Seriously? Will this ruling stand? Can it? Should it?
The Superior Court of New Jersey’s Appellate Division ruled Dec. 20 against Rajeh A. Saadeh in his lawsuit alleging that the New Jersey State Bar Association had violated the New Jersey Law Against Discrimination. The NJSB has a diversity policy that reserves 13 out of 94 leadership positions for members of specified underrepresented groups. Saadeh is a Palestinian Muslim American attorney, and his group didn’t make the cut. He argued that this was discriminatory, while the bar association argued that it had a First Amendment right to select leaders “consistent with its values regarding diversity in the legal profession.”
The Appellate Court overruled a trial judge who had held that the diversity program was an illegal quota system under New Jersey law. “[T]he undisputed facts in this record establishes beyond peradventure that the bar association qualifies as an expressive association, and that compelling it to end its practice of ensuring the presence of designated underrepresented groups in its leadership would unconstitutionally infringe its ability to advocate the value of diversity and inclusivity in the association and more broadly in the legal profession,” the appeals court said. Since the ruling was that the discriminatory policy was protected speech, it did not even address the question of discrimination.
[Two side points: 1) I have an automatic prejudice against any judge, or anyone, who uses the term “peradventure” and 2) I will not forgive the NJSBA for firing me after years of providing it with (acclaimed, profitable and discounted!) musical ethics CLE programs because I exclaimed “Fuck!” a single time to no one in particular in a moment of frustation during a tech check on Zoom when the bar association’s technical staff proved that it had no idea what it was doing.]
Your Ethics Alarms Ethics Quiz of the Day…
Is that an ethically defensible decision?
Then defend it, please.
Never mind the law: I see the ruling as a court dishonestly using a clearly invalid standard to justify DEI discrimination. I think the decision is obviously a biased exercise in trying to justify woke prejudice that is clearly unjustifiable. Prejudicial policies are simply free speech! I did not know that!
Bullshit.
But you may disagree…
Ethics Alarms 
In short, the only way the ruling was ethical or even legal would be if the program had zero operational effect. Policies are not free speech and are subject to review, especially when an opposing argument could be made that the policy was compelled speech.
This might be what Dr. Blae is getting at, but, if the policy only pays “lip service” to discrimination, you can’t stop it from doing so because “lip service” is just free speech.
(Of course, by defending its right to SELECT such people, the bar association is saying it is not just lip service.)
I wonder if what is going on here is that, if this policy is overturned, it would lead to the elimination of all of the other niche groups (black lawyers association, women lawyers, etc.).
-Jut
Let me see if I understand this. The plaintiff argued that he should be in leadership because there is a DEI policy but because he did not make the cut therefore it was discriminatory. I am assuming the slots were filled with other underrepresented minorities. The trial judge said the DEI policy was discriminatory and therefore illegal and therefore the plaintiff could not argue that he was discriminated against because the policy that allowed discrimination in favor of minorities was invalid. So the plaintiff appealed and was arguing that a policy allowing discrimination discriminated against him because he did not benefit from the policy that was in effect discriminatory in a manner that would have given him an advantage.
The appellate court ruled that the DEI policy was valid because it was speech and not a violation of equal protection because the bar was promoting free speech. How does an immutable characteristic promote free speech when they are all products of similar academic institutions unless they each advocate for their own parochial racial and cultural interests. Are these people the same ones claiming we are a democracy? Why don’t they just let the majority rule.
And people wonder why lawyers are not held in high regard in general.
Chris wrote, “The appellate court ruled that the DEI policy was valid because it was speech and not a violation of equal protection because the bar was promoting free speech.”
Why, then, are Jim Crow laws illegal and unconstitutional? By the appellate