www.kathleennaltyconsulting.com ROBERT G. NATELSON Professor of Law (ret.), The University of Montana 266 ZANG STREET LAKEWOOD, COLORADO 80228 (720) 398-8999 [email protected]

March 26, 2021

Ms. Cheryl Stevens Clerk of the Colorado Supreme Court 2 E. 14th Avenue Denver, Colorado 80203 Dear Ms. Stevens: Following is my comment on the proposed “ethics, diversity, and inclusion” requirement for continuing legal education: * * * * My name is Robert G. Natelson. I have been admitted to practice in Colorado continuously since 1978. After practicing law in the Denver-Boulder area for several years and teaching part time at University of Colorado and University of Denver, I pursued an academic career full time for 25 years, primarily but not exclusively at the University of Montana. Although I left academia in 2010, I remain an active constitutional scholar whose research articles have been cited by the highest courts of at least fifteen states, by several federal court judges (including then-Judge Neil Gorsuch), and, in seven cases, by four Supreme Court justices, including Chief Justice John Roberts and the late Antonin Scalia. My academic experience, coupled with extensive service in public life, tells me that phrases such as “equity, diversity, and inclusion”—while void of political content when considered in isolation— when used in this context invariably communicate a left-of-center political agenda. (The focus is never on “inclusion” of political and religious conservatives, for example; and I’m sure that “equity” does not refer to the body of law originally administered by the English High Court of Chancery.). I do not share that agenda, and even if I did I would object strongly to imposing politically-charged “education” on anyone as a condition for practicing law. From the standpoint of principle, that is not the American way; rather, it is reminiscent of the political litmus tests applied during the McCarthy Era. From the standpoint of practicality, students already are flooded by EDI subjects in college and law school. There are other subjects they need much more. Accordingly, if the Court believes that even more exposure to the EDI agenda is necessary to a lawyer’s knowledge, I respectfully propose some balancing two-credit requirements that are also necessary to an American lawyer’s knowledge. And they have the additional quality of being, unlike EDI, widely neglected in law school. * The Original Constitution: What It Meant to the Founders and Why * The Neglected Constitution: The Second Amendment, Impeachment, and Other Topics They Didn’t Teach You in Con Law When They Were Talking About Pornography Cases * Methods and Uses of Constitutional Originalism. * “Few and defined”: Constitutional Limits on the Federal Government and How the States Can Enforce Them * Beneficial and Counter-Productive Laws in a Free Society * Economic Realities and the Limits of Government Regulation * Public Choice Economics: Understanding How Political Actors Really Make Decisions * Connecting the Dots: How the Heritage of English Law Affects Us Today (this could be a vehicle for teaching the “equity” that is neglected in law school) * “Climate Change:” A Case Study in Justifying Regulatory Overreach * The Free Exercise of Religion

**** If you do include a two-credit EDI requirement, then I ask that you include at least two balancing two-credit requirements on topics such as those listed above. For today’s lawyers, they are needed much more. Thank you very much for your attention.

Very truly yours,

ROBERT G. NATELSON Atty. Regis. 8768 Jon J. Olafson 1700 Lincoln Street, Suite 4000 Denver, Colorado 80203 [email protected] Direct: 303.562.9767 LEWIS BRISBOIS BISGAARD & SMITH LLP

March 24, 2021

VIA EMAIL Cheryl Stevens, Clerk Colorado Supreme Court 2 E. 14th Avenue Denver, Colorado 80203 [email protected]

Dear Members of the Colorado Supreme Court,

My name is Jon Olafson. I am a partner at Lewis Brisbois in Denver, Colorado and I currently serve on the Colorado Bar Association’s Executive Council. I am also an open and out gay man. For so many reasons, I strongly support the adoption of revised Rule 250.2, which would require two hours of CLE related to equity, diversity, and inclusivity (the “EDI CLE”). I believe that these two credits will make a world of positive difference in terms of professionalism amongst attorneys, greater sensitivity toward diverse people throughout the State of Colorado, and improved relationships with our clients.

The Oath of Admission taken by all Colorado attorneys states, “I will treat all persons whom I encounter through my practice of law with fairness, courtesy, respect and honesty.” The proposed EDI CLEs will help all Colorado attorneys meet this important part of our Oath of Admission. While many harmful and unprofessional comments to opposing counsel and potentially to clients may reflect unconscious bias and may not be intended, the negative impact is still the same. Good intentions do not wash away that negative impact. The EDI CLEs will equip our attorneys with tools to understand and adjust for implicit bias, the result of which creates greater professionalism, courtesy, fairness, and respect.

The Oath of Admission also states that “I will never reject, from any consideration personal to myself, the cause of the defenseless or oppressed.” Without question, our profession is premised on principles of equity, access to justice, and the betterment of society. The proposed EDI CLEs go to the heart of this important statement and will assist all attorneys in Colorado meet this important endeavor.

Cheryl Stevens, Clerk Colorado Supreme Court March 24, 2021 Page 2

I have now practiced law for 20 years. In my experience as a gay attorney, this proposed rule will absolutely assist Colorado attorneys with interpersonal dynamics and professionalism. Implicit bias is real and it has a huge negative impact on our diverse attorneys, clients and staff. By presenting these EDI CLEs, we will all take huge steps toward professional and personal positive growth.

I strongly urge the Colorado Supreme Court to approve this important and fundamental new rule. Thank you for your consideration.

Sincerely,

Jon J. Olafson

4843-5268-6306.1

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Dear Colorado Supreme Court,

I am writing in full support of creating an Equity, Diversity, and Inclusion CLE requirement. As a white, queer, non-binary law graduate, I have seen firsthand how our legal profession perpetuates anti-Black, Brown, and Indigenous racism and inequity.

I fully trust the members of the President’s Diversity Council in bringing forth this rule change.

This requirement will not be a full solution, but it will be another step in creating a more equitable legal system.

We have all been a part of the problem and I fully support Colorado being a part of the solution by joining the growing number of jurisdictions that have adopted this mandatory CLE requirement.

Sincerely,

Amber Paoloemilio February 14, 2021

Cheryl Stevens Clerk of the Colorado Supreme Court [email protected] Sent via email

RE: Comment in Support of Proposed Changes to Rules 250.1, 250.2,250.6, 250.9 and 250.10

Dear Ms. Stevens:

I write to support the proposed changes to Rules 250.1, 250.2, 250.6, 250.9 and 250.10. My name is Noah Patterson and I am an attorney who works at the Colorado Attorney General’s Office. Of course, I write this letter in my personal capacity and not on behalf of the Attorney General’s Office. I support the proposed rule changes enthusiastically and without reservation.

The proposed rule changes would require attorneys to complete at least two credit hours per CLE compliance period in the area of equity, diversity, and inclusivity. If the events of the past year have shown us anything, it is that we all have a lot to learn. Learning about equity, diversity, and inclusivity is consistent with—and even required by—our duty as lawyers to “seek improvement of the law, access to the legal system, the administration of justice and the quality of service rendered by the legal profession.” Colo. RPC pmbl. ¶ 6. Unless we take time to learn about and honor equity, diversity, and inclusivity, we will fail to improve the administration of justice and the quality of our services as lawyers.

For the past few months, my Inn of Court pupilage group has been reading and discussing educational resources included in the American Bar Association’s 21-day Racial Equity Habit-Building Challenge (see https://www.americanbar.org/groups/labor_law/membership/equal_opportunity/). We have learned so much during this study, and perhaps more importantly, we’ve realized how much more we have to learn. And, of course, racial equity is only one facet of equity, diversity, and inclusivity.

The proposed rule changes are necessary to ensure that the legal profession remains able to administer justice and uphold the rule of law. Thank you very much for your and the Court’s consideration of these proposed rule changes.

Sincerely,

Noah Patterson Colo. Attny. Reg. No. 42339 March 29, 2021

Hon. Brian Boatright (Chief Justice) All Associate Justices Colorado Supreme Court 2 East 14th Avenue Denver, CO 80203

Re: Proposed Changes to Rule 250.2 CLE Requirements in Colorado

Dear Chief Justice Coats and all Associate Justices:

With months of widespread protests and organizing that were spurred by the death of George Floyd, our nation has, once again, been forced to reckon with our history of systemic racism and bias within powerful institutions like policing and criminal prosecution, and its resulting and ongoing harms to people of color and other marginalized groups. While the primary subject of these mass demonstrations were to demand justice and accountability for the murders of Black lives at the hands of law enforcement, one would be remiss to conclude that issues of systemic racism and other forms of bias and discrimination are limited to these professions.

