Court reaffirms rule barring CLE credit for programs that employ quotas

Court reaffirms rule barring CLE credit for programs that employ quotas

The Florida Supreme Court ratified its amendment of a Bar rule banning quotas for speakers and panelists at Bar-approved CLE programs and clarified that credit will not be awarded regardless of whether it is the sponsor or the individual lawyer who applies if the program organizers employ quotas.

The court, however, delayed the amendment’s effective date until January 1.

Justice Jorge Labarga dissented from the December 16 per curiam opinion, saying the policy was not a quota system and promoted diversity.

The court on its own motion amended Bar Rule 6-10.3 on April 15 in response to a Business Law Section policy requiring a minimum number of “diverse” faculty for its CLE programs.

The court said the policy was setting a quota, something prohibited under court precedents, and it amended the Bar rule to prohibit it. Shortly afterwards, the Bar began rejecting CLE credit for courses from any provider with a similar policy for CLE faculty. Particularly affected were courses from the ABA, which had adopted its own CLE speaker diversity policy in 2016.

The Business Law Section policy, which has since been repealed, was based on that ABA policy.

The court accepted comments on the revised rule, which was effectively immediately, because it had not given prior notice of the rule change.

More than 40 lawyers and legal organizations, including several Bar sections and the ABA did file comments, almost all calling on the court to reconsider or change its April 15 action. Some argued the policy should apply only to the Bar and its sections, and not CLE programs provided by outside entities.

But the court majority declined, making only minor tweaks.

“[I]n 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,” the court said. “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.”

The court reiterated that it considered the section’s policy as imposing quotas because it requires different treatment of people based on gender, ethnicity, race, sexual orientation, gender identity, disability, and multiculturalism. Quotas, it said, are not allowed under legal precedents and “are antithetical to basic American principles of nondiscrimination.”

In deciding to address the section’s action, the opinion said, “[W]e reached two basic conclusions: first, that it would be wrong for the Court to turn a blind eye to this sort of discrimination; and second, that any regulatory response should address the use of discriminatory quotas by any CLE course sponsor, regardless of its affiliation with The Florida Bar. This Court has limited authority over the policies of entirely private entities, and rightly so. But we do have the authority — and, we think, a duty — to disassociate The Florida Bar’s CLE infrastructure from entities with discriminatory quota policies like the one here.”

The opinion also addressed the “negative” comments it received including that the court did not have authority to address the issue since it had no case in controversy.

“[W]e 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 opinion said. “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.”

The court also rejected the contention the policy caused no harm and did not set quotas because it encouraged the expansion of CLE faculty instead of replacing other participants. The majority said the policy met the definition of quotas, which ignore individuality, promote stereotypes, and “sow division.”

The opinion also said neither the ABA nor the Business Law Section policy connected the “diversity” of a presenter with the content of the CLE program. It further noted the ABA policy asks potential presenters if they consider themselves “diverse” and then uses that to determine compliance with the diversity policy.

“This approach smacks of stereotyping or naked balancing; it does not invite a ‘holistic’ assessment of whatever unique perspective an individual might bring to a panel,” the court said.

Finally, the court agreed that ABA education programs are important to lawyers and noted the rule does not prohibit attending an ABA course.

“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,” the court said.

The court said it extended the deadline because of valid concerns that Bar members didn’t have sufficient notice that ABA or other courses would not be approved under the rule amendment or had invested time and energy in a course that had not been approved.

In his dissent, Labarga said the court’s action “will undoubtedly culminate in the erosion of the judicial branch’s need and well-established policy of promoting and advancing diversity and inclusiveness throughout the branch.”

He agreed with an ABA comment that the questioned policy was not a quota because it expanded panels, did not displace anyone, and there was a waiver available if sponsors could not locate diverse faculty. Labarga also cited arguments from the Virgil Hawkins Florida Chapter of the National Bar Association that Bar members, including Black lawyers, should have discussed the rule change and had input before it was made.

“[N]umerous comments also expressed concern that the majority amended rule 6-10.3 on its own motion,” Labarga wrote. “While the majority today reasserts its authority to do so, it is noteworthy that the unilateral action the Court takes here is not isolated. 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.

“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.”

Commenters on the rule included individual attorneys who said they had taken ABA courses and then couldn’t get CLE credit from the Bar and questioned whether the original rule amendment applied to ABA courses. The Public Interest, Criminal Law, Health Law, Business Law, International Law, and Family Law sections, several voluntary bars, a consortium of law school deans, and the ABA all filed comments questioning the court’s rule amendment or asking for changes.

The court acted in In re: Amendment to Rule Regulating The Florida Bar 6-10.3, Case No. SC21-284.

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