Race Discrimination

Florida Supreme Court Rejects Race/Sex/Etc. Quotas in Continuing Legal Education Programs

[UPDATE: This might make American Bar Association CLE programs, for which the ABA requires such quotas, ineligible for Florida CLE credit.]

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From the Florida Supreme Court today, an order signed by Chief Justice Canady and Justices Polston, Lawson, Muñiz, Couriel & Grosshans,

The Business Law Section of The Florida Bar recently adopted a policy regulating the composition of faculty at section-sponsored continuing legal education programs. Subject to certain exceptions, the policy imposes quotas requiring a minimum number of "diverse" faculty, depending on the number of faculty teaching the course.

The policy defines diversity in terms of membership in "groups based upon race, ethnicity, gender, sexual orientation, gender identity, disability, and multiculturalism." The stated goals of the policy are "eliminating bias, increasing diversity and implementing tactics aimed at recruiting and retaining diverse attorneys."

The Court recognizes and is grateful for the Bar sections' important contributions to the legal profession in our state. And the Court understands the objectives underlying the policy at issue here. Nonetheless, certain means are out of bounds. Quotas based on characteristics like the ones in this policy are antithetical to basic American principles of nondiscrimination. Cf. Grutter v. Bollinger, 539 U.S. 306, 334 (2003) ("To be narrowly tailored, a race-conscious admissions program cannot use a quota system …."); Regents of University of Cal. v. Bakke, 438 U.S. 265, 307 (1978) (numerical goal or quota "must be rejected" as "facially invalid"). It is essential that The Florida Bar withhold its approval from continuing legal education programs that are tainted by such discrimination.

Accordingly, rule 6-10.3(d) of the Rules Regulating the Florida Bar, which governs course approval for continuing legal education, is amended [to add the text,] {"The board of legal specialization and education may not approve any course submitted by a sponsor, including a section of The Florida Bar, that uses quotas based on race, ethnicity, gender, religion, national origin, disability, or sexual orientation in the selection of course faculty or participants."} …

Justice Lawson, who joined the majority opinion, adds this:

I write separately to further express my support for what I view as the well-intended motivation underlying the decision of The Florida Bar's Business Law Section to adopt a policy aimed at meaningfully broadening participation in the instructor pool for its educational offerings.

At this Court's direction, both the Bar and the State Court System have for many years worked diligently to assure a system of justice that is fair for all and that treats all individuals as equal under the law. This Court is steadfast in its firm commitment to these ideals. I believe that these ideals are best advanced when individuals with very different backgrounds and experiences work together. This is because our experiential differences often result in starkly different modes of thought and perception—including deeply divided perceptions surrounding concepts as facially straightforward as "fairness" and "justice."

It is when those who perceive and think differently come together in an environment of mutual respect and genuine concern for the well-being of others that we can best gain the understanding necessary to fully advance the ideals underpinning our judicial system. It is essential that we continue this work, and I am grateful to the Bar and its sections for their continued pursuit of these core ideals that are central to further advancing the cause of freedom for all, secured for all through the rule of law.

Justice Labarga dissents:

Because I do not believe that the enactment of a rule specifically addressing this issue is necessary, I dissent. I believe that a simple letter directed to the Business Law Section, communicating that such action may be in violation of United States Supreme Court precedent, would have sufficed. See e.g., Grutter v. Bollinger, 539 U.S. 306, 334 (2003); Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 307 (1978).

UPDATE: Josh Blackman points out that the American Bar Association seems to mandate quotas in its CLE programs:

The ABA expects all CLE programs sponsored or co-sponsored by the ABA to meet the aspirations of Goal III by having the faculty include members of diverse groups as defined by Goal III (race, ethnicity, gender, sexual orientation, gender identity, and disability). This policy applies to individual CLE programs whose faculty consists of three or more panel participants, including the moderator. Individual programs with faculty of three or four panel participants, including the moderator, will require at least 1 diverse member; individual programs with faculty of five to eight panel participants, including the moderator, will require at least 2 diverse members; and individual programs with faculty of nine or more panel participants, including the moderator, will require at least 3 diverse members. The ABA will not sponsor, co-sponsor, or seek CLE accreditation for any program failing to comply with this policy unless an exception or appeal is granted. The ABA implementation date for the new Diversity & Inclusion CLE Policy shall be March 1, 2017.