Indeed, the protests and advocacy surrounding the deaths of George Floyd, Elijah McClain, Breonna Taylor, and many others were moments of reckoning for many employers and institutions alike. Issues of bias and discrimination that were once ignored by management were brought to the forefront of many workplaces. As an increasing number of companies and organizations issued solidarity and diversity, equity, and inclusion (“DEI” or “EDI”) statements, many employees justifiably challenged whether their employers’ words would turn to action, because they experienced these same organizations repeatedly fail to examine and address the bias, inequities, and discrimination that persisted within their own walls.

No profession – and certainly not one with a longstanding history of exclusion like the legal profession – is immune from biased decisionmaking, both within their own organizations and in the services they provide. As members of the Plaintiffs Employment Lawyers Association (“PELA”), we are acutely aware of the insidiousness and harms of bias and discrimination in the workplace, the barriers and challenges faced by diverse employees across many sectors, the value of EDI, and, importantly, we recognize that no person – not even plaintiffs employment attorneys like ourselves who have dedicated our careers to addressing these harms for our clients – is exempt from acting upon biases and perpetuating inequities.

Of all employment sectors, the legal profession remains one of the least diverse in the nation,1 and Colorado is no exception. According to data collected by the Office of Attorney Regulation Counsel (OARC), a mere 6.2% of active practitioners in Colorado are Hispanic,

1 Michelle Anderson, Legal Education Reform, Diversity, and Access to Justice, 61 Rutgers L. Rev. 1011, 1012 (2009). 1

Latino, or of Spanish origin, despite being over one-fifth of the population in the state.2 Only 2.5% of attorneys in Colorado are Black or African American, and only 2.8% are Asian, despite being 5.3% and 4.1% of the population, respectively.3 While women graduate law schools at roughly the same rates as men, OARC data show a steep drop-off of practicing female attorneys beginning in the 30-39 year old age group, with progressively greater disparities pronounced in every age group thereafter.4 In addition, less than 0.4% of attorneys in Colorado identified as transgender, and only .1% identified as non-binary.5 Furthermore, only 0.5% of attorneys nationwide identified as having a disability, when nearly 20% of the general population has a disability.6 These numbers are even more dismal when examining the number of diverse partners, judges, district attorneys, and public defenders in Colorado.7 While there have been drastic changes in the composition of lawyers and legal institutions in the last half-century, we are far from being a diverse, inclusive, and equitable profession.

DEI closely resembles concepts of justice, equality, and the opportunity for full and meaningful participation in society,8 rendering it even more essential and urgently needed in the legal profession. Despite the legal profession’s significant agreement regarding the importance of DEI,9 the law continues to lag behind most other professions in this regard10 for various reasons, including barriers to entry, stereotypes and bias against minority individuals, and exclusion and marginalization of diverse individuals in the workplace which is often the result of implicit or

2 2019 Annual Report, THE OFFICE OF ATTORNEY REGULATION COUNSEL, 2019, at 2, https://coloradosupremecourt.com/PDF/AboutUs/Annual%20Reports/2019%20Annual%20Repo rt.pdf. Racial demographic data was based on a voluntary, anonymous demographic survey as part of the annual attorney registration process. 3 Id. 4 Id. at 3. In fact, male practicing attorneys nearly double the number of practicing women by the 50-59 year old age group, and the disparity increases with each decade, with male attorneys outnumbering women by a multiple of eight for the 70-79 year old age group. 5 Id. at 47. 6 Angela Morris, Are law firms committed to disability diversity? A handful of firms have taken action, ABA JOURNAL, Oct. 24, 2018, https://www.abajournal.com/news/article/law_firms_disability_diversity. 7 David Migoya, Denver Post review finds ranks of Colorado judges, prosecutors overwhelmingly white, DENVER POST (July 19, 2020), https://www.denverpost.com/2020/07/19/colorado-courtrooms-diversity-black-latino-judges- lawyers/. 8 Jason P. Nance, An Empirical Analysis of Diversity in the Legal Profession, 47 Conn. L. Rev. 271, 273-74 (2014), https://scholarship.law.ufl.edu/cgi/viewcontent.cgi?referer=https://scholar.google.com/&httpsred ir=1&article=1583&context=facultypub. 9 Jewlya Lynn, et al., Diversity in Colorado’s Legal Profession, COLORADO PLEDGE TO DIVERSITY LEGAL GROUP (2007), https://www.researchgate.net/publication/259760310_Diversity_in_Colorado's_Legal_Professio n. 10 Supra note 1, at 1012 (the legal profession continues to lag behind in minority representation compared to other specialized professions that share similar histories of racial exclusion, such as doctors, surgeons, economists, journalists, and civil engineers). 2

explicit bias.11 “Within the legal profession, white males are the majority demographic group and also the group that dominates the rank of partner. . . . Loyalty, cooperation, favorable evaluations, mentoring, and the allocation of rewards and opportunities all increase in likelihood for individuals who are similar in important respects, including sex, race, and ethnicity. The result is to prevent outsiders from developing ‘cultural capital’: access to advice, support, desirable assignments, and client development activities.”12 Along these lines, the literature also shows that “white males occupy different employment networks than women and minorities, and these networks are not equal in prestige or their ability to translate into successful employment outcomes.”13 Unchecked, these issues present serious obstacles to both the recruitment and retention of diverse attorneys in all areas of the law.

In addition to the necessity of increasing DEI within our profession, DEI education and measures are critical for providing culturally competent legal services, increasing access to justice, establishing legitimacy in the legal system, and building public trust in the perception of a fair and equitable judicial system.14 If our legal system does not reflect the diversity of our community, it will lose trust and credibility among communities who are increasingly diverse, and who may feel that their perspectives and interests are not being adequately represented or adjudicated. Indeed, “[b]ecause a lack of diversity is caused by discrimination and inequalities, a lack of diversity [and equity in the law] weakens the meaning of the law and the legal profession in general.”15 It indicates a lack of commitment and legitimacy in practicing the principles it promulgates. This crisis was reiterated by the American Bar Association’s Presidential Diversity Initiative: The United States occupies a special place among the nations of the world because of its commitment to equality, broad political participation, social mobility, and political representation of groups that lack political clout and/or ancestral power. . . . Without a diverse bench and bar, the rule of law is weakened as the people see and come to distrust their exclusion from the mechanisms of justice.16

We can – and must – do better. In a profession with a pernicious history of discrimination and exclusion that continues to permeate the practice today, the proposed changes requiring two CLE credits to be on the subject of DEI out of the seven already mandated to be devoted to professional responsibility would be a small, but significant step toward strengthening the legal

11 Supra note 8, at 275; see Robert L. Nelson, et al., Perceiving Discrimination: Race, Gender, and Sexual Orientation in the Legal Workplace, 44(4) Law & Social Inquiry 1051, 1053-54 (Nov. 2019). 12 Todd Collins, et al., Intersection disadvantages: race, gender, and age discrimination among attorneys, Social Science Quarterly 1, 4 (2009) (internal citations omitted). 13 Id. 14 Supra note 1; supra note 8, at 279. 15 Id. 16 Supra note 8 (citing Diversity in the Legal Profession: The Next Steps, AM. BAR ASS’N, 9 (Apr. 2010), http://www.americanbar.org/content/dam/aba/administrative/diversity/next_steps_2011.authchec kdam.pdf). 3 profession, our provision of culturally competent services to our clients, and our ability to advance the fair and equitable administration of justice.

Respectfully submitted,

Colorado Plaintiff Employment Lawyers Association

From: Rebekah Pfahler To: stevens, cheryl Subject: Comment re: Rule 250.2 Rule Change - DNE Date: Monday, March 29, 2021 8:04:32 AM

Good morning,

My name is Rebekah Pfahler and I am a licensed Colorado attorney. I'm writing to express full support for the Proposed Rule 250.2 rule change.

Requiring every licensed Colorado attorney to take at least 2 credit hours in the areas of equity, diversity, and inclusivity during each compliance period is a good first step in doing what we can do make sure all attorneys are aware of implicit bias and take proactive steps to recognize/minimize that bias in their own practice.

Thank you,

Rebekah

Rebekah I. Pfahler She/Her/Hers Supervising Attorney of Family & Children's Unit Colorado Legal Services 1905 Sherman Street, Suite #400 Denver, Colorado 80203 Phone: 303-866-9368 Fax: 303-866-9302 Email: [email protected]

THIS MESSAGE IS INTENDED FOR THE USE OF THE LAW FIRM TO WHICH IT IS ADDRESSED AND MAY CONTAIN INFORMATION THAT IS PRIVILEGED AND CONFIDENTIAL. If the reader of this message is not the intended recipient or the employee or agent responsible for delivering the message to the intended recipient and you have received this communication in error, please notify CLS immediately, and return the original message to us at the above address. Thank you.

