Diversity Cannot Be Dismissed

Posted on January 24, 2022, by Starlett Massey

Has the Florida Supreme Court withdrawn its support for the promotion of diversity?

On April 15, 2021, the Supreme Court of Florida amended the Rules Regulating the Florida Bar to prevent continuing legal education (“CLE”) credit from being given to courses created in accordance with the American Bar Association (“ABA”) model policy^[1].  The ABA Diversity & Inclusion (“D&I”) CLE Policy “provides that any ABA CLE program with three or more panelists (including the moderator) must have at least one member from a diverse group; a CLE program with five to eight panelists (including the moderator) must have at least three members from a diverse group.”^[2] Diversity is defined in this Policy to mean race, ethnicity, gender, sexual orientation, gender identity, and disability.^[3] The Policy restricts the ABA from sponsoring, co-sponsoring, or awarding CLE accreditation to a CLE that fails to adhere to this Policy.  The ABA D&I CLE Policy has mechanisms for appeals and exceptions to be granted where CLE credit and/or sponsorship may be attained regardless of non-compliance with the Policy.

The Business Law Section (“BLS”) of The Florida Bar implemented the BLS Diversity & Inclusion CLE Speaker Panel Policy (“BLS Policy”) on September 1, 2020, with an effective date of January 1, 2021.  The BLS Policy is modeled after the ABA D&I CLE Policy and defines diversity as based on “race, ethnicity, gender, sexual orientation, gender identity, disability and multiculturalism.”^[4] The BLS Policy provides two scenarios that may constitute grounds for an exception from the BLS Policy: 

“1. Previously confirmed diverse speakers or moderators for the CLE cancel, withdraw or become unable to attend and participate in the CLE and insufficient time exists to replace them and maintain a diverse panel.

2. After a diligent search and inquiry, the proponents of the CLE have affirmed they have been unable to obtain the participation of the requisite diverse members of the CLE panel.”^[5]

In response to the implementation of the BLS Policy, on its own motion, the Florida Supreme Court issued its April 15, 2021 Opinion. The Florida Supreme Court’s opinion amended Rule 6-10.3 governing Minimum Continuing Legal Education Standards to prohibit the board of legal specialization and education from approving “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.”^[6] 

In response to the Florida Supreme Court’s April 2021 opinion, BLS rescinded its Policy.  The legal community also reacted; the Florida Supreme Court received over forty comments objecting to the April 2021 opinion.  

On December 16, 2021, the Florida Supreme Court responded to the negative comments by issuing an opinion affirming the rule change, but extending the effective date and clarifying that both sponsors or individual bar members would be precluded from seeking CLE credit for CLEs created utilizing any “quota.”^[7]

The Florida Supreme Court’s holding that the BLS Policy is akin to a quota is misplaced. From a legal perspective, the second basis for seeking an exception from the BLS Policy renders the BLS Policy more akin to an illusory contract than a requirement and therefore quota.  Where the proponents of the CLE affirm that they are unable to obtain the participation of the appropriate number of diverse panelists, the proponents may still receive the CLE certification from BLS.  Accordingly, the BLS Policy does not implement the mandatory requirement of diverse panelists and is instead essentially a recommendation. Thus, the BLS Policy seeks to attempt to create diversity amongst CLE panelists and is an aspirational policy.  

The Florida Supreme Court’s holding is even more problematic because it analogizes the BLS Policy as discrimination under a reverse discrimination theory.  The original opinion determined that the BLS Policy was a quota and therefore “antithetical to basic American principles of nondiscrimination.”^[8] The December 2021 opinion doubled down on this theory, stating that by requiring diverse CLE panelists based upon race, ethnicity, gender, sexual orientation, gender identity, disability and multiculturalism, the Policy “caps the percentage of nondiverse panelists”^[9] and is discriminatory.  The Florida Supreme Court’s December opinion operates to prevent discrimination against straight, white, able-bodied men.  The reality is that discrimination in our society occurs against historically excluded individuals – not the members of our society who have historically maintained power and control.  Only in a ridiculous hypothetical scenario would such a white man be the subject of discrimination.  This is not the way the world works.  The Florida Supreme Court is living in a fantasy of its own creation where white men who want to speak at CLEs are suffering at the hands of historically marginalized individuals.

Even more concerning than the erroneous legal analysis finding the BLS Policy to be mandatory, and therefore a quota, and the highest court in our state affirming the existence of reverse discrimination, is what remained unsaid in both the April 2021 and December 2021 Florida Supreme Court majority opinions.  The Court entirely omitted any commitment to The Florida Bar’s efforts to promote diversity.  While the Florida Supreme Court in its original opinion specifically noted its recognition and gratitude “for the Bar sections’ important contributions to the legal profession in our state,”^[10] both majority opinions are silent as to the importance of the promotion of diversity within The Florida Bar.  

The question must then be asked: why?  Is it because “diversity” was on the list of forbidden words promulgated by the Trump administration to the CDC?^[11]  Have our values as a society been so altered by the prior administration so as to foster governmental disinterest in promoting the values of diversity, equity and inclusion?  If this is the case, then attorneys must use our collective voice to promote the visibility and voices of historically marginalized and excluded individuals in the legal profession and in our communities.  

Diversity, equity, and inclusion matter.  There are other reasons to support these goals: they improve companies’ bottom lines, personal and organizational productivity, and companies’ recruiting power.^[12] The most important reason is because we as a society seek to evolve in meaningful and positive ways for all of our members.

The Florida Supreme Court did not simply dismiss the CLE policies; they dismissed diversity as a goal for The Florida Bar.   

Discover more, and read → Diversity and the Economy: An Integral Connection

[1] In re: Amendment to Rule Regulating the Florida Bar 6-10.3, 315 So.3d 637 (Fla. 2021).

[2] https://www.americanbar.org/groups/taxation/publications/abataxtimes_home/20feb/20feb-villalobos-diversity-inclusion-overview/

[3] Id. See ABA Diversity & Inclusion CLE Policy, ABA.

[4] Business Law Section of The Florida Bar Diversity & Inclusion CLE Speaker Panel Policy.

[5] Id.

[6] In re: Amendment to Rule Regulating the Florida Bar 6-10.3, 315 So.3d 637, 638 (Fla. 2021).

[7] In re: Amendment to Rule Regulating the Florida Bar 6-10.3, No. SC21-284 (Fla. 2021).

[8] In re: Amendment to Rule Regulating the Florida Bar 6-10.3, 315 So.3d 637, 637 (Fla. 2021).

[9] In re: Amendment to Rule Regulating the Florida Bar 6-10.3, No. SC21-284 (Fla. 2021).

[10] In re: Amendment to Rule Regulating the Florida Bar 6-10.3, 315 So.3d 637, 637 (Fla. 2021).

[11] https://blogs.scientificamerican.com/observations/trump-to-cdc-these-7-words-are-now-forbidden/; see also .  https://www.npr.org/2017/12/16/571329234/trump-administration-reportedly-instructs-cdc-on-its-own-version-of-7-dirty-word; https://www.vox.com/2017/12/20/16793010/cdc-word-ban-trump-censorship-language; https://blogs.scientificamerican.com/observations/trump-to-cdc-these-7-words-are-now-forbidden/.

[12] https://www.mckinsey.com/business-functions/people-and-organizational-performance/our-insights/why-diversity-matters