A subcommittee of SCOCLE [Standing Committee on Continuing Legal Education] will be created which will include representatives from SOC [Section Officers Conference]. If for some rare or extraordinary reason a panel does not comply and not be granted an exception for one time only on behalf of that panel the entity can opt to pay a fine of $2500 to the diversity center rather than lose CLE credit for that panel. This exception can only be granted one time.

I've e-mailed the ABA a query about this, and will post an update if I get further information from them.

NEXT: Today in Supreme Court History: April 15, 1931

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  1. The way to stop discrimination is to stop discriminating. Or, something like that. Stop the return to tribalism. Work for civilization, which consists of recognition of individual rights, not tribal duties.

    1. The problem is that when many institutions focus on ‘individual rights’ certain groups consistently have been largely left out.

      1. Then stop being a racist, queen — simple as that

        1. That’s entirely non-responsive and question begging.

          1. The only question is why you think brown people cannot compete on merit — why are you a racist?

            1. Again, that’s silly. Do you think whenever you help anyone you think is facing an adverse situation that you are determining them to be inferior? Of course not.

              1. So, the adversity that made me stronger and succeed works differently with brown folk?

                1. No, you should start answering my questions for a change. Do you think whenever you do a favor for someone, give to charity for hurricane relief or lend a room to someone who had a tree fall on their house or what not, that you are making a statement they are inferior?

                  1. No I do not, but then again I do not carry a racial grievance scorecard nor limit my compassion to certain skin tones.

                    That would be racist.

                  2. Isn’t the racist part the suggestion that being a minority is akin to having a tree fall on your house? Race is a biologically meaningless classification, not a natural disaster.

                    1. Good point.
                      Different topic, but I was reminded of this:

                      [Chesterton] complains of “the modern and morbid habit of always sacrificing the normal to the abnormal,” and he criticizes socialism on the ground that “it is rather shocking that we have to treat a normal nation as something exceptional, like a house on fire or a shipwreck.”

                      (source)
                      Come to think of it, maybe not so different. Who’s pushing the racist crap that the FL Supreme Court rejected? Leftists.

                  3. But for the Florida CLE situation, you’re not advocating helping someone whose had a tree fall on their house . . . .

                    Identify Politics and use of Quotas means that you’re not so much interested in helping SOMEONE who has suffered but, rather, ANYONE who can be identified as kind-of-like someone who has suffered . . . even if they, individually, never suffered at all.

                    Consider the daughter of a former president or a Nigerian immigrant who arrived last week . . . . Can you find before-and-after photos of their houses and trees? I didn’t think so.

                    Interest in helping unfortunate SOMEONEs is virtuous. Insisting on collecting virtue points for helping ANYONE, at someone else’ expense, is not.

                    Anyway, that’s what I think.

      2. All you did was acknowledge that some people cannot compete without white liberals helping them. Which is highly racist.

        1. That’s amazingly dumb. Do you really think that whenever you try to help someone that you think is facing an adversity that you are insulting/hating them?

          1. You think nobody faces adversity without being a minority? You think falling trees check your race before falling?

            I had to drop out of college in my senior year to nurse my mother back to health after a bad car accident, and became the engineer I am today by a long apprenticeship in a different field of engineering. I’m still underpaid relative to industry standards due to that lack of a degree. Hey, maybe that car accident was because I’m secretly 128th black on my dad’s side, not because somebody wasn’t looking when they made a left turn!

            Look, if you want to help people recover from the effects of falling trees, look for fallen trees, not the color of their skin!

      3. The groups that have been “largely left out” are inherently unintelligent, improvident and violent.

        You can’t expect 85 IQ Africans with their higher levels of testosterone to compete with Europeans. Period.

    2. “The way to stop discrimination is to stop discriminating.”

      Great comment at a strikingly white, can’t-be-a-coincidence male, conservative blog that engages in viewpoint-driven censorship.