Colorado Legal Services Clients – IMPORTANT NOTICE!

This email is protected by attorney-client privilege. “Attorney-client privilege” means that your attorney (CLS, or a volunteer attorney assisting you through CLS) must keep your information private unless you give your attorney permission to share it, or if the law requires it to be disclosed. Only you can waive this privilege. You gave CLS permission to send you information about your legal problem through email. But, the email provider you use could be forced to turn over your emails if a separate legal matter arose, and that could even include emails that CLS staff or volunteer attorneys have sent you in confidence. Therefore, it’s best to not use personal email on a device that is not yours, whether it’s at work or at another place such as a library. Also, you should never forward emails sent from CLS or your volunteer attorney to other people, even friends or family members, because the emails you share with them will no longer be protected by “attorney-client privilege.” From: Porteus, Max To: stevens, cheryl Subject: Comments re: proposed EDI CLE rule Date: Wednesday, March 24, 2021 3:17:52 PM

Dear Ms. Stevens,

My name is Max Porteus. I am a 3L at the University of Denver Sturm College of Law. I am not an attorney—so if these public comment requests apply only to attorneys, then please disregard this email.

I am not an expert in “diversity, equity, and inclusion” (DEI). I do have substantial experience, however, in trainings, meetings, and other forms of professional development relating to DEI. Before law school, I taught middle school for six years. As part of my responsibilities as a teacher, I attended numerous trainings relating to DEI. Racism, sexism, and various other forms of discrimination are serious evils which must be eradicated. But lately it seems like conversation regarding these issues has devolved, more or less, into groupthink.

I thought the committee may be interested in a few arguments that are rarely acknowledged or discussed. Rather than write an overly long email, I will just provide a short summary and linked articles:

1. Implicit/unconscious bias training is ineffective, and possibly counterproductive. Please see this article from Scientific American and this article from Frank Dobbin and Alexandra Kalev. 2. The “Implicit Association Test” (IAT), on which proponents and facilitators of DEI trainings frequently rely, is not a valid or reliable test. Please see this article from Jesse Singal and this one from German Lopez.

I support the CBA’s desire to acknowledge and address complex issues like racism, sexism, and other forms of discrimination. And I further support the CBA’s commitment to broadening Coloradans’ access to justice.

I suppose I don’t have a preference regarding whether the proposed rule should be adopted. On one hand, the requirement doesn’t seem too burdensome. On the other hand, if the CBA envisions DEI sessions focused on unconscious bias (rooted, usually, in things like the IAT), then I would be concerned that no actual progress would be achieved. Lawyers who are interested in eliminating discrimination in Colorado would be better off volunteering their time with various nonprofits, or serving as a mentor to students or professionals who may be likely to encounter discrimination in their lives.

Further, I am not clear what this part of the rule means: “Courses should educate lawyers as to the aspirations that surpass ordinary expectations to further promote the ideal and goals of professionalism…”

Thank you for your time,

Max Porteus J.D. Candidate 2021 University of Denver – Sturm College of Law

Articles/books referenced:

Tiffany L. Green & Nao Hagiwara, The Problem With Implicit Bias Training, Scientific American, Aug. 28, 2020. Frank Dobbin & Alexandra Kalev, Why Doesn’t Diversity Training Work? The Challenge for Industry and Academia, Anthropology Now, Sep. 2018 Jesse Singal, Psychology’s Favorite Tool for Measuring Racism Isn’t Up to the Job, New York Magazine, Jan. 2017. German Lopez, For Years, This Popular Test Measured Anyone’s Racial Bias. But It Might Not Work After All. Vox, Mar. 7, 2017.

From: Ramos, Gregory J. To: stevens, cheryl Subject: Proposed Rule Change 250.2 Date: Monday, March 29, 2021 12:26:27 PM Attachments: image001.png

To the Honorable Justices of the Colorado Supreme Court:

I am writing to register my opposition to the proposed changes to Rule 250.2 that would impose a CLE requirement related to “the area of equity, diversity, and inclusivity.” I am a licensed attorney in Colorado and Missouri. Additional CLE requirements in these areas do not further any of our ethical obligations as attorneys. I believe these requirements will unreasonably and unnecessarily replace valuable instructional hours relating to ethics with instruction that can actually do harm.

As a Missouri-licensed attorney, I am subject to a similar requirement that has recently been promulgated by the Missouri Supreme Court. I attended my first CLE on the subject last year and found that it was nothing more than political indoctrination. It did not serve any beneficial purpose; it merely perpetuated the divisive narrative that plagues our country today. What is considered “elimination of implicit bias” to some, is often viewed by others as nothing more than an attempt to stifle free speech and freedom of association. I applaud prior attempts to enhance professionalism among members of the bar, and I would encourage that we continue to focus on fostering respect and communication, not enforcing the politically-driven standards of those in power on others.

My perspective is admittedly colored by my own experience as a first-generation Asian American, baptized and raised in a Roman Catholic family. I have seen much discrimination against Asians and Catholics. I can recount two very recent examples of how the actions of some in the name of “diversity,” no matter how honorable in intent, have served to harm my family and communities.

1. Recently, there was a mass shooting in Atlanta in which massage parlor workers and their customers were murdered. Many were Asian. Despite the fact that the authorities immediately made clear in their public comments that there was no evidence of any race- based motive, and the alleged gunman, himself, offered a motive unrelated to race, many people described the events as an anti-Asian act. Messages of “tolerance” by those outside of our community that seized on this narrative were viewed by many Asians as perpetuating stereotypes about Asian prostitution and as driving a wedge between Asians who, in large part, seek assimilation into American society and the greater American population. 2. Recently, the Washington Supreme Court overturned a lower court ruling that dismissed an employment discrimination case based on sexual orientation against a Catholic organization. This has been described as a “landmark decision,” and has import for religious organizations. My own firm “cancelled” client advisories intended for religious organization clients that had been prepared and sent for the purpose of informing them about this development. This act, purportedly done out of a commitment to our firm’s own anti-discrimination policy, harmed our clients, embarrassed our firm, and offended many Catholics.

My point is that when we, as attorneys and officers of the court, prejudicially take sides, we can often end up hurting our reputations, our clients, our communities, and justice itself. In my humble based on my experiences, requiring attorneys to undergo the proposed CLE could just end up causing many of us to exchange one prejudice for another and should be rejected.

Respectfully, Gregory J. Ramos, Esq.

Gregory J. Ramos - Member Qualified in Colorado and Missouri

633 Seventeenth Street, Suite 3000, Denver, Colorado 80202 Direct: 303.299.8332 | Fax: 303.298.0940 [email protected] | www.shermanhoward.com

CONFIDENTIALITY NOTICE

From: Lisa Sahli To: stevens, cheryl Subject: Proposed changes to CLE requirements Date: Wednesday, January 27, 2021 12:04:06 PM

I just read the OARC's update regarding the proposed changes. I just wanted to write in to say that I think the proposed changes are fabulous (and probably long over due). So please mark one new vote in the "yes" column.

Lisa R. Sahli, Esq. Attorney at Law, PC P.O. Box 270834 Littleton, CO 80127 Phone: (720) 545-1690 E-mail: [email protected] Web: www.sahliemploymentlaw.com

The information contained in this electronic message is privileged and confidential and intended only for use by the individuals or entity named above. If the reader of this message is not the intended recipient, or the employee or agent responsible to deliver it to the intended recipient, you are hereby notified that any dissemination, distribution or copying of this communication is strictly prohibited. If you have received this communication in error, please immediately notify us by telephone, or electronic mail. Thank you. From: Marc Salzberg To: stevens, cheryl Subject: Proposed requirement to complete at least 2 credit hours of "Equity, Diversity & Inclusivity" ("EDI") Date: Wednesday, January 27, 2021 3:36:44 PM

I strenuously object to OARC's proposal to require at least 2 EDI credit hours. EDI is racism in the form of alleged-anti-racism. EDI is another horror brought to us by the "virtue"-signalling virus that has perverted the meaning of "virtue". Adopting EDI may make OARC feel virtuous. EDI perverts the meaning of "virtuous", as EDI programs only make its proponents feel good, while devastating the groups that EDI is intended to help. OGRC must not grovel before our suffocating commissars of political correctness. How is current imposition of absurd EDI in America different from past imposition of absurd Marxism-Leninism in the Soviet Union?

