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.