  2. Our resident Rev. would disagree.

  3. I identify and am a constructive black female, who is disabled, and in this country illegally, and of course, transgender. You may not realize it seeing or hearing me, but that is how I identify. You got a problem with that?

    1. Unfortunately like your identification as a person with good sense, none of those identifications correspond to reality

      1. Reality is a white, male, patriarchal concept [just like 2 + 2 = 4], and hence is prima facie racist.

      2. In this case, though, I think that’s okay because the Florida Bar and ABA quotas also fail to correspond to reality.

      3. Don. You need to apologize for your marginalizing me. You then need to resign from your job and from all your memberships.

    2. I think most people reading your comments identify you as a nut.

      1. You do not get to define who I am. I am valued. My life matters. I will not be marginalized by a racist, sexist, homophobic, xenophobic, Islamophobic, degrading, ablist, Volokh supremacist.

        1. No, you will be marginalized by non-nuts. I’d think you’d be used to it.

          1. You need to apologize for your mean spirited hurtful, ablist words.

          2. Who’s being non-responsive now QA? What exactly is wrong with DavidBehar’s self-identification?

            Do you believe people have a right to self-identify or not?

  4. “I write separately to further express my support for what I view as the well-intended motivation . . . ”

    Well, Judge, I see no way that a specifically racist and sexist rule is “well-intentioned”. Just a thought from the real world.

    1. Do you think the National Association for the Advancement of Colored People is specifically racist in the same way the KKK is? Do you think that was true in, say, 1920?

      1. Did the NAACP endorse racial discrimination in 1920?

        1. If I’m not mistaken, a good percentage of the dues-paying members of the NAACP in the 1960s were Jews. White Jews, motivated by that little bit about “never again.”

        2. Hold on to your hat, but they worked only for the advancement of certain races.

          I see a rather big difference in trying to focus efforts on an underrepresented race because you think they are disadvantaged (NAACP) and trying to keep an underrepresented group down because you think they are inferior (KKK) even though both are focused on race….

          It’s like saying shooting someone in self defense and shooting someone because they’re a Bucs fan is totes the same because they are both shootings.

          1. As a racist, sexist, homophobic, xenophobic, Islamophobic, degrading, ablist, Volokh supremacist, you need to apologize.

            1. No chance nut.

              1. That is a mean spirited, hurtful ablist slur. I do not judge people by their disability.

      2. BLM certainly is racist in the same way as the klan.

        1. Delusional is the most generous characterization of that view.

      3. The NAACP is the mortal enemy of all decent black people.

        1. Cuckoo for CoCo Puffs.

          1. Wow. What an ableist, racist, homophobic comment.

              1. You need to apologize for your vicious ablist slur. Then, you need to undergo an ablist fragility course.

            1. Here is a picture of CocoaPuffs.

              What is their color? What is the sexual preference of that flaming bird? Yes. Racist and homophobic remark by the fragile Queen Amalthea.

              https://upload.wikimedia.org/wikipedia/en/c/cf/CocoaPuffs.jpg

      4. Well, the KKK expressed their racism in the form of violent criminal attacks. That’s why they wore face covering robes, after all, they needed the anonymity.

        So, no, the NAACP is certainly racist, and more now than at its founding, but if you were looking for a group that’s racist in the same way as the KKK, that would be BLM.

  5. I write separately to express my opinion that using racism to combat racism makes as much sense as filling a hole with a hole.

    1. How is it ‘racism’ to want to see under represented races be more represented? It’s certainly discriminatory but I don’t see ‘racism’ there.

      1. If you are discriminating in order to increase the proportion of one group, then you are at the same time reducing the proportion of other groups. If you are doing this (reducing the proportion of other groups) on the basis of race , that’s the very definition of racism.

        1. No, the very definition of racism is ‘a belief that race is a fundamental determinant of human traits and capacities and that racial differences produce an inherent superiority of a particular race ‘

          https://www.merriam-webster.com/dictionary/racism

          1. That definition of racism is racist … and Orwellian

            1. When you are arguing with the most respected dictionary definition of a word it might be you that has an idiosyncratic understanding…

              1. And “sexual preference” suddenly became pejorative when politically convenient.

                1. I thought it did when it became more well known that people seemed to have an orientation rather than a mere preference.