-- MARC SALZBERG P O BOX 22597 DENVER CO 80222-0597 tl (303) 934-1750 fx (303) 937-3861c From: Chris Samuelson, Esquire To: stevens, cheryl Subject: Proposed Amendments to Rule 250.2 Date: Friday, March 26, 2021 1:28:29 PM

Ms. Stevens:

Please take Notice that I am opposed to the proposed change to Rule 250.2.

Yours truly,

Christian Samuelson CO Bar No. 41848

The Samuelson Law Firm, PLLC 429 South Cascade Ave. Colorado Springs, CO 80903 Tel: 719-377-8967

*Licensed in Texas and Colorado From: Pete Schoon To: stevens, cheryl Subject: Proposed Amendment to Rule 250.2, et al. Date: Thursday, February 11, 2021 10:43:19 AM

Ms. Stevens, Following are my AMENDED comments to the proposed amendments to Rule 250.2, et al. This modified email corrects an editing error and does not change the substance of my comments submitted yesterday. I do not intend to appear at the April 6th hearing, but ask that you convey these comments to the board members for their consideration. Thank you, Peter E. Schoon, Jr.

The Court proposes to change Colorado Rules of Procedure Rule 250.2(1) for continuing legal education (“CLE”) requirements under an expanded definition of professional responsibility to mandate “At least two credit hours in the area of equity, diversity, and inclusivity”. Provision (3) of Rule 250.6, is to be modified to require accreditation to conform to this requirement. Ordering these changes is a bad idea. What is it about equity, diversity, and inclusivity (“EDI”) that tickles the ear? Is it that lawyers and judges grow up without knowing about equity, or diversity, or inclusivity-- like the rule against perpetuity or the tax code? Is it that the Court has an obligation to teach grown-up professionals how to think and feel about certain privileged and/or protected populations? No, and by any measure requiring this education runs contrary to the role of the courts in educating lawyers and judges. Unlike other mandated CLEs no standard exists or can exist to measure the content of EDI teaching. Except for the legal concept of equity (which does not apply in this context) the terms, individually and collectively, arise from the abstract which can mean whatever a proponent chooses. Of even greater import and unlike other required subjects, no standard exists or can exist to measure EDI compliance with performance standards because the concept elevates feelings over substance. What conduct that is not already addressed in other provisions of the Rules of Professional Conduct or the Code of Judicial Conduct does the Court intend to control? And if there is no objective measure to police EDI, is the requirement anything more than thought control? Of most concern, however, is that the proposed requirement will erode the public’s confidence in the independence of our courts. EDI constitutes one aspect of identity politics and as seen in our recent experience as a country, one party exploits it to pit individuals and [1] groups against each other for political purposes. The Court must steadfastly remain independent and avoid advancing some political agenda under this “feel good” approach. The proposed amendments will do nothing to advance or improve the practice of law or further the high standards set for our lawyers and judges, but adding these requirements can do immeasurable damage.

[1] See Appendix III to “The 1776 Report” published January 2021 by the President’s Advisory 1776 Commission, a commission established by a Republican president. The incoming Democrat president dissolved the Commission by executive order on the day of his inauguration. From: shockley, darryl To: stevens, cheryl Subject: Comment Date: Monday, March 29, 2021 3:24:08 PM

Good afternoon Ms. Stevens,

Following is my comment on the following rule change proposal:

a. Beginning January 1, 2023, the seven credit hours devoted to professional responsibility must include the following:

i. At least two credit hours in the area of equity, diversity, and inclusivity, and

ii. At least five credit hours in the areas of legal ethics or legal professionalism

I am in support of the change converting two of the ethics/professionalism credits to EDI credits. I feel that even at the risk of oversaturating the legal profession with EDI information, it is incredibly important to instate this training while these issues are at the forefront of the country’s consciousness.

Best,

Darryl F. Shockley District Court Judge, Second Judicial District 1437 Bannock St, Courtroom 303 Denver, CO, 80202 (303) 606-2443

From: siever, rebecca To: stevens, cheryl Subject: Comment in support of the rule change requiring an EDI CLE requirement Date: Friday, March 26, 2021 12:17:09 PM

There is no question that we have work to do when it comes to fighting anti-Black racism - as well as all forms of oppression - in the legal profession and systems.

As a white, cisgender, woman, it speaks volumes to me that members of the specialty bar associations are making this recommendation. If the diversity committee is putting this recommendation forward, then I am listening to those voices and hoping that other white people will do the same.

Transformation is needed, and this is a tiny step in the right direction.

I fully support this rule change and hope that it sparks much-needed change in our legal profession and systems.

Sincerely, Becca Siever

Deborah Richardson, Executive Director Mark Silverstein, Legal Director

March 29, 2021

Re: Proposed Changes to Colorado Rules of Civil Procedure and Regulations Governing Mandatory Continuing Legal and Judicial Education for the State of Colorado

Honorable Justices of the Colorado Supreme Court:

The American Civil Liberties Union of Colorado (ACLU) urges you to adopt the proposed changes to Rules 250.1, 250.2, 250.6, 250.9, and 250.10 of the Colorado Rules of Civil Procedure and the Regulations Governing Mandatory Continuing Legal and Judicial Education (CLJE) for the State of Colorado, which would require Colorado lawyers to devote two credit hours of their mandatory professional responsibility CLJE to the area of equity, diversity, and inclusivity.

The ACLU is the state’s oldest and largest civil rights organization, dedicated to fulfilling the promise of equal justice under the law for all Coloradans. As the past year has put into painful focus, that dream remains an elusive one. The legacy of discrimination in our housing, education, healthcare, and criminal punishment systems continues to have lethal effect.

As lawyers, we cannot do the work of rooting out entrenched inequities in our institutions without confronting the indispensable role of law in codifying, legitimizing, and maintaining systems of oppression. We are encouraged by the proposed changes under consideration by this Court as a small step toward acknowledging the legal profession’s obligation to address the injustices it has been complicit in substantiating. Committing ourselves to diversity, equity, and inclusiveness is essential for our profession and for the clients and communities we serve.

As this Court is well aware, every Colorado lawyer takes the following Oath as a requirement of admission to practice law in our state:

I will treat all persons whom I encounter through my practice of law with fairness, courtesy, respect and honesty; I will use my knowledge of the law for the betterment of society and the improvement of the legal system;

303 E. 17th Avenue, Suite 350 • Denver, CO 80203 • 720-402-3137 • FAX 303-777-1773 • [email protected]

I will never reject, from any consideration personal to myself, the cause of the defenseless or oppressed[.]

Requiring Colorado attorneys and judges to seek continuous education on matters of equity, diversity, and inclusion provides a measure of substance to the aspirations of our Oath. On the other hand, without universal attorney literacy and investment in these commitments, we will be unable to “[i]ncreas[e] public understanding of and confidence in the rule of law, the administration of justice and each individual’s legal rights and duties” and to “[p]romot[e] diversity, inclusion, equality, and freedom from discrimination in the delivery of legal services and the administration of justice,” pillars of this Court’s named objectives in regulating the practice of law in the public interest. C.R.C.P. Preamble to Chapters 18 & 20.

Two credit hours of training per three-year CLJE compliance period are certainly not enough for our profession to engage meaningfully with the scope and depth of the harms we continue to perpetuate. While we ask the Court to take this small step, we hope it does so as part of a larger, continuing, and authentic effort.

We urge this Court to meet the moment presented by a year of reckoning with the inequities that plague our institutions and to recognize this opportunity to begin to rebuild the public trust. We urge the Court to adopt the proposed changes.

Sincerely,

Mark Silverstein Legal Director, ACLU of Colorado [email protected]

Page 2 of 2

From: Jack Simpson To: stevens, cheryl Subject: equity, diversity and inclusivity amendment to CLE Date: Thursday, February 4, 2021 2:37:52 PM

I have no problem with adding EDI to the CLE compliance period PROVIDED that it is a choice rather than a Mandatory Requirement. If this becomes mandatory, then why not include a 1 hour requirement on Orwell’s 1984? Is this amendment proposed because lawyers are systemically racist? Obviously I oppose this proposed amendment.

Jack Simpson Sent from Mail for Windows 10

From: singer, michael To: stevens, cheryl Cc: boatright, brian Subject: Attorney CLE professional responsibility proposals Date: Monday, February 1, 2021 10:28:25 AM

Good morning, Ms. Stevens

I attempted to send the following e-mail last week using the hyperlink in your e-mail on this topic, but it appear that Outlook did not deliver it. Thank you again for the opportunity to comment.

