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Florida Supreme Court Reaffirms Rejection of Identity-Based Quotas for Continuing Legal Education Programs

Start at Re: Amendment to the Rule Regulating Florida Bar 6-10.3Florida Supreme Court has ruled that the case is a miscarriage of justice.

The Court modified the Rules Regulating the Florida Bar earlier this year to prohibit continuing legal education credits for any course sponsored by The Florida Bar. This includes any section that employs quotas based upon race, gender, religion or disability in the selection faculty and participants. While the Court’s amendment went into effect immediately, it invited interested parties to comment.

We have reviewed these comments and decided to make two minor changes to the rule amendment. We postponed the date for the rule amendment’s effective until January 1, 2022 to be respectful of Florida Bar members, who had planned 2021 CLE events based on the status quo. Second, we amend the text to clarify that CLE credit will be unavailable for courses with any sponsor that uses quotas covered by the rule, whether course approval is sought by the sponsor or by an individual bar member….

The Court amended rule 6-10.3 in response to a “Diversity & Inclusion CLE Speaker Panel Policy” that the Business Law Section of the Florida Bar adopted on September 1, 2020. We have included the policy as an Appendix B to this opinion for your convenience.

The policy requires that CLE panel panels include a minimum of three “diverse members,” depending on their size. On its face, diversity refers to a person’s participation in groups based upon their race, ethnicity and gender. Although the Business Law Section has removed this policy as a result of our rule amendment, it was not a final decision. We are informed by the Section that if the Court revokes the rule amendment, then the Section will reinstate the policy.

This policy was based on an American Bar Association policy. After finding out that ABA entities were “failing”, the ABA decided to adopt its own policy.[ed]adhere to the organization’s “aspirational” policy that all CLE panels should include “diverse practitioners of our profession”. To describe women, racial, ethnic minorities and people with disabilities in CLE panels, the ABA refers to “diverse persons of our profession”.

The Business Law Section described its policy when it adopted the rule amending as “imposing quotas”. It works: the label suits. As a matter of common usage, “quota” also includes “[a]A minimum number of persons or percentage that is required to meet a targeted or specific goal. Section’s policy mandates a minimum number of “diverse” CLE panelists. This policy sets a maximum number of non-diverse panelists.

In our decision, we also stated that:[q]Uotas that are based on the characteristics in this policy violate American basic principles of nondiscrimination. People are treated differently by the policy based upon their participation in “race ethnicity, gender gender, sexual orientation and gender identity,” disability or multiculturalism. Our laws consider it presumptively wrong to discriminate on these grounds—especially when government does the discriminating, but also in many contexts involving discrimination by private entities.

These quotas are not harmful, we reject it. The American idea of treating individuals as individual people, and not as part of a group is violated by quotas. The quota system is based upon and encourages stereotypes. Quotes create division. It would be sad if America became a quota-ridden country, where each identified minority is assigned proportional representation at every walk of life.

We came to two main conclusions in addressing the policy of the Business Law Section. First, it was wrong for The Florida Bar to ignore discrimination. Second, any regulatory response must address discriminatory quotas used by any CLE course sponsors, regardless of affiliation. The policies of private companies are not covered by this Court’s authority, which is right. But we do have the authority—and, we think, a duty—to disassociate The Florida Bar’s CLE infrastructure from entities with discriminatory quota policies like the one here.

This Court stands firm behind the principle of equality and nondiscrimination. We support pro-active measures that ensure all individuals have equal opportunities in CLE and the wider legal profession. Inclusivity is a laudable goal, and it can be achieved without resorting to discriminatory quotas….

The Court received over forty comments in its response to the rule change. There were a few exceptions. But we respectfully disagree with the opponents’ principal objections, and we will explain why….

How the policy may cause harm. Many people objected to the labeling of both the Business Law Section and the ABA policies as “quota policies”. Commenters argue that labels are irrelevant and the policies don’t harm any one. They were meant to encompass rather than exclude. It is clear that the policy supporters are genuinely seeing things in this manner.

We have already explained the reasons why it makes sense to refer to these policies as imposing “quotas”. Our view is that quotas are harmful to individuals as well as society. Quotes do not recognize each individual’s uniqueness or innate worth, encourage stereotyping and create division.

This is something we note. On their facesThe Business Law Section policies and the ABA policies do not attempt to link a person’s “diversity” to the content or education of the CLE programs. According to the ABA, it follows this approach to its diversity requirements: Program planners request potential speakers to answer the question “Do you consider yourself to be diverse?” The person’s answers to the question are used for compliance purposes with the diversity policy. This method is akin to stereotyping and naked balancing. It does not allow for a holistic assessment of the unique perspectives that individuals might offer to a panel.

The importance of the ABA’s CLE programmes. Many people commented on the ABA’s CLE programs and praised their value. Others lamented the impact of the rule amendment. Our rule amendment doesn’t prohibit anyone from participating in an ABA CLE course or from collaborating with the ABA. However, we recognize the concerns expressed by commenters who wish to earn CLE credits for attendance at ABA-sponsored or cosponsored programs. We sincerely hope that the ABA will solve this problem by abandoning its quota policy and pursuing its diversity-related goals without resorting to discriminatory quotas—something that institutions throughout our society have shown themselves able to do….

Justice Labarga dissented:

… I am persuaded that the [Business Law Sction]Policy isn’t discriminatory, because the intention is to be inclusive, illustrated by the broad definition of diversity in the policy. Inclusion, Do not miss, CLE panel participants… [In the words of]The ABA, who argued about its policy (after whom the Business Law Section policy was modeled),:

The ABA’s approach to diversity and inclusion is not a “quota” or a preference system. This would mean that it could fail in accordance with United States Supreme Court equal protection case law. The essence of the Court’s cases is that quotas cannot be used to infringe on legally protected interests—and the Diversity & Inclusion Policy infringes on no one’s protected interests.

No reserved or “set aside” seats are available for any group of people. The ABA can grant waivers for individual programs in the unlikely event that a diversity-minded panelist cannot be found. More typically, however, an individual who brings diversity has been identified–and then added to the CLE panel. No panel members are displaced or replaced under the Diversity & Inclusion Policy’s aegis. This policy is not intended to protect the interests of anyone.

Florida Bar’s Business Law Section explained the policy.

A program with two to three panelists is sufficient for diversity consideration. Diversity consideration is required when there are at least three panelists.[s] into play. Even then, if it is impossible to meet the guidelines for programs that have three speakers or more, the Section can waive or modify the CLE Diversity Policy. This policy does not apply to all programs and allows for exceptions, appeals or waivers. For all these reasons, the CLE Diversity Policy is appropriate, narrowly tailored, and served a compelling interest….