                  1. In many of us it’s a very strong preference.

                    1. Indeed.

                    2. And the only reason anybody gives a shit about preference vs orientation is FN4. “Offense” has nothing to do with it.

              2. You and your lefty friends do not get to politically redefine words anymore than scientists can change reality of gender and homosexuality because activists invade meetings and threaten people.

                Truth … scientific truth and the truth words represent have meaning beyond your hatred.

                1. Am I the one trying to redefine words? You’re the one arguing with the dictionary…

                  “reality of gender”

                  Did you mean to write ‘sex?’ Because *gender* is plainly socially constructed, that’s the reality of it…

                  1. The Newspeak definition was added because of political pressure, period. The idea, the practice, the belief systems exist — and cannot be erased because you wish to exempt the hatred of pale people from its definition.

                    Gender is in part innate, masculinity and femininity exists outside of culture, the current fad of trying to eliminate nature not withstanding.

                    1. As to gender, it’s funny how this totally natural thing has changed so much over time and geography. And how worried people like you are that cultural forces will change it further…

                      As to the definition of racism, that’s not a new definition. It’s always had a definition that would differentiate things like the NAACP or HBCUs.

                    2. Men have always been physically stronger to hunt and gather, to protect.

                      Women have always been nurturing, more able to handle physical pain.

                      These and many more attributes have been consistent no matter the culture … or the era.

                    3. 1. Physical strength differences are from sex.
                      2. These are not consistent, they change quite a bit over time and place. The amount of housework done by women in Scandinavia for example is dramatically different than that done in Japan, for example, and the roles men and women play in, say parenting or careers has changed dramatically over time.

                      Like race, gender is based in part on real physical attributes but a big chunk of it then is socially constructed.

                  2. “Did you mean to write ‘sex?’ Because *gender* is plainly socially constructed, that’s the reality of it…”

                    From your Dictionary:

                    Gender:
                    1. Grammar blah blah..
                    2a. Sex
                    2b. Social construct blah blah blah…

          2. Or, “the systemic oppression of a racial group to the social, economic, and political advantage of another”

            In a zero sum world, you can’t lift up one race without oppressing another. The best you can do is just treat people without regard to race.

            1. Really? So if I gave money to the United Negro College fund in, say, 1950, I would be oppressing…who?

              1. I’m not the one who thinks private discrimination ought to be illegal, now, am I? That would be you, the hypocrite who condemns racism while practicing it.

                I really don’t have a problem with people being racially discriminatory in terms of who they decide to give gifts to, or befriend, or marry. It’s not a big moral issue, because people aren’t entitled to gifts, friendship, or love in the first place. It’s not something I find admirable, but, their time, money, and affection, their call.

                I think racial discrimination in hiring and admissions is stupid, destructive, and in the private sector ought to be legal anyway, because people are entitled to be stupid and destructive with their own money, on their own time.

                OTOH, even in the private sector, it is stupid enough that anybody in a position with a fiduciary responsibility should be legally barred from engaging in it, unless directed to by the owner of the company.

                The government sector is different, both because it is explicitly commanded by the 14th amendment to refrain from discrimination, and because the government doesn’t HAVE ‘their own money’, it’s all resources that were taken from others, and it has a duty similar to a fiduciary duty to use them impartially.

                Bottom line, give to whoever you want, so long as it’s yours to give. My taxes aren’t yours to give.

              2. So if I gave money to the United Negro College fund in, say, 1950, I would be oppressing…who?

                You personally? Nobody — it’s your money.

                The royal, societal “you” that’s the actual subject of this thread? The people you arbitrarily took the money from, other colleges that don’t limit admissions based on skin color, etc.

          3. Yes you’re a racist. Next question.

            1. The grown ups are talking puss puss.

              1. “grown ups are talking”

                Then why are you speaking?

          4. Sorry, but no. Here is the Oxford Dictionary definition:
            racism: the unfair treatment of people who belong to a different race https://www.oxfordlearnersdictionaries.com/us/definition/english/racism
            And don’t think you’re fooling anyone with your Webster quote, because right after that quote they give a definition of ‘the systemic oppression of a racial group to the social, economic, and political advantage of another’ – which is exactly what you are doing when setting race-based quotas.

