The Business Law Section of the Florida Bar adopted a policy regulating the composition of faculty at section-sponsored continuing legal education programs. Subject to certain exceptions, the policy imposed quotas requiring a minimum number of “diverse” faculty, depending on the number of faculty teaching the course. The policy defined diversity in terms of membership in “groups based upon race, ethnicity, gender, sexual orientation, gender identity, disability, and multiculturalism.”
I’m happy to report that the Supreme Court of Florida, on its own motion, has tossed this quota arrangement. It stated:
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. Cf. Grutter v. Bollinger, 539 U.S. 306, 334 (2003) (“To be narrowly tailored, a race-conscious admissions program cannot use a quota system . . . .”); Regents of University of Cal. v. Bakke, 438 U.S. 265, 307 (1978) (numerical goal or quota “must be rejected” as “facially invalid”). It is essential that The Florida Bar withhold its approval from continuing legal education programs that are tainted by such discrimination.
Accordingly, the court amended the state’s rule on continuing legal education to include this language:
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.
Six judges signed this opinion. One judge wrote a concurring opinion in order “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.” Can you say virtue signaling?
One judge dissented on the theory that “a simple letter directed to the Business Law Section, communicating that [its] action may be in violation of United States Supreme Court precedent, would have sufficed.” Maybe yes, maybe no.
No judge defended the legality of the quota.