ABA submits response to Florida Supreme Court’s ban on 'quotas' in CLE panels
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The ABA on Thursday filed comments in response to the Florida Supreme Court’s recent decision to prohibit the approval of continuing legal education for any program with diversity “quotas.”
In its brief, the ABA wrote that its Diversity & Inclusion CLE Policy is one of inclusion, not exclusion, and was designed to help engage diverse lawyers who historically may not have had opportunities to participate on CLE panels.
“The policy does so without infringing on constitutionally protected individual rights,” the association added.
An ABA press release is here.
The ABA’s Diversity & Inclusion CLE Policy requires all its sponsored or co-sponsored CLE programs with three or more panelists, including the moderator, to have at least one member from a diverse group. It also requires that programs with five to eight panelists have at least two diverse members and programs with nine or more panelists have at least three diverse members.
The policy, which was implemented in March 2017, references the ABA’s Goal III to eliminate bias and enhance diversity in the profession.
On April 15, the Florida Supreme Court issued an order banning CLE course approval for any program “that uses quotas based on race, ethnicity, gender, religion, national origin, disability or sexual orientation in the selection of course faculty or participants.”
The court amended the state rule on CLE accreditation after the Florida Bar’s Business Law Section enacted a diversity policy for CLE panelists. The section policy is substantially the same as the ABA’s policy, according to a May 24 post on the association’s website.
The Florida Bar interpreted the opinion to mean that all the ABA’s CLE programs that weren’t approved before the court’s order would be ineligible for credit in the state.
In its brief, the ABA pointed out that its Diversity & Inclusion CLE Policy “does not create impermissible quotas” and was “precisely engineered to ensure fairness and inclusion.”
After a panel is assembled and the policy is satisfied, its program moves to the next stage of the CLE approval process, the association said. If, however, the panel does not include a diverse member, the panel can add someone who does bring diversity.
The ABA adds that entities can also apply for waivers of the policy. There have been eight waiver requests since the policy went into effect. Two were granted but the others were withdrawn because the panels already included diverse members or subsequently added diverse members.
The association included in its brief comments from Theodore M. Shaw, a former professor at the University of Michigan Law School who was involved in initiating a review of the student admissions policy—which was later upheld by the Supreme Court in Grutter v. Bollinger in 2003.
“No one has been excluded from ABA CLE programs,” Shaw said. “No one is denied an opportunity to serve as a CLE faculty member as a result of the ABA inclusion policy.”
The ABA wrote that even though its Diversity & Inclusion CLE Policy did not offend Supreme Court jurisprudence, it had reconsidered it “from the ground up” after the Florida Bar’s application of the court order barred its CLE programs from accreditation.
The association proposed revisions to its policy to conform its language to the way it had always operated. The new language reads: “This is a policy of inclusion and not exclusion. To that end, if a CLE panel is not otherwise diverse, program organizers will add panel participants who bring diversity to achieve the goal of this policy.”
The ABA also said in its brief that it has presented more than 2,800 programs that offered CLE credit to Florida-licensed lawyers since March 2017. Within those programs, more than 8,400 sessions satisfied its Diversity & Inclusion CLE Policy.
“Denying Florida lawyers access to the ABA’s trove of CLE programs, based on a Diversity & Inclusion Policy that neither disadvantages anyone based on impermissible classifications nor creates improper diversity ‘set asides’ would be a disservice to Florida Bar members,” the association said.