By Noreen Marcus, FloridaBulldog.org
In line with the “anti-woke” overhaul of Florida’s public education system, the state’s highest court wants lawyers and judges to stop studying diversity.
The Supreme Court delivered that message most recently by defunding a Florida Bar diversity committee and canceling a lawyers’ diversity course, both of which it did entirely on its own.
The justices avoid asking for buy-in from the organized Bar the way University of Florida President Ben Sasse ignored his faculty before he cut all diversity-related campus programs and 28 jobs on March 1.
The high court’s diversity training purge is one of many examples of the justices making unilateral decisions about matters of great public impact. While not exceeding their authority, they dodge constraints that were honored routinely before Gov. Ron DeSantis turned the state’s most powerful court into an instrument of conservative activism.
Five years into his administration, the Supreme Court has abandoned several time-tested, standard operating procedures.
The justices have changed consequential rules without waiting for lower courts to develop the underlying issues. The high court wields its power to regulate the Bar inflexibly instead of acknowledging lawyers’ concerns before taking action.
‘IT’S BEYOND ME’
“A lot of lawyers are really angry that they have no say in the rules imposed on them by the Supremes,” said a close observer of the court, a lawyer speaking anonymously to avoid potential discipline for criticizing judges.
Tallahassee appellate lawyer Philip Padovano says he’s not angry. The former appeals court judge is perplexed about why the Supreme Court dropped diversity training.
Padovano told Florida Bulldog he doesn’t understand the court’s decision to end the longstanding practice of schooling new judges in diversity, equity and inclusion.
“I don’t know why we would not want to have our judges receive courses on fairness and diversity,” he said. “Why would we not want that? It seems to me that fairness is the ultimate quality of a judge.”
Padovano said he taught and benefited from those courses. “Why wouldn’t we want to be aware, for example, of things that Hispanic jurors or witnesses find offensive? It’s beyond me.”
The Florida high court has walked back several efforts to expand diversity awareness within the bench and Bar. The court presents these moves as correctives to reverse discrimination; they reflect the U.S. Supreme Court’s negative findings on affirmative action.
“The Florida Bar … is a governmental entity. This makes it incumbent on the Bar, as with the state courts, to treat all members and all people equally with fairness and without bias,” Florida Supreme Court spokesman Paul Flemming told Law360 in January.
TACKLING ABA ‘QUOTAS’
Flemming was explaining why the court had just pulled funding from the Florida Bar Diversity and Inclusion Committee. This year’s Bar budget listed $496,541 for the committee and the Wm. Reece Smith Jr. Leadership Academy.
The committee supported conferences, seminars and other gatherings hosted by local Bar associations. Its mission was to “encourage diversity, diversity training and dialogue among lawyers in Florida,” according to the Bar’s website.
The academy is a training program “designed to help a diverse and inclusive group of lawyers become better leaders,” the Bar website says.
It’s being absorbed into the Supreme Court’s Henry Latimer Center for Professionalism, according to Bar spokesperson Jennifer Krell Davis. The budget for the fiscal year beginning July 1 includes $127,559 for the academy, she said.
In April 2021 the Supreme Court took a controversial swipe at diversity by revising continuing legal education (CLE) rules for lawyers. The court “sua sponte” – meaning on its own motion – declared that Florida lawyers could no longer earn required CLE credits for American Bar Association courses.
The ABA set unacceptable “quotas” for course instructors, the court said. The ABA and the Florida Bar’s business law section had wanted CLE faculties to represent all races, genders, ethnicities and viewpoints.
Both the ABA and the Bar section backed down.
NO BIAS-BUSTING CLASSES
Then the Supreme Court attacked content by removing a course on “bias elimination” from the list of CLE requirements for lawyers and by scrubbing a “fairness and diversity” course from approved topics for judicial education.
The court didn’t invite comments from the Bar, as is customary, before cutting “bias elimination.” It asked for comments after the fact and then, following the comment period, reiterated on Feb. 29 its earlier ruling, which had already gone into effect on Jan. 8.
Justice Jorge Labarga dissented to the Feb. 29 decision. He restated the dissent he wrote when the rest of the court removed “fairness and diversity” from approved judicial studies.
“I continue to believe that fairness and diversity education is of great benefit to Florida’s judiciary and those who interact with Florida’s state courts,” Labarga wrote.
It addresses “the extremely complex issue that is discrimination” and informs judges about “strategies for recognizing and combating discrimination,” he wrote.
RULES AND MORE RULES
The Supreme Court must review death penalty, lawyer discipline and a few other types of cases; otherwise it has broad discretion about how to fill its docket.
Some cases raise substantive issues of individual rights such as privacy and free speech. Others raise procedural issues, the mechanics of effectuating — or trampling upon — those rights.
The court also has leeway to determine whether a case is substantive or procedural. This can be a matter of perspective: One judge’s civil right is another judge’s technical abstraction.
The distinction is important because while a procedural case can be decided with an opaque numerical rule, a substantive case requires expressing an opinion and setting a precedent for future reference.
Increasingly, the Supreme Court opts for using rules to resolve matters the justices deem procedural, according to appellate lawyers. And the court often announces these new or revised rules on its own initiative, without warning and even though no litigant asked it to weigh in.
RULES FAVOR BUSINESS
So the Supreme Court has, to some extent, changed the way it does business.
Appellate lawyers say the widespread use of judge-made rules is unusual. In the past such rules were rarely used — they might come into play, for instance, to meet a deadline.
A sampling of data from court records makes the point. Last year the Supreme Court published 121 decisions and of those 64, or 53 percent, adopted or revised rules. By contrast: In 2013 the court published 275 decisions and of those 34, or 12 percent, adopted or revised rules.
Padovano, the former appellate judge, wouldn’t speculate about the motive for all that rule-making. He doesn’t question the justices’ authority to write as many rules as they like.
He did, however, identify a trend: The new or retooled rules favor business interests. Padovano cited recent rules that change procedures for medical malpractice cases, for pursuing punitive damages and for winning summary judgments.
“In every one of them,” he said, “the effect of these rules is to help business and to hinder the ability of plaintiffs to take their cases to court.”
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