There is a controversy in Oregon over a proposed change in the ethics rule from the Oregon Medical Board. At issue is the use of “microaggressions” to discipline doctors and to make reporting such transgressions mandatory for all doctors. It seems before you can give stitches, you have to join snitches under one of the most ambiguous categories of prescribed speech.
I have been a critic of microaggression rules on college campuses and discuss this trend in my book out this week, The Indispensable Right: Free Speech in an Age of Rage. In past debates over this category of offensive speech, I have objected that it is hopelessly vague and highly controversial.
That ambiguity creates a threat to free speech through a chilling effect on speakers who are unsure of what will be considered microaggressive. Terms ranging from “melting pot” to phrases like “pulling oneself up by your own bootstraps” have been declared racist. Some of those have been identified by Columbia professor Derald Wing Sue, cited by Oregon’s state government as a “microaggressions expert.”
Professor Sue considers statements like “Everyone can succeed if they just work hard enough!” as an example of a microaggression. Sue’s work on “microassaults,” “microinsults,” and “microinvalidations” are being effectively adopted by the Board.
Notably, when I have objected to this category, advocates have insisted that they are merely voluntary and instructive, not mandatory. I have long argued that they are used in a mandatory fashion by triggering investigations of professors and would inevitably be made mandatory.
That appears to be happening in Oregon. A couple of conservative sites have covered the controversy.
Under the new ethics rule from the Oregon Medical Board, “unprofessional conduct” (over which a doctor can lose his or her license) will include microaggressions:
“In the practice of medicine, podiatry, or acupuncture, discrimination through unfair treatment characterized by implicit and explicit bias, including microaggressions, or indirect or subtle behaviors that reflect negative attitudes or beliefs about a non-majority group.”
The new section “J” ranks microaggressions with fraud, sexual assault, and ordering unnecessary or harmful surgeries.
Oregon Medical Board states that
“The proposed rule amendments update the definition of “unprofessional conduct” to include discrimination in the practice of medicine, podiatry, and acupuncture, which would make discrimination a ground for discipline. The proposed rule may favorably impact racial equity by making discrimination a ground for discipline for OMB licensees. It is not known how the other proposed rule amendments will impact racial equity in the state.”
The incorporation of microaggressions under the new ethic rules is precisely what some of us have been warning about for years. As is often the case, activists begin by insisting that language monitoring is purely instructional and optional before codifying those rules in mandatory terms.
We have seen the same trajectory in other areas like land acknowledgments where the line between the optimal and the mandatory is hard to discern. As discussed in my book:
“What began as voluntary statements have become either expressly or implicitly mandatory…George Brown College in Toronto requires faculty and students alike to agree to a land acknowledgment statement to even gain access to virtual classrooms. While such statements are portrayed as optional, they are often enforced as compulsory. The University of Washington encouraged faculty to add a prewritten ‘Indigenous land acknowledgment’ statement to their syllabi. The recommended statement states that ‘The University of Washington acknowledges the Coast Salish peoples of this land, the land which touches the shared waters of all tribes and bands within the Suquamish, Tulalip and Muckleshoot nations.’
Computer science professor Stuart Reges decided to write his own statement. He declared…’I acknowledge that by the labor theory of property the Coast Salish people can claim historical ownership of almost none of the land currently occupied by the University of Washington.’ … He was told that, while the university statement is optional, his statement was unacceptable because it questioned the indigenous land claim of the Coast Salish people. Reges’s dissenting statement was removed, and the university emailed his students offering an apology for their professor’s ‘offensive’ opinion and advising them on ‘three ways students could file complaints against’ him.”
Federal courts have ruled in favor of academics in disputes over microaggression rules, but the movement is expanding beyond campuses, as shown in Oregon.
I have no objection to the sharing of views of others on how certain phrases are received. I have dropped certain terms or phrases even though I did not see why a term or phrase is insulting. When others have a reasoned basis for objecting to language, I err on the side of caution to avoid making others uncomfortable. Yet, this category of speech was created to encompass a broad, ill-defined range of speech that falls below outright discriminatory or harassing language. That makes for a dangerously vague standard for a mandatory reporting rule.
