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Microaggression madness in Oregon could cost doctors their license

OpinionMicroaggression madness in Oregon could cost doctors their license

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Editor’s note: The following column first appeared on the author’s blog, Res ipsa loquitur – The thing itself speaks.

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 Suecited by Oregon’s state government as a “microaggressions expert.”

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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. 

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.

The incorporation of microaggressions under the new ethics 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.

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 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.

The 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 ethics 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.

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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. It was enough that others find certain language to be insulting and I do not want to make them feel 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 rule, 

“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.

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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.

CLICK HERE TO READ MORE FROM JONATHAN TURLEY

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