Thursday, April 15, 2021

CLE Diversity Quotas Prohibited In Florida

The Florida Supreme Court amended its CLE rules to add the last sentence

Course approval is set forth in policies adopted pursuant to this rule. Special policies will be adopted for courses sponsored by governmental agencies for employee lawyers that exempt these courses from any course approval fee and may exempt these courses from other requirements as determined by the board of legal specialization and education. 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.

Per curiam

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.

Result

The Court expects that The Florida Bar will amend its policies as necessary to ensure compliance. Because the amendments were not published for comment previously, interested persons shall have seventy-five days from the date of this opinion in which to file comments with the Court.

Justice Lawson concurred

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 dissented and would have dealt with the matter by letter rather than a rule. (Mike Frisch)

https://lawprofessors.typepad.com/legal_profession/2021/04/course-approval-is-set-forth-in-policies-adopted-pursuant-to-this-rule-special-policies-will-be-adopted-for-courses-sponso.html

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