The free speech concern is how such microaggressive terms can be used to curtail or punish speech, including supporting complaints for formal investigations. Disciplinary actions often seem based on how language is received rather than intended. Schools need to be clear as to whether microaggressive language can be the basis for bias complaints and actions.
Consider again the language from the Oregon Medical Board. It would encompass any “indirect or subtle behaviors that reflect negative attitudes or beliefs about a non-majority group.” The standard is heavily laden with subjectivity. (Notably, it does not include making such comments about any majority group, presumably whites or males).
The board then amplifies the standard by making it mandatory for other doctors to report colleagues. Under the proposed ruled,
“a licensee must report within 10 business days to the Board any information that appears to show that a licensee is or may be medically incompetent or is or may be guilty of unprofessional or dishonorable conduct or is or may be a licensee with a physical incapacity.”
So doctors will have to police any “indirect or subtle behaviors” that “reflect negative attitudes or beliefs” . . . or face discipline themselves.
The hippocratic oath is based on the pledge that doctors will “first do no harm.” Unfortunately, that pledge does not appear to apply to free speech in Oregon. Rather than merely publish opinions on phrases or practices that can be seen as microaggressive, the Oregon Medical Board is about to impose an ambiguous speech regulation that is likely viewed by some doctors as turning them into social-warrior snitches.
The Oregon Medical Board should remove the microaggressive provision. Sometimes the best treatment is the least intrusive.
This column appeared on Fox.com
This rule will have a disparate impact on whites and on those from cultures that are loud. It imposes a supremacist culture of British upper class stoicism. Disparate impact is evidence of discrimination according to Texas Department of Housing and Community Affairs v. The Inclusive Communities Project, Inc. (2015).
Ahem…”proscribed”, not “prescribed” (1st para.)…unless the pun was intended!
This law will create a new industry of suing healthcare workers, clinics, and hospitals for alleged microaggressions. If carried forward to a foreseeable conclusion, watch for an exodus of healthcare workers from Oregon.
This Law is clearly unconstitutional and Oregon should be sued and fought all the way up to the Supreme Court of the US.
Correction. Rule not law.
Micro aggression = a gun only the democrats are allowed to pull the trigger with…
Macro aggressive = the nazi democrats using millions of tax $ to go after their political opponents…
what a load of prejudiced crap
yea there’s a reason your anonymous… Such stupidity deserves recognition… you should claim it.
Professor Turley: you’re regularly writing on free speech – along with your book.
Question: whether legislation that allows government to persecute doctors for “microgressions” or shutting down other free speech, as you’re a lifelong Democrat…
…when will you notice that this occurs almost exclusively in jurisdictions and entities that are controlled and ran by your party and your politicians: Democrats?
When will your self-identification with the Democrat party cease preventing you from realizing and acknowledging the link between your political party of choice, the Democrats, and the attack on free speech? And the attack on rule of law, BTW – ultimately, they both come from the same totalitarian mindset.
One has to wonder if the ocean breezes of the coastal States some how infect the minds of their inhabitants? Could it be that the legalization of marihuana plays part in the social disfunction that has overtaken them? Oregon is getting stranger by the minute. Will they really sic the thought police on doctors for not enjoining the group think of the WOKE? One thing is for certain, the crazies have taken over governance at multiple levels and
to escape this kind of irrational tyranny, the country may have to partition itself so the rational citizens can find refuge from the irrational. God is the divine epitome of reason. When belief in Him is abandoned mankind becomes a rudderless, senseless, and toxic to itself in every way. God Can Save us. However He has said, His Spirit will not strive with man forever.
A holiday for 12% of the population?
_________________________________________
“That dudn’t make any sense!”
– George W. Bush
The leader of the free world shouldn’t even be leading the conga line at a nursing home.
Juneteenth!
Remember To Thank A Republican 🇺🇸
13th Amendment – Abolished slavery
100% of Republicans
23% of Democrats
15th Amendment – Right to vote for all
100% of Republicans
0% of Democrats
14th Amendment – Citizenship for freed slaves
94% of Republicans
Before the political pole shift.
Not a thing