The Volokh Conspiracy
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From In re: Amendment to Rule Regulating the Florida Bar 6-10.3, decided Thursday by the Florida Supreme Court:
Earlier this year, the Court amended the Rules Regulating the Florida Bar to preclude continuing legal education credit for "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." Although the amendment took effect immediately, the Court invited comments from interested persons.
Having reviewed those comments, we have decided to modify the rule amendment in two limited respects. First, in deference to Florida Bar members who planned their 2021 CLE activities in reliance on the preamendment status quo, we postpone the effective date of the rule amendment until January 1, 2022. 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. For ease of reference, we have attached that policy to this opinion as Appendix B.
On its face, the policy "will require" CLE program panels to include a minimum number of "diverse" members, depending on the size of the panel. And on its face, the policy defines diversity in terms of a person's membership in "groups based upon race, ethnicity, gender, sexual orientation, gender identity, disability and multiculturalism." The Business Law Section has rescinded this policy, but only as a response to our rule amendment. The Section informs us that, if the Court were to revoke the rule amendment, the Section would reinstate the policy.
The Business Law Section modeled this policy on a similar policy of the American Bar Association. The ABA adopted its own policy after finding that ABA entities had "fail[ed] to comply" with the organization's "aspirational policy" that all CLE panels include "diverse members of our profession." The ABA uses the term "diverse members of our profession" to describe "women, racial and ethnic minorities, persons with disabilities, and persons of differing sexual orientations and gender identities."
When we adopted the rule amendment, we described the Business Law Section's policy as imposing "quotas." The label fits: as a matter of ordinary usage, the term "quota" includes "[a] number or percentage, especially of people, constituting a required or targeted minimum." The Section's policy requires a minimum percentage of "diverse" CLE program panelists. In doing so, the policy necessarily caps the allowable percentage of nondiverse panelists.
Our decision also said that "[q]uotas based on characteristics like the ones in this policy are antithetical to basic American principles of nondiscrimination." The policy treats people differently (i.e., discriminates) based on their membership in groups defined by "race, ethnicity, gender, sexual orientation, gender identity, disability and 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.
We reject the notion that quotas like these cause no harm. Quotas depart from the American ideal of treating people as unique individuals, rather than as members of groups. Quotas are based on and foster stereotypes. And quotas are divisive. "It would be a sad day indeed, were America to become a quota-ridden society, with each identifiable minority assigned proportional representation in every desirable walk of life."
In deciding whether and how to address the Business Law Section's policy, we reached two basic conclusions: first, that it would be wrong for the Court to turn a blind eye to this sort of discrimination; and second, that any regulatory response should address the use of discriminatory quotas by any CLE course sponsor, regardless of its affiliation with The Florida Bar. This Court has limited authority over the policies of entirely private entities, and rightly so. 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 is firmly committed to the principles of nondiscrimination and equal opportunity for all. Consistent with that commitment, we support proactive measures to ensure that individuals from all backgrounds are afforded fair opportunities to participate in CLE programs and in the legal profession more generally. Inclusivity is a laudable goal, and it can be achieved without resorting to discriminatory quotas….
With a handful of exceptions, the forty-plus comments the Court received in response to the rule amendment were negative. But we respectfully disagree with the opponents' principal objections, and we will explain why….
Whether the policy causes harm. Many commenters object to our labeling the Business Law Section's and the ABA's policies as "quota" policies. These commenters further maintain that, labels aside, the policies harm no one and are intended to include rather than to exclude. We have no doubt that supporters of the policies at issue genuinely see things this way.
But we already have explained why it is correct, as a matter of standard English, to describe these policies as imposing quotas. We also have explained our view that quotas harm individuals and society. Again, quotas ignore each person's uniqueness and innate worth; promote stereotyping; and sow division.
We note that, on their face, the Business Law Section and ABA policies make no attempt to connect a person's "diversity" to the subject matter or educational content of the CLE program. The ABA's submission to the Court indicates that it administers its diversity requirement this way: "Program planners ask potential speakers to voluntarily answer the following question: Do you identify yourself as diverse?" A person's answer to this question is then used to determine how to categorize a person (nondiverse or diverse) for purposes of compliance with the diversity policy. This approach smacks of stereotyping or naked balancing; it does not invite a "holistic" assessment of whatever unique perspective an individual might bring to a panel.
Importance of the ABA's CLE programs. Many commenters praised the content and value of the ABA's CLE programming and bemoaned the rule amendment's effect on that programming. Of course, our rule amendment does not prohibit anyone from attending an ABA CLE program or from partnering with the ABA. Nonetheless, we acknowledge the concerns of those commenters who would like to receive CLE credit for their 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 is not discriminatory because, as illustrated by the sheer scope of the policy's definition of diversity, the intent is to include, not exclude, CLE panel participants… [In the words of] the ABA, which argued regarding its policy (after which the Business Law Section's policy was modeled):
The ABA's approach is neither a "quota" nor a preference system that would fail under the United States Supreme Court's 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.
There are no "set asides" or reserved seats for certain categories of individuals. In the rare instance in which a panelist who brings diversity could not be located, the ABA is empowered to grant a waiver for an individual program. 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. There is thus no interest of any individual to be protected from the policy.
The Business Law Section of the Florida Bar also explained regarding its now-rescinded policy:
Any program that has two or fewer panelists does not need to consider diversity as a factor. It is only when there are three or more panelists on a program that diversity consideration come[s] into play. And even then, if the benchmarks identified in the policy for programs with three or more speakers cannot be met, the Section may waive the CLE Diversity Policy or make an exception to it. Because the policy allows for waivers, appeals, exceptions, and is not required for all programs, it is, by definition, not mandatory. For all these reasons, the CLE Diversity Policy is appropriate, narrowly tailored, and served a compelling interest….