Good evening, Ms. Stevens,

I appreciate the opportunity to comment on these proposed new rules. Nevertheless, at considerable risk of offending folks who have proposed the new CLE Professional Responsibility regulations, I strongly object to the language as reflected in the following proposed standards:

(Excerpt from 103.1 (1)(a)(3)):

“Recognition, mitigation and elimination of implicit and explicit bias; • Diversity and inclusion initiatives in the legal profession; and/or; • Equitable access to opportunities and resources by identifying and eliminating barriers that face marginalized groups, by acknowledging and understanding ingrained and systemic structural biases in society, and by committing to address these disparities. Marginalized groups include, but are not limited to groups that are historically underrepresented based on factors of culture, disability, ethnicity, gender and gender identity or expression, geographic location, immigration status, national origin, race, religion, sex, sexual orientation, socioeconomic status, and veteran status.”

First, no one can reasonably object to the goal of recognizing, etc. implicit and explicit bias. I myself have called out attorneys and others who have demonstrated bias in my courtroom. And diversity in the legal profession is an unmitigated good, since it allows our profession to offer a more balanced “voice” and better public service to society.

In addition, barriers faced by “marginalized groups” should be identified and eliminated. However, I find offensive the effort to identify or specify marginalized groups using the above language.

In fact, as recognized (though imperfectly) even by the Founders of our nation, every person is made in the image and likeness of God. In practical effect, the language of the proposal, while doubtless well-intended, reduces human beings to nothing more than items on a laundry list. Essentially, if you happen to fit within one of these categories, you are “marginalized.”

But whether a person is indeed “marginalized” from the standpoint of our legal system may well relate as much to the legal problems they face at any one time as to their “group status.” For example, Public Defenders do not have the privilege of choosing their clients—everyone is well- served by that system, regardless of disability, ethnicity, gender, or any other factor. But an attorney who practices in the area of workers’ or unemployment compensation does get to choose her clients. Thus, it makes sense for her to be mindful of the legal needs of those same folks who might be under-represented before administrative bodies, even though they enjoy very competent representation in criminal court.

So, rather than pigeon-hole human beings as “marginalized” because of some characteristic that may or may not be relevant at any given time in their personal history, may we please simply treat them as being worthy of dignity as fellow human beings? This leads to the other problem with the proposed language, which is more serious.

The modern genesis of the effort to divide society into “marginalized” groups of people began to gather steam with Marxist doctrine in the 19th Century. We see echoes of Marx’s teachings about class warfare in the other language of the proposal: “acknowledging and understanding ingrained and systemic structural biases in society.” But this entire notion of “systemic” bias is a fabricated, unproven assumption. And to call it “ingrained” ignores the very significant progress toward equal treatment under the law that our society has enjoyed, even during my own lifetime.

Where in the Constitution can systemic bias be found? What statutes in Colorado or any other state enshrine “bias” as part of the legal system?

To be sure, bias exists in many corners of our society, tragically. But to call it “systematic” and to require “education” to “acknowledge and understand” it will merely result in training based upon false assumptions concerning our system of government, particularly the legal system. In fact, the educational programs that I have attended which have addressed these “issues” have been remarkably short on facts, and long on opinions. And, “education” based upon these notions is far more effective at promoting division in society, as opposed to unity.

Of course, we must guard ourselves and our communities against bias. But there is no need to bring Marxist-oriented divisiveness to bear in our training of lawyers. In the long run, that is a fool’s errand which will be nothing but counter-productive.

Instead, we can and should encourage professional responsibility by stressing the positive message of the dignity of all human beings, colorblind to what “group” they may occupy at any point in time.

Thank you, again, for seeking our input!

Michael K. Singer 110 North Riverview Rd. Room 205 Sterling, CO 970-522-6565

From: Connie Smith To: stevens, cheryl Subject: proposed CLE/EDI rules Date: Saturday, March 27, 2021 11:50:46 AM Attachments: image001.png image003.png

Cheryl:

I find the proposed rules disturbing. A review of the Regulations shows that after being initially adopted in 1978, the rules weren't changed until 2018 and with this amendment, they will have been changed three times in the past 3 years. Noting the dates and revisions, these repeated changes appear related to the LGBTQ and now the new BLM/woke movement. I don't think our professional licensing requirements should be altered every time the political winds blow. The law is the foundation for our democratic form of government and the profession needs stability and predictability.

The initial intent of requiring continuing education was to maintain quality legal services as attorneys practiced for decades. The focus was on keeping current with changes to the law which were required knowledge for competent representation. The focus in the amendments seem to be the subjectively determined treatment of clients and others. The wording of the Regulations is vague and ambiguous with many terms undefined. If "Professional Responsibility" now includes special consideration be given to every minority or "historically underrepresented" person listed, who is not included on this list in our country of world wide immigrants? Does this mean that white males (presumably the only remaining non-minority class) are somehow to be given lesser respect or representation, unless they can identify some disadvantaged class in their ancestry? These are questions and concerns that should be resolved before the Regulations are approved. Should these Regulations for mandatory education carry over to the Rules for Professional Conduct - a clear intention since they create a new definition for "Professional Responsibility"- unequal application and disparate outcomes are probable, at a minimum adding to court case loads and at worst, unjustly punishing quality legal counsel.

This new regulation attempts to make Colorado attorneys forces of social change by requiring them to sit through "education" of the latest "Professional Responsibility" values to convince them to represent those parties they have neither the legal skill, financial ability nor desire to. Awareness of various client needs based on client attributes can easily be offered under the existing ethics requirements programs, just like attorney wellness programs are now. Some attorneys will find the programs Under these Regulations offensive, making them feel coerced into representing clients they cannot strongly advocate for, creating fear of professional censure and a hostile work environment. This is like the diversity training imposed on the Lakewood cake baker by the Colorado Civil Rights Commission that the US Supreme Court held to be unconstitutional hostile action by a state agency.

The basis of our professional representation has always been to permit clients and attorneys to choose their own contractual representation, with clients firing or not hiring attorneys who didn't adequately represent their interests, charge too much or otherwise didn't resonate with the client's position. All the clients and prospective clients are given this subjective choice. This subjective choice of the client is supported in the CRPC where the attorney client relationship begins when the prospective client thought it did. Is the attorney now to be held to a subjective standard of what a prospective client thinks or feels is unfair treatment by an attorney? Until now, the attorney was similarly afforded the right to take or not take on new cases for any reason, whether it was economic, time constraints, competency or personal conflict that could adversely affect competent advocacy. Will these education classes retain the free association concept for attorneys to choose their clients? Mandatory education based on a race or class based determination of representation is racist or bigoted by definition, as well as offensively presumptive that all Colorado attorneys need this additional education to be sensitive to our changing society's needs. History shows that the legal profession has always requested, sometimes mandating, free services and always fought for the underprivileged.

Therefore, I oppose this revision in the strongest terms. To increase opportunities for specified minorities to become licensed attorneys is a non-coercive way to increase impassioned representation of those classes. Our law schools and bar support for new attorneys already do this, as do the hiring teams at law firms. Let the system work itself into appropriate, productive changes reflecting a free society. At a minimum, these regulations should not be effective for a period of three years so those attorneys who have already met their three year licensing CLE requirements don't have to now take additional classes. In the interim, additional study can be done to determine appropriateness of these new requirements and create quality programming.

Constance D. Smith, J.D., LLM (tax), MBA, AEP®

104 S. Cascade Ave., Suite 205 Colorado Springs, Colorado 80903 And by appointment: 7887 East Belleview Avenue, Suite 1100 Denver, Colorado 80111

Telephone: (719) 900-5577 Email: [email protected] Web: www.caeruslpc.com

From: Smith, Sharena To: stevens, cheryl Subject: Comment to Proposal for Regular Equity, Diversity and Inclusion Training Date: Tuesday, March 16, 2021 11:18:17 PM

Hi Cheryl,

I want to submit my full support regarding the rule change to the continuing legal education requirements that all Colorado lawyers and judges undergo regular training on Equity, Diversity and Inclusion. I hope that this rule is adopted because it will promote public confidence in our judicial system. Please let me know if you have any questions. Thanks.

Sharena Smith Associate [email protected] Connect: vCard

+1 303 607 3760 direct / +1 303 607 3600 fax

Faegre Drinker Biddle & Reath LLP 1144 15th Street, Suite 3400 Denver, Colorado 80202, USA

This message and any attachments are for the sole use of the intended recipient(s) and may contain confidential and/or privileged information. Any unauthorized review, use, disclosure or distribution is prohibited. If you are not the intended recipient, please contact the sender by reply email and destroy all copies of the original message and any attachments.

