The Volokh Conspiracy
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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.]
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.
