Florida Modifies (Very Slightly) Its CLE No Quotas Rule

The Florida Supreme Court just entered an order concerning its controversial “no quotas” in CLE policy

Earlier this year, the Court amended the Rules Regulating the Florida Bar to preclude continuing legal education credit for “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.” In re Amendment to Rule Regulating the Florida Bar 6-10.3, 315 So. 3d 637, 639 (Fla. 2021). Although the amendment took effect immediately, the Court invited comments from interested persons. Id. at 638.

Having reviewed those comments, we have decided to modify the rule amendment in two limited respects. First, in deference to Florida Bar members who planned their 2021 CLE activities in reliance on the preamendment status quo, we postpone the effective date of the rule amendment until January 1, 2022. Second, we amend the text to clarify that CLE credit will be unavailable for courses with any sponsor that uses quotas covered by the rule, whether course approval is sought by the sponsor or by an individual bar member.

Where the issue arose

The Court amended rule 6-10.3 in response to a “Diversity & Inclusion CLE Speaker Panel Policy” that the Business Law Section of the Florida Bar adopted on September 1, 2020.

The court

We reject the notion that quotas like these cause no harm. Quotas depart from the American ideal of treating people as unique individuals, rather than as members of groups. Quotas are based on and foster stereotypes. And quotas are divisive. “It would be a sad day indeed, were America to become a quota-ridden society, with each identifiable minority assigned proportional representation in every desirable walk of life.” Grutter v. Bollinger, 539 U.S. 306, 343 (2003) (quoting Nathaniel L. Nathanson & Casimir J. Bartnik, The Constitutionality of Preferential Treatment for Minority Applicants to Professional Schools, 58 Chicago Bar Rec. 282, 293 (May–June 1977)).

Comments

With a handful of exceptions, the forty-plus comments the Court received in response to the rule amendment were negative. But we respectfully disagree with the opponents’ principal objections, and we will explain why.

The explanation did not persuade the full court

LABARGA, J., dissenting.

Today, on its own motion, a majority of this Court has embarked on a course that will undoubtedly culminate in the erosion of the judicial branch’s needed and well-established policy of promoting and advancing diversity and inclusiveness throughout the branch. Because I cannot agree with this course of action, I respectfully dissent.

 He laments

But today, despite various commenters’ extensive input and overwhelming recommendations to the contrary, the majority reaffirms the amendment to rule 6-10.3. While I wholeheartedly agree with the majority’s statement that inclusivity is a laudable goal, I also agree with the ABA that the CLE diversity policy in question here is neither a quota nor a preference system that would run afoul of existing equal protection case law, and I agree with the Business Law Section that the policy is appropriate because it is narrowly tailored and serves a compelling interest.

(Mike Frisch)