***************************** This message and any attachments are for the sole use of the intended recipient(s) and may contain confidential and/or privileged information. Any unauthorized review, use, disclosure or distribution is prohibited. If you are not the intended recipient, please contact the sender by reply email and destroy all copies of the original message and any attachments. Thank you. ***************************** From: Rubin, Spencer To: stevens, cheryl Subject: Equity, Diversity, and Inclusion (EDI) CLE Proposed Rule Changes Date: Friday, March 26, 2021 8:16:46 AM

Dear Cheryl,

As the Chair of the Colorado Bar Association Young Lawyers Division, I write to express my support of the proposed CLE rule changes to include an EDI CLE requirement.

I believe that the leaders of the Colorado Hispanic Bar Association said it best as to why these rule changes should be passed:

“Embracing EDI education sends a message to our colleagues who experience racism and bias in their work: We hear you, we know it happens, and we as a bar will not tolerate it. It tells Coloradans that our legal profession and courts are serious about taking steps to effect lasting change. It recognizes the dignity of disenfranchised communities. And it’s a concrete action that will promote cultural competency and public confidence in our legal system.”

Thank you for your consideration, Spencer

Spencer Rubin | Associate Bryan Cave Leighton Paisner, LLP (303) 910-9312

Sent from my iPhone. Please forgive any typos.

This electronic message is from a law firm. It may contain confidential or privileged information. If you received this transmission in error, please reply to the sender to advise of the error and delete this transmission and any attachments.

We may monitor and record electronic communications in accordance with applicable laws and regulations. Where appropriate we may also share certain information you give us with our other offices (including in other countries) and select third parties. For further information (including details of your privacy rights and how to exercise them), see our updated Privacy Notice at www.bclplaw.com. From: Ann Stanton To: stevens, cheryl Subject: Comment on Proposed Change to CLE Rules Date: Monday, March 29, 2021 1:58:03 PM

Dear Ms. Stevens,

I am writing in support of the proposed change to CLE rules to include a 2-credit Equity, Diversity, and Inclusivity (EDI) requirement for attorney education. Adopting this change is a crucial step toward addressing racism, sexism, xenophobia, homophobia, and transphobia in the legal profession.

This rule is important to me personally because I have experienced and witnessed some of the ways diverse attorneys in Colorado are treated differently in the legal profession. As a queer member of the legal community whose gender presentation does not conform to societal norms, I have been misgendered and faced hostility from people who have thought I was in the wrong bathroom in law school and in law firms. Members of the legal profession have mocked my gender expression or pressured me to dress in a more "feminine" manner. I have had to work harder and longer hours to prove my competence to attorneys who assumed that I hadn't earned my academic or professional achievements but instead had simply had them handed to me as a "diversity hire." And I have been left to wonder whether I was overlooked for professional opportunities because of false assumptions about my capabilities or questions about whether I "looked the part." Friends and colleagues who are people of color, women, and/or members of the LGBTQ community have told me that they have experienced similar disparate treatment. And even in its most innocuous forms, often those who treat us as "other" seem unaware that they are behaving in ways that make this profession unwelcoming to those who are not white, not straight, not cisgender, or not male.

The EDI rule is one modest step toward making the legal profession inclusive of all practitioners. Requiring lawyers to engage on EDI issues consistently will help us all recognize the unconscious filters that influence our interactions with colleagues, opposing counsel, clients, and everyone we encounter over the course of our careers. EDI education will help us ensure that attorneys of every background have equal opportunities for professional success, and it will help us actively address the systemic racism, harassment, discrimination, and bias that infect our society and the legal profession.

The opportunity to take CLE courses on EDI topics is not new. The diversity bar associations and many other organizations throughout Colorado routinely provide educational opportunities on these topics. But as other states have learned, without a mandatory EDI CLE requirement, many practitioners who would benefit from this education will overlook it. It is only through exposure and open discourse on these issues that our profession will be better equipped to recognize and address systemic racism, harassment, discrimination, and bias. We owe it to future diverse generations of attorneys and to the Colorado communities we serve to engage on these issues meaningfully and consistently.

The EDI CLE rule is a small modification to attorney education that will profoundly benefit the legal profession and the communities we serve. For these reasons, I strongly support the EDI CLE rule and I respectfully ask the Court to adopt it.

Best regards,

Ann Stanton, Attorney Registration No. 50116 President, Colorado LGBT Bar Association [email protected] Pronouns: she, her, hers From: Karen Steinhauser To: stevens, cheryl Subject: 2 cle credits required for lawyers in the fields of equity, diversity and inclusivity Date: Sunday, March 28, 2021 2:52:05 PM

I am in favor of the suggested amendment, but I feel that only two credits in this area every 3 years is too little. I have been a Colorado lawyer for 40 years. I have been a prosecutor, criminal defense attorney, civil litigator, law professor and judge. The legal system and legal profession are full of systemic racism, sexism and other "isms", as well as conscious and unconscious biases. White privilege is alive and rampant in the legal profession. I have been conducting implicit bias trainings to lawyers and judges for the past 5 years. Our own explicit and implicit biases affect how we deal with jurors, witnesses, clients, colleagues, and staff. No one is immune. I grew up in a family where my father marched with Dr King in Selma and was a civil rights advocate my entire life but I had to recognize that that still doesn't make me immune to my own implicit biases. There is also almost no understanding of language access obligations, economic barriers, and best practices in much of the state. It is important that we recognize that striving for diverse offices and workplaces is only one piece of the overall issue and understand that diversity is not enough without inclusivity. Colorado has adopted revisions in the last two years to 8.4 of our Professional Responsibility code, but when I talk to Colorado lawyers,, most don't even know what the rules say, let alone the revisions. . Attorneys working in all practice areas should show a commitment to being part of the solution. Whether this amendment passes or not I am and will continue to volunteer my services to help educate other lawyers and judges in these areas. Karen Steinhauser.

Sent from my Verizon, Samsung Galaxy smartphone From: Tandler, Jon R. To: stevens, cheryl Cc: Alexander, Rebecca C. Subject: Proposed Diversity Requirement for Colorado CLE Date: Monday, March 29, 2021 9:14:26 AM Attachments: image001.png

Ms. Stevens,

Good morning.

My colleague Rebecca Alexander (copied) asked me to send you information on California’s MCLE requirements, in connection with Colorado’s evaluation of a diversity/elimination of bias educational requirement.

Below in italics is a paste in from the CA Bar website as to the 3 year requirements, including as to elimination of bias.

Thank you and have a good day.

Jon

“With a few exceptions, most attorneys who are actively practicing law in California must take 25 hours of Minimum Continuing Legal Education (MCLE) every three years and file a report with the State Bar. Here is a breakdown of the required credits:

Half of the 25 MCLE hours must be in activities approved for what are called "participatory" MCLE credit. No more than 12.5 hours can be for self-study Other special requirements:

At least four hours of legal ethics At least one hour on competence issues At least one hour in an area called the Recognition and Elimination of Bias in the Legal Profession and Society”

Jon R. Tandler – Member (He/Him) Intellectual Property, Publishing, Information Technology & Business Law

633 Seventeenth Street, Suite 3000, Denver, Colorado 80202 Direct: 303.299.8142 | Main : 303.297.2900 | Fax: 303.298.0940 jtandler @shermanhoward.com | www.shermanhoward.com

From: taubman, daniel To: stevens, cheryl Subject: Proposed changes to CLE requirements Date: Monday, March 29, 2021 1:28:23 PM

Hi Cheryl,

I think it’s fine to require lawyers to obtain two CLE credits in the area of equity, diversity, and inclusion. However, as a long-time member of the Colorado Bar Association’s Ethics Committee, I suggest that such requirement be in addition to the current requirement of seven ethics credits every three years. There are many difficult ethical issues confronting lawyers, and reducing the requirement for regular ethics credits from seven to five would reduce the opportunity for lawyers to learn about those ethical issues.

Take care,

Judge Dan Taubman From: Amy Travin To: stevens, cheryl Subject: DEI CLE Rule Change Date: Monday, March 29, 2021 9:39:06 AM

Hi Ms. Stevens,

My name is Amy Travin (#45762), and I have been licensed to practice law in the State of Colorado since 2013.

I am writing in full support of creating an Equity, Diversity, and Inclusion CLE requirement.

As a white, cisgender woman, it speaks volumes to me that members of the specialty bar associations are making this recommendation. If the diversity council is putting this recommendation forward, then I am listening to those voices and hoping that other white people will do the same.

