The American Bar Association Adopts Yoo’s Rationalization or “It Isn’t What It Is”

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To be fair, “It isn’t what it is” is an argument lawyers are trained to make, but this is especially glaring.

The Florida Supreme Court recently voted to prohibit the approval of continuing legal education credits for any CLE program with diversity “quotas.” This was a broadside at the ABA, which in 2017 approved a Diversity & Inclusion CLE Policy that requires all its sponsored or co-sponsored CLE programs with three or more panelists, including the moderator, to have at least one member of a a “diverse group.” Programs with five to eight panelists must have at least two diverse members and programs with nine or more panelists must have at least three diverse members. This will supposedly help accomplish the ABA’s Goal III , which aims to eliminate bias and enhance diversity in the profession.

There is a disconnect here, since the only purpose of continuing legal education is to do as good a job as possible keeping lawyers abreast of the law and developments in their profession. Does the skin color, gender, ethnicity or other characteristics of the CLE instructors and trainers advance that purpose in any way? I don’t see how, and neither did the court, which wrote in part,

“Quotas based on characteristics like the ones in this policy are antithetical to basic American principles of nondiscrimination. It is essential that the Florida Bar withhold its approval from continuing legal education programs that are tainted by such discrimination.”

The ABA yesterday filed a rebuttal to the Florida Supreme Court’s April, 2021 order. In its brief, the ABA argues that its Diversity & Inclusion CLE Policy is one of inclusion, not exclusion. Oh! Now that you put it THAT way! You see, the quotas will “help engage diverse lawyers who historically may not have had opportunities to participate on CLE panels” and “does so without infringing on constitutionally protected individual rights”!

Well, yes, there is no constitutionally protected right to be on an ABA CLE panel as a volunteer. But the ABA measure is obviously a quota by definition, and if it requires one member of a three person panel not to be a white male, which it does, white males are excluded from 33% of such panels. The ABA’s argument could be used to claim that no discrimination involves “exclusion” with equal logic, which is to say, none except the Orwellian kind: Exclusion is Inclusion.

7 thoughts on “The American Bar Association Adopts Yoo’s Rationalization or “It Isn’t What It Is”

  1. I took an online CLE about LGBTetc law, and was surprised and amused to find that all of the presenters were required to testify to their experiences, like in an old-time prayer meeting. Because of that, the session ran about ten minutes long, leading to the question: do you dare to tell such people that they have an obligation to wrap up on time? I decided to live dangerously, and did put that in my review, and now I just wait….

    • I watched a presentation hosted on skype by my college. The topic was diversity related, perhaps discrimination or affirmative action. There was a moderator from the college’s faculty or administration, I forget which, and four panelists. One of the panelists was Jason Reilly, one of two black guys on the panel. The moderator and everyone but Jason Reilly were super lefty on the topic. Given his chance to say something 0he was last in line), Jason Reilly opened by saying, to no reaction from anyone, “This is what diversity is on a college campus: four liberals and a conservative.” He went on from there but I was mostly struck by the clear fact the skin color or ethnicity of the panelists added absolutely nothing to the quality of the discussion by the female, Taiwanese and black panelists. The only thing that mattered was the quality of their ideas and expertise. The purported “diversity” of the panelists was a total non-factor.

  2. I lost what little respect I had the the ABA in the early 2000s when they published an edition celebrating and promoting reparations. I canceled my membership at that moment. When they called me to renew, I told them why in no uncertain terms, especially considering that the edition did not have a counter viewpoint challenging the underlying logic of reparations.

    jvb

  3. Interesting. I wonder: if diversity is a goal, then would a gay, black, transgender, disabled, Muslim speaker fill enough boxes to open the remaining spaces to non-diversity speakers?

    Inquiring minds want to know.

    jvb

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