By Noreen Marcus, FloridaBulldog.org
The Florida Supreme Court seems to be buffing its ultra-rightist image by picking a fight about diversity with Florida Bar leaders and the American Bar Association.
Propelling it all is a controversial 1978 U.S. Supreme Court decision that outlaws “reverse discrimination,” Regents of the University of California v. Bakke. Florida’s high court is resurrecting Bakke to suggest that a diversity policy is really an unfair quota intended to displace white men in favor of women and minorities.
Traditionally the court wields its power over the Florida Bar only after weighing all sides of an issue. It takes in facts and opinions from the legal community, then makes or changes rules for everything from lawyer discipline to divorce procedures.
Not this time. The subject is Continuing Legal Education (CLE), the tightly regulated system that licensed lawyers use to keep up with developments in their practice areas.
In an unusual move, the justices accepted no input before rejecting a pro-diversity policy for CLEs that was recently adopted by the Bar’s Business Law Section, copying a 2017 ABA guideline. Both set numerical goals for CLE faculties so they represent all races, genders, ethnicities and viewpoints.
“We don’t exclude anybody from participating in the panels,” ABA President Patricia Lee Refo has explained. “What we do, where necessary, is to expand the size of the panel to include nontraditional voices.”
Although no white male Florida lawyers had reason to complain about getting kicked off Continuing Legal Education panels, the Florida Supreme Court decided to strike down the diversity policy on its own. Not a single self-identified injured party presented a “case or controversy,” the standard trigger for litigation.
Court: ‘Quotas’ taint Continuing Legal Education
The court’s April 15 ruling prevents Florida lawyers from earning CLE credits for ABA courses. According to a majority of the justices, the courses are corrupted by “quotas” just like Business Law Section courses would have been under the rejected policy.
“It is essential that The Florida Bar withhold its approval from continuing legal education programs that are tainted by such discrimination,” the court declared in its unsigned opinion.
CLE is a big deal for the state’s 90,000 attorneys. To maintain a law license in Florida, a lawyer must complete at least 33 hours of approved courses every three years. The programs facilitate networking and professional development — teaching one of them dresses up a resume.
Many ABA courses are highly specialized; ABA dues-paying Florida lawyers can take them for free or at reduced rates. From March 2017 through April 2021, the ABA sponsored 2,893CLE programs in Florida, according to a court document.
Legal groups at all levels have a long-standing commitment to diversity. One of the 200,000-member ABA’s four goals is to “eliminate bias and enhance diversity” in the profession. Florida lawyers study “bias elimination” as part of their training in professional responsibility.
Lawyers respond after the fact
So it surprised many in Florida’s legal world when their high court became the first to push back against the ABA’s model diversity policy for CLE panels.
The court ruled 6-1 that while diversity is worthwhile, “certain means [to achieve it] are out of bounds.”
Calling the Business Law Section guidelines “quotas,” the court banned them because they’re “antithetical to basic American principles of nondiscrimination.” To support this conclusion, the majority refers to the 43-year-old Bakke decision.
Justice Jorge Labarga, the conservative court’s moderate member, dissented. The ruling was unnecessary, he wrote; the justices only had to question the policy and the Business Law Section would have changed it.
Labarga didn’t state the obvious: The majority opinion turns anti-discrimination law on its head. And doing nothing more than acting on a possible Bar section misstep would blunt the ruling’s impact and deny the court a broadside attack on the liberal-leaning ABA.
Instead, a boatload of lawyers expressed concerns and more practical gripes in written comments. They responded to the justices’ belated invitation to say their piece after the court had already spoken.
The ‘Message’ for Continuing Legal Education
“Unfortunately, the message received by many is that the Court does not value diversity,” West Palm Beach lawyer Michael Gelfand wrote. A new member of the Florida Bar Board of Governors, Gelfand said his comment reflects only his individual views.
“Especially considering the likelihood that the Court will have to hear disputes regarding race-based issues, the Court places itself in a position where it may be argued that the Court has prejudged the situation,” Gelfand wrote.
By stretching to rule on a contentious topic, “the Court can appear to be going out of its way to enter one of the nation’s partisan debates, seeking to take the lead to discredit the American Bar Association’s diversity efforts,” he wrote.
Miami attorney Andrew Berman complains in his comment that forcing Florida lawyers to give up ABA courses “is manifestly punitive and will cause unnecessary hardship and inconvenience.” A founding member of the ABA Center for Professional Responsibility, Berman is active on Florida Bar committees.
Gelfand, Berman and other lawyers, many special-interest lawyer groups and 85 law school deans from across the nation are asking the court to reconsider and reverse its ruling, something it rarely does.
Dean defends court’s motives
Jose Roberto “Beto” Juarez Jr., dean of the Nova Southeastern University Shepard Broad College of Law in Davie, told Florida Bulldog he believes the court will do what he considers the right thing and reinstate the diversity policy.
He cautioned against viewing the April 15 ruling through a partisan political lens. The Supreme Court “isn’t this evil entity that is out to ensure that CLE courses continue to be taught by white men,” he said. “I know that is not what the court will intend here.”
Juarez is the only Florida law school dean to sign the comment written by William Hubbard, dean of the University of South Carolina School of Law. Other signers include the deans of law schools at Georgetown, New York University, Rutgers, Tulane and Berkeley.
Their comment is a full-throated brief for the importance of diversity to legal education and practice. “This is a conscious effort to make sure that we in the legal profession are benefitting from all of the talents in the legal profession,” Juarez said.
The comment period ended July 15, and the court has no timeframe for responding. The justices could ignore everyone and, if they choose, build on the April 15 ruling to eliminate other pro-diversity policies.
‘Litigation risks’ for Florida Bar
That would probably delight at least one commentator, Zack Smith, a legal fellow at the Edwin Meese III Center for Legal and Judicial Studies, part of the Heritage Foundation in Washington, D.C.
Smith, a Florida Bar member and former federal prosecutor, is a graduate of the University of Florida Fredric G. Levin College of Law, where he served on the board of the school’s Federalist Society chapter. Most of the current Florida Supreme Court justices have ties to the conservative Federalist Society.
Smith’s view amplifies the court’s anti-diversity, anti-ABA tone. Letting the Florida Bar accept CLE credits from groups with quota-like diversity policies would “allow the state’s imprimatur to be imposed on those bad policies,” he wrote.
Even in the absence of an injured party, a case or a controversy, it’s the court’s duty to act under these circumstances, Smith asserted.
He even floated a threat, writing, “The Florida Bar may be faced with significant litigation risks if it accepts or advocates for acceptance of such CLE credits.”
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