This requirement will not be a full solution, but it will be another step in creating a more equitable legal system.

We have all been a part of the problem and I fully support Colorado being a part of the solution by joining the growing number of jurisdictions that have adopted this mandatory CLE requirement.

Sincerely, Amy Travin From: Don Trinen To: stevens, cheryl Subject: Fwd: Compelled Attorney Participation in Equity, Diversity, and Inclusivity “Education” Programs Date: Thursday, January 28, 2021 5:48:01 PM

Sent from my iPad

Begin forwarded message:

From: Don Trinen Date: January 28, 2021 at 5:30:22 PM MST To: Office Subject: Compelled Attorney Participation in Equity, Diversity, and Inclusivity “Education” Programs

By promulgating the referenced c.l.e. requirement the Supreme Court is pandering to the idiots purveying the silly notion that straight white males should be ashamed of themselves, and owe the world at large an apology for their existence. And it’s wrong for the Court to use its rulemaking power to impose on Colorado attorneys a regimen of political indoctrination under the guise of continuing legal education. The proposed regulation defining the contents of required programs is gibberish, and the proposed rule it supports should be withdrawn. Don Trinen.

Sent from my iPad From: cory tuck To: stevens, cheryl Subject: Proposed change to Rule 250.2 Date: Friday, March 26, 2021 2:55:57 PM

Chief Justice Boatright,

I am writing to express my opposition to the amendment that would convert two of the required seven ethics CLE credits to courses on “equity, diversity, and inclusivity.”

I oppose the idea that I or any other attorney must attend ideology re-education training in order to maintain their law license in the state of Colorado and I respectfully request that you and the associate Justices reject this change.

If the Colorado Supreme Court is interested in improving ethics failures among Colorado attorneys I recommend we should focus on substance abuse prevention, mental health resources and law firm management training. I am confident that most ethics failures among attorneys could be linked to substance issues, mental health issues, bad law firm management practices and or financial issues.

Cory Tuck

Attorney#39171 From: Wayne Vaden - City Park Law To: stevens, cheryl Subject: Equity, Diversity and Inclusivity CLE Hours Date: Monday, March 29, 2021 1:44:06 PM

Ms. Stevens,

The older and wiser I become the more the following statement holds true:

While American history examines the legal justification of slavery and oppression, Black history examines the spirit of people who overcame slavery and oppression.

This applies to Native Americans, Mexicans, Asians, Italians, Irish and all other people oppressed in America. It is very important that lawyers and judges learn the difference.

Thanks for allowing my voice.

Wayne E. Vaden, Esq. Managing Attorney CITY PARK LAW GROUP, LLC 12075 E. 45th Avenue, Suite 100-B (Citywide Banks Building - 45th & Peoria) DENVER CO 80239 (303) 377-2933 Office (303) 377-2934 Facsimile [email protected] www.cityparklawgroup.com From: Veronique Van Gheem To: stevens, cheryl Subject: EDI CLE Credit Comment Date: Thursday, March 25, 2021 11:10:56 PM

Hi my name is Veronique Van Gheem and I am a member of the Colorado Women’s bar association. I am proud to be supporting the equity diversity and inclusivity rule change for Continuing Legal Education in Colorado because:

1. A growing number of states have already recognized the need for training our attorneys to be knowledgeable on EDI and cultural competence issues 2. Colorado attorneys face disparate treatment and we need to guarantee a minimum level of education on equity. 3. Engaging practitioners on EDI issues will move us forward as a profession for the communities we serve and help all attorneys foster better relationships with our staff, our clients, our colleagues, opposing counsel, and members of the public. 4. Issues of equity don’t resolve without the education and open discourse that a mandatory CLE requirement creates – not as a short-term intervention, but as a consistent part of attorney education enhancing cultural competency and empathy in working with people from every background. 5. Consistent and transparent EDI education works by helping everyone recognize the unconscious filters and influence that reflects our socialization – and this data helps reverse the ill effects of implicit bias by exposing it and prompting us to act on it 6. EDI education focuses on ensuring equal opportunity and truly including people of every background in our profession. 7. This is the way to put action to the anti-racist stance the Colorado Judicial Department and bar community have taken in pledging to make our profession more equitable, for our judiciary to reflect all parts of our society, and to actively address issues of systematic racism and discrimination. 8. By embracing EDI education our Supreme Court and our profession can send a message to our colleagues who experience racism, sexism, and other forms of bias: We hear you, we know it happens, and as a profession we will not tolerate it. It ensures the public knows that our profession is serious about effecting lasting change and recognizes the dignity of underrepresented communities.

Thanks,

Veronique Van Gheem, Esq. (720) 402-2930 From: [email protected] To: stevens, cheryl Subject: Comment for Rules 250.1, 250.2, 250.6, 250.9 and 250.10 Date: Monday, March 29, 2021 1:20:57 PM

The following is my comment to the proposed change to Rule 250.2. CLE Requirements: I am in favor to the suggested amendment because a positive change in these areas is needed. However, in order for there to be real change and to provide access to these courses, you must make the credit hours available to all. For instance, attorneys in rural communities (and/or other areas and demographics) might choose CLE classes based on location and/or cost. It would be unfair to require two credit hours in the area of equity, diversity and inclusivity without making this requirement free to all. Additionally, with the increased use of zoom and WebEx due to COVID, many programs are being offered at no to very little cost through these formats. If the proposed rule amendment is going to be adopted, there should also be a requirement for the bar association to provide this CLE at no cost to attorneys through an optional video participation to ensure availability for all.

Sincerely,

Teresa M. Wilkins, Esq. Law Firm of Teresa Wilkins, LLC 9800 Mt. Pyramid Court, Suite 400 Englewood, CO 80112 Main Phone: 303-414-4798 Direct Phone: 303-791-9545 Facsimile: 303-835-4583 Website: www.twilkinsllc.com

From: Williams, Mark W. To: stevens, cheryl Subject: Support of Changes to CLE Requirements Date: Sunday, March 28, 2021 5:18:48 PM

Dear Ms. Stevens:

I am a member of the Colorado Bar: #15304. I fully support the proposed rule change below and ask that the Supreme Court make the change. Now more than ever we need to include all of our diverse colleagues – to better our profession and to better help our clients. Education is important to achieve our diversity goals. I urge the Court to adopt this rule. Thank you.

DEI CLE 2021 Rule Change:

"Rule 250.2. CLE Requirements (1) CLE Credit Requirement. Every registered lawyer and every judge must complete 45 credit hours of continuing legal education during each applicable CLE compliance period as provided in these rules. The 45 credit hours must include at least seven credit hours devoted to professional responsibility. a. Beginning January 1, 2023, the seven credit hours devoted to professional responsibility must include the following: i. At least two credit hours in the area of equity, diversity, and inclusivity, and ii. At least five credit hours in the areas of legal ethics or legal professionalism. ... 3. Equity, diversity, and inclusivity (EDI) comprise an activity or portion within an activity that addresses standards of conduct in the legal profession related to the recognition, mitigation, and elimination of bias; equal access to justice; and service of diverse populations. Courses should educate lawyers as to the aspirations that surpass ordinary expectations to further promote the ideals and goals of professionalism, including but not limited to: • Recognition, mitigation, and elimination of implicit and explicit bias; • Diversity and inclusion initiatives in the legal profession; and/or • Equitable access to opportunities and resources by identifying and eliminating barriers that face marginalized groups, by acknowledging and understanding ingrained and systemic structural biases in society, and by committing to address these disparities. Marginalized groups include, but are not limited to, groups that are historically underrepresented based on factors of culture, disability, ethnicity, gender and gender identity or expression, geographic location, immigration status, national origin, race, religion, sex, sexual orientation, socioeconomic status, and veteran status." Hope you can join us! NOTICE OF PUBLIC HEARING AND REQUEST FOR COMMENTS HEARING TO BE HELD TUESDAY, APRIL 6, 2021 AT 3:30 P.M. DEADLINE FOR COMMENTS MONDAY, MARCH 29, 2021 AT 4 P.M. The Colorado Supreme Court will conduct a hearing on the proposed rules and regulations listed below on Tuesday, April 6, 2021 at 3:30 p.m. via WebEx. Written comments on the proposed changes should be sent to the Clerk of the Colorado Supreme Court, Cheryl Stevens at 2 E. 14th Avenue, Denver, Colorado 80203 or emailed to [email protected]. Persons wishing to speak at the hearing should notify Ms. Stevens by email [email protected] or by telephone 720-625- 5150 All comments and speaking requests must be received no later than Monday, March 29, 2021 at 4 p.m. Colorado Rules of Procedure Regarding Attorney Discipline and Disability Proceedings, Colorado Attorneys’ Fund for Client Protection, and Mandatory Continuing Legal Education and Judicial Education Rules 250.1, 250.2, 250.6, 250.9 and 250.10 Regulations Governing Mandatory Continuing Legal and Judicial Education for the State of Colorado

Mark W. Williams - Attorney

633 Seventeenth Street, Suite 3000, Denver, Colorado 80202 Direct: 303.299.8211 | Facsimile: 303.298.0940 [email protected] | www.shermanhoward.com | Mark’s Biography

CONFIDENTIALITY NOTICE

From: Wilson, David B. To: stevens, cheryl Subject: Comment on proposed additional CLE requirement Date: Monday, March 29, 2021 10:27:42 AM Attachments: image001.png

Dear Ms. Stevens:

As a member of the Colorado Bar since 1986, a member of Sherman & Howard LLC, and Vice Chair of a CBA committee, I offer the following comments concerning the proposed requirement for CLE on the topic of “equity, diversity, and inclusion”:

1. To begin with, all members of the Colorado Bar should treat other people with dignity and respect regardless of individual characteristics or beliefs. This is trite, and we don’t need additional CLE classes to drive home this point.

2. Racism in Denver, including the subtle racism of low expectations, is a continuing problem. If you don’t believe me, please read Adrian Miller’s though-provoking editorial: https://denver.streetsblog.org/2021/03/15/commentary-walking-while-black-in-the-mile- high-city/.

3. As members of the Colorado Bar, we should, for example, re-double our efforts to convince members of communities who historically have not considered law as a career to consider law as a career. This requires people from outside of those communities to build bridges into those communities. This will take time, money and effort. It also means that lawyers should develop relationships with and help people who look and appear differently—not to satisfy a quota or to enhance the lawyer’s business—but because those people (like all people) have dignity and worth. This also does not require additional CLE classes.

4. Historically, “equity” referred to the subject matter, procedures, and quiver of remedies that under the English system were only available in the Chancery Courts. Equity, which was said to be measured by the “length of the Chancellor’s foot,” sometimes resulted in arbitrary outcomes that were contrary to the notions of equal treatment under the law that we cherish.

5. Colorado law does not promise “equity,” but equal treatment and equal opportunity. The concept of “equity,” as used in “woke” 21st century America, is foreign to the rule of law. Rather, it is a buzzword that has been adopted by the political left to attempt to foster particular outcomes that the left deems politically expedient. We do not need CLE classes in “equity,” as this term has been re-defined.

6. The concepts of “diversity and inclusion” sound nice, but (at the very least) have become code words for overt or subtle anti-religious bigotry and discrimination in violation of Colorado law and in derogation of rights under the U.S. and Colorado Constitutions. We do not need additional CLE classes to promote, much less institutionalize, this bigotry and discrimination.

7. In sum, although undoubtedly well-intentioned, the proposal to require additional CLE on the topic of “equity, diversity, and inclusion” should not be adopted. Instead, may I suggest that the Colorado Supreme Court devote a portion of annual dues to promote legal education in disadvantaged communities? Coupled with the CBA’s ongoing diversity initiatives, we can actually make a difference in communities, rather than indoctrinate lawyers to promote a particular political or ideological perspective.

Sincerely, David B. Wilson – Member

633 Seventeenth Street, Suite 3000, Denver, Colorado 80202 Direct: 303.299.8382 | Fax: 303.298.0940 [email protected] | www.shermanhoward.com

CONFIDENTIALITY NOTICE

From: Dart Winkler To: stevens, cheryl Subject: Comments on proposed Rule change Date: Saturday, March 27, 2021 9:19:06 PM

I am writing in support of the proposed rule change to Rule 250.2 regarding CLE requirements, and including that at least two credit hours in the area of equity, diversity and inclusivity be included in the requirements. As representatives for our citizens, it is incumbent upon us to ensure that we are kept apprised of these very important issues, and the impact that they have on others. I will unfortunately not be able to attend the hearing to be held on Tuesday, April 6, 2021.

This is my first time weighing in on such a rule change, so I am not certain that I am doing this correctly by emailing you, but that is what I understood I was supposed to do for this. If I am wrong, I am sorry to bother you.

Thank you,

Dart

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From: [email protected] To: stevens, cheryl Subject: Proposed EDI mandate Date: Friday, March 26, 2021 12:12:35 PM

I oppose the proposed changes to Rule 250.2. I’m also a member of the California Bar, which has had similar requirements in place for several years. The California courses associated with this subject matter are uniformly devoid of genuine legal content. No cases are cited or discussed. Instead, presentations have devolved into mere litanies of unsubstantiated accusations, which, even if true, do not point to any useful information. I predict that the same will happen here; scholarly standards will evaporate and mandatory attendance will be viewed as an unpleasant chore rather than an opportunity to learn, discuss, and dispute.

Very truly yours, Gary Witt #09249 From: Danae Woody To: stevens, cheryl Subject: Public Comment in Support of Proposed Rule Change to Rule 250.2 Date: Monday, March 29, 2021 2:50:17 PM

Ms. Stevens,

Please accept my written comments in support of the Proposed Change to Rule 250.2:

Our state has the unique opportunity to set an expectation regarding each attorney’s personal responsibility to educate themselves on matters of implicit and explicit bias and various cultural competencies, and therefore make meaningful change toward a safer and more inclusive profession. Only by bringing everyone into the “classroom,” can we hope to reach the hearts and minds of those who may not even be aware there is a need for these conversations. The profession will better serve the public — individuals who come to us from all backgrounds — when we all consistently work to understand these important issues. It can no longer simply be up to a few to make the difference. Without a requirement such as the one proposed, concerned, like-minded Colorado attorneys will likely continue occupying distinct echo chambers without real ability to effect change on a larger scale. Even one mind changed through education makes a world of difference.

-- Danaé D. Woody Pronouns: She/Her/Hers Founding Partner, Attorney at Law Woody Law Firm, LLC 140 East 19th Avenue, Suite 600 Denver, CO 80203 Phone: 303-968-1711

Update Regarding Coronavirus (COVID-19): Woody Law Firm, LLC continues to monitor the dynamic situation surrounding the outbreak of Coronavirus (COVID-19). Upon the recommendations from government officials, each of our team members will be working remotely for the time being for the safety of our staff, clients, and community. We continue to remain open and will still provide our clients with the same high level of representation they have come to expect.

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From: Wozniak, Diane E. To: stevens, cheryl Subject: Rule 250.2 CLE Requirements / Amendment comments Date: Sunday, March 28, 2021 12:21:08 PM Attachments: image001.png

Dear Ms. Stevens –

I am in favor of the suggested amendment, but I feel that only one or two credits in this area every 3 years is too little. It should require at least one credit per year, if not more. The legal system and legal profession are full of systemic racism and heavily contribute to the criminalization of poverty and mass incarceration. One credit per year is the bare minimum.

Thank you, Diane

Diane Wozniak - Attorney

633 Seventeenth Street, Suite 3000, Denver, Colorado 80202 Work: 303.299.8128 | Mobile: 303-547-5083 | Fax: 303.298.0940 [email protected] | www.shermanhoward.com

CONFIDENTIALITY NOTICE

From: Anthony Zarsky To: stevens, cheryl Subject: EDI CLE Rule Comment Date: Monday, March 29, 2021 2:36:14 PM

As a practitioner in the family law community, it is unfortunate that I know all too well the reasons why equity, diversity, and inclusion issues need to be addressed by all practitioners. I have countless friends in the LGBTQ+ community who have been marginalized at all levels of society, including within our profession. While I know there are plenty of voices that understand and uplift people like myself in the profession, those aren't the voices that create hostilities in practice. This rule can change that.

I do believe it is critical that attorneys practicing in this state acknowledge their biases and are able to work towards a more equitable legal system overall. I do not believe most who often marginalize others based on differences truly dislike other people as much as they do not understand them. Having these open conversations will help teach empathy with a goal of equity in our system, especially conversations with those who need to hear it most.

I am strongly in favor of the EDI CLE rule and I hope the Supreme Court takes this opportunity to make our profession more inclusive. Failure to do so will only prolong a system that tolerates racism, sexism, homophobia, and transphobia within its ranks.

Anthony J. Zarsky, Esq. Pronouns: He/Him/His Associate Attorney Woody Law Firm, LLC 140 E. 19th Avenue, Suite 600 Denver, CO 80203 Phone: 303-968-1711