            1. The word ‘unfair’ does some work in that. Is it unfair if I give money to a Historically Black college in, say, 1869?

              1. If you disqualify an otherwise eligible candidate due to a quota limit on his race, then yes, that is unfair. Giving your own money to a Historically Black college in 1869 or today does not similarly disadvantage any particular race.

                1. It’s certainly a preference based on race to give to a blacks only institution.

                  1. Yes, but not one that treats another group unfairly.

          5. “No, the very definition of racism is ‘a belief that race is a fundamental determinant of human traits and capacities and that racial differences produce an inherent superiority of a particular race ‘”

            Well, according to some people, if you have two white guys on a panel, then racial difference make some races inherently superior candidates for the third spot on the panel.

            1. Not because they think the third guy’s race is from an inherently superior race.

              1. When the GOP puts on an event like their convention and they look at their line up and they say, let’s say sincerely, hmm, all of our presenters are white guys, but we think our message is important and good for blacks and Hispanics and women to hear and we want to combat the assertions that we’re racists and help reach those groups as well so let’s try to get some representation from those groups that are GOP members up there as well they are not picking those people because they think they are from an inherently superior race. And, so, I wouldn’t find what they are doing to be racist. Would you?

                1. It fits your definition. You’re the one posting definitions, remember?

          6. Well making racial quotas mandatory certainly makes race a “race is a fundamental determinant of” opportunity and success.

            That’s why racial quotas are illegal for government entities.

          7. a belief that race is a fundamental determinant of human traits and capacities

            Seriously, isn’t that the core concept of why diversity is important? Or is it the mere non-genetic affectations of different groups as they live semi-independently in different regions?

          8. Alright, I’ll jump in and take a bite. Queen, you want to define “racism” as discrimination but ONLY if it is based on a belief in the inherent superiority of a particular race. Other forms of discrimination NOT based on this belief are not “racist”.

            Hopefully I have stated your position to your satisfaction.

            So, two questions:

            1. You cannot objectively determine a belief. It is by nature subjective. Only the believer knows their own belief. So your criterion for racism is based on something that cannot be an established fact, because there is always the possibility of lying, something humans are very good at. This doesn’t make your definition wrong, but it does render it pretty much unusable as a practical matter.

            2. Even if we could somehow get past the subjectivity issue, your definition would make it perfectly fine to discriminate against a race for ANY reason, as long as the reason isn’t because you believed in inherent superiority. So, discriminating because you don’t like them: allowed. Discriminating because you want someone else to get rich, not them: allowed. Discriminating because they aren’t a member of your special club: allowed. Again, it doesn’t make your definition logically wrong, but it makes it useless.

            The useful and objective definition of racial discrimination is making ANY judgment based on a person’s RACE.

      2. “certainly discriminatory”

        Discrimination based on race.

        So racism.

        QED

        1. Are you using QED to mean question begging? Because I don’t think that’s what it usually means…

          1. Racial discrimination is racism. You admit it is discrimination, so you admit it is racism.

            1. No, that’s question begging. My entire claim is that not all discrimination or preference based on race can be considered racism. The NAACP works to advance only colored people but they’re not racist (they certainly weren’t for most of their history, were they?).

              Racism is defined as ‘‘a belief that race is a fundamental determinant of human traits and capacities and that racial differences produce an inherent superiority of a particular race” That’s not going on here…

              1. So, if a white guy only hired white men who failed to get a job because of affirmative action and not because he thinks blacks are inferior, or hates, but only because he feels that they have been discriminated against, he is not a racist according you your mathematics?

                Or he only hires Asians, but not blacks — also not racism?

                1. I think intent plays a part in whether something is “‘a belief that race is a fundamental determinant of human traits and capacities and that racial differences produce an inherent superiority of a particular race,” yes.

                  I heard a story the other day about a man who immigrated from either Cambodia or Vietnam (not certain) but he started a business that sold donuts and hit it big. Every franchise he started he got migrants from his ethnic group to work there because he knew they struggled with English and had trouble finding jobs. Do you think what he did was racist?

