By Noreen Marcus, FloridaBulldog.org
When the Florida Supreme Court took the step of deciding – with no traditional input from the Florida Bar – to penalize a push for diversity in lawyers’ refresher courses, the outcry echoed from Tallahassee to Key West.
On Thursday, after finally accepting some input, the court issued essentially the same opinion all over again.
This time, though, it came with a sweeping denunciation from Justice Jorge Labarga, the conservative court’s only moderate member. He addressed not only the uproar over the court changing the Continuing Legal Education (CLE) rule without hearing from Florida lawyers, but the court’s deviation from established norms.
“While the majority today reasserts its authority to do so, it is noteworthy that the unilateral action the Court takes here is not isolated,” Justice Labarga wrote in his dissent. “Rather, the majority’s decisions of late have ushered in a series of drastic changes in civil, criminal, and rulemaking contexts, and today’s decision by the majority only furthers this list.”
The original April 15 ruling inspired 40 lawyers and groups to file comments with the court. The vast majority opposed the justices’ rule change that strips education credits from courses with faculties chosen in part to represent all races, genders, ethnicities and viewpoints.
‘AN UNFORTUNATE DECISION’
Opponents said they hoped the justices would take another look at the impact of what they had done and reverse themselves.
The Florida Supreme Court “isn’t this evil entity that is out to ensure that CLE courses continue to be taught by white men,” law school dean Jose R. “Beto” Juarez Jr. said at the time. “I know that is not what the court will intend here.”
On Thursday the court disappointed Juarez and, no doubt, many others when it ruled 6-1 to make only a couple of cosmetic changes to the new rule but otherwise keep it intact.
The decision is a broadside against the American Bar Association, originator of the diversity rule. Now Florida lawyers who choose ABA courses to fulfill their CLE requirements will forfeit credits for taking them.
“It’s an unfortunate decision,” said Juarez, dean of Nova Southeastern University’s Shepard Broad College of Law in Davie. “It makes Florida an outlier nationally” as the only state to penalize lawyers for taking ABA courses.
“It removes the ability of members of the Florida Bar to benefit from the wide range of CLE courses that are offered by the premiere legal organization in our country, the ABA,” he said.
NO COMMENT ON JUSTICE LABARGA’S DISSENT
Juarez declined to comment on Justice Labarga’s forceful dissent, but said, “It’s evident that the majority’s decision is simply out of sync with where we are as a nation on these issues and where the majority of members of the Florida Bar are today.”
He said the Florida lawyers who adopted the CLE diversity rule “are in sync with how most lawyers these days are thinking about these issues, to ensure that we become a more inclusive profession than we historically have been.”
A response to the April decision from Michael Gelfand, a member of the Florida Bar Board of Governors, sided with Juarez’s assessment. “Unfortunately, the message received by many is that the Court does not value diversity,” he wrote.
CLE is crucial for the state’s 90,000 attorneys and the ABA is an active CLE provider. Florida lawyers must complete at least 33 hours of approved courses every three years. The programs help with networking and professional development – teaching one enhances 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 2,893 CLE programs in Florida, according to a court document.
The difference between the Supreme Court’s April decision and Thursday’s is that the court better explains itself while reminding The Florida Bar that it alone makes the rules.
A ‘QUOTA,’ MAJORITY SAYS
“We measured the policy against ‘basic American principles of nondiscrimination,’ and we acted under our general authority to set the rules that govern The Florida Bar,” the unsigned majority opinion states.
“The rule amendment reflects this Court’s policy decision to disassociate The Florida Bar’s CLE infrastructure from program sponsors that use discriminatory quota policies like the one at issue,” it says.
What the sponsors, in this instance the Florida Bar’s Business Law Section, called diversity, the court deemed a quota. “The Section’s policy requires a minimum percentage of ‘diverse’ CLE program panelists. In doing so, the policy necessarily caps the allowable percentage of non-diverse panelists,” the court explained.
“Non-diverse” panelists are white males. This line of reasoning evokes the 1978 U.S. Supreme Court decision in University of California v. Bakke, which upheld the principle of affirmative action but disallowed some specific racial quotas.
In defining “quota,” the Florida justices quoted the American Heritage Dictionary. They did not draw upon the established body of affirmative action law that courts generally use when crafting such rulings.
The court concluded the Business Law Section went too far when it required diversity in panels that teach CLE courses. The section had adopted the ABA’s CLE diversity policy.
The justices responded to lawyers’ concern that they are being forced to forgo valuable ABA courses by expressing the hope that the ABA will come to see the error of its ways, allowing Florida lawyers to partake once again.
“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,” their opinion states.