                  1. To put it in another way I think it’s a very complicated thing but I think racism is defined by something like punching down because of dislike of a group but not giving a helping hand because of empathy for a group.

                    1. When black men and women attack Asians, which way are they “punching?” Do the words cut less? Do the bruises not shine as bright? The beatdowns not hurt?

                      Whites helping whites (or Jews, or Asians doing the helping) does not qualify as empathy? Are these groups somehow not deserving of empathy?

                    2. When you literally attack someone then, yes, you are punching down. Literally.

                    3. When you literally attack someone then, yes, you are punching down. Literally.

                      So the majority of interracial attacks (blacks attacking whites as chance would have it) constitute “punching down?”

                      If he hires other Serbian migrants because he thinks they are struggling with the language and having trouble? No, I don’t think he’s racist.

                      By purposefully hiring Serbs he is also purposefully not hiring blacks, and Jews, and … sounds pretty racist to me.

                    4. Beating someone up is literally punching down, if one does it for dislike of a race then if fits my definition nicely.

                      And no, the Serbian is not racist, no more than someone who gave to the United Negro College Fund in 1944 would have been.

                  2. If he hired based on race, then he also did not hire based upon race — sounds like a racist action to me.

                    A white guy uses the math you describe, but he is a recent Serbian immigrant — not racist?

                    1. If he hires other Serbian migrants because he thinks they are struggling with the language and having trouble? No, I don’t think he’s racist.

  6. Is Justice Labarga being deliberately obtuse, perhaps trying to play both sides of the issue to avoid vilification?

    1. The “may” suggests that might be the case.

  7. Sounds like a good time to end the bar as having any influence on who can practice in the state.

    1. That’s what I’ve been saying for some time will happen — I just didn’t expect it to be over this. But if the ABA wishes to pick this hill to die on, more power to them….

      And good riddance….

  8. How can one person be “diverse”? ( “Individual programs with faculty of three or four panel participants, including the moderator, will require at least 1 diverse member”.) This isn’t just a language issue. What they mean by a “diverse member” is some one of a favored race, ethnicity, sexual orientation, etc. But they don’t dare say that, because it gives the game away. Orwell was right. If you let THEM control the language, then they will control the society.

    RESIST!

  9. Who knew lawyers were such racists!

  10. Besides the real divisions in this country are political not race, ethnicity, gender, sexual orientation, gender identity, disability, and multiculturalism.

    To get diversity of opinion, they need equal numbers of red and blue, plus a sprinkling of libertarian, socialists, and so on.

    1. Are they? Take an issue like police brutality, polls show a larger difference between whites and blacks than Democrats and Republicans.

  11. Wouldn’t the ABA’s imposition of a requirement that is illegal under Florida law be itself against Florida law?

    So if for example the ABA attempted to impose a $2500 fine, wouldn’t Florida courts simply invalidate it?

    1. 1) Thank you for addressing the blog post, rather than just retreating to the pointless back-and-forth talking points from the usual suspects above.

      2) The ABA is a private organization; it can’t actually “fine” anyone. That’s just a misleading word choice on their part. All they can do is refuse to sponsor/accredit the CLE offering. (This is a big deal, because nobody takes CLEs except to fulfill state licensing requirements. And an unaccredited offering won’t fulfill those requirements.) But they’re saying that in exchange for a bribe/tribute of $2,500, they’ll begrudgingly accredit a non-“diverse” CLE program.

      1. It appears that Florida will develop its own industry of CLE offerings outside the ABA approved by the Florida board of legal specialization agencies. Perhaps the Florida board will recognize other CLE accreditation agencies besides the ABA. The rule would appear to prohibit Florida from accepting ABA-accredited CLE courses for state licensing purposes. So as you say, there would be no point in Florida lawyers taking any ABA-accredited CLE courses, since under the rule an ABA accredited course (unless a waiver was given) doesn’t fulfill Florida state CLE requirements.

        Perhaps if multiple states prohibit use of ABA-accredited CLE courses for state licensing purposes, the ABA will consider changing its acceeditation policies to regain access to markets like Florida.

      2. All they can do is refuse to sponsor/accredit the CLE offering. (This is a big deal, because nobody takes CLEs except to fulfill state licensing requirements. And an unaccredited offering won’t fulfill those requirements.) But they’re saying that in exchange for a bribe/tribute of $2,500, they’ll begrudgingly accredit a non-“diverse” CLE program.

        Voice of Church Lady: “How conveeeeenient.”

  12. Outside of the college admissions context where everyone seems to know about Gratz, Grutter, and Bakke, I get the feeling that a lot of these programs are underlawyered. The average person working for a governmental agency does not necessarily realize that the caselaw holds that rather modest preferences are barely constitutional and out and out quotas or mandated racial segregation never are. I bet it never even crossed the ABA’s mind that a state couldn’t constitutionally adopt its diversity rule- and they are full of lawyers who should know better!

    This would probably be a fruitful area for a conservative public interest firm. Just go out in the world and collect examples of local and state government agencies with explicit quotas or segregated activities, and sue them. It would at least have the effect of getting people to read the law and try to comply with it.

    1. That could work.

      Similarly, the liberal-libertarian mainstream could address conservatives’ stale bigotry by criminalizing it. How many clingers are prepared to be fined or imprisoned for engaging in ugly, obsolete right-wing racism, gay-bashing, misogyny, xenophobia, etc?

      Carry on, clingers . . . but only so far and so long as better Americans permit.

      1. Yes. Times are so bad we need to grant the government emergency powers to correct them, like throwing opposition into jails, reeducating them, functionally firing the Supreme Court via induced irrelevancy so they can rubber stamp our dictates, printing money without concern to potential inflation.

        But enough about Venezuela, Turkey, and 1930s Germany.

    2. I can’t believe (a) the ABA was this explicit and (b) no lawyer challenged it.

    3. I thought the current precedent was more like, “Out and out quotas are OK so long as they’re not explicit, and are claimed to be merely modest preferences.” Because educational institutions seem to be able to get away with some pretty heavy preferences that just by coincidence reliably achieve numerical goals every year.

      1. Not really. In the college admissions context, everything is very carefully lawyered because Grutter is so narrow.

        But the misconception that they just get away with whatever they want may contribute to the issue I commented about.

      2. In this, as in many other matters where people disagree, what you see as a distinction without a difference, others see as a distinction that makes a difference.

        It’s true that considering things like income level, extra points for people who are the first in their family to go to college, or allocating a minimum number of slots to each high school or geographic region tends to result in favoring minority applicants. But others would say that because minority applicants tend to be poor, educationally disadvantaged, and geographically segregated, these considerations are reasonable and not unfair.

      3. If you look at reports on results of overtime grants for traffic police from the federal government, you will see a suspicious clustering of weighted stops per hour even in states where ticket quotas are illegal.

  13. Justice Lawson inadvertently (I think) gives away the underlying flaw in this entire effort:

    “It is when those who perceive and think differently come together in an environment of mutual respect and genuine concern for the well-being of others that we can best gain the understanding necessary to fully advance the ideals underpinning our judicial system.”

    It’s quite a stretch (and quite demeaning) to suppose that filling quotas will expose participants to people “who perceive and think differently.” It’s almost is if we’re supposed to take it on unquestionable faith that there’s a white perspective and a black perspective and a Latino perspective and a trans perspective on every issue. And that the black or white or Muslim or gay person that you put on a panel to fill a quota will accurately represent that identity’s perspective, as if each identity can be boiled down to a single perspective.

    If you want people who “perceive and think differently,” why don’t you assemble panels of people who actually “perceive and think differently”?

  14. So I’m on some committees organizing CLEs in Texas, and we’re told to consider diversity in speakers at conferences. But the big differences are (1) we don’t have quotas, and (2) we don’t just look at diversity as black/white and male/female. Different things we’re asked to look at include geographical diversity (Texas is a big state, and you don’t want just speakers from Dallas and Houston) and diversity of practice (big firms/sole practitioners, prosecutors/defense attorneys, etc). I think it’s important to consider actual diversity of experience, not just use skin color as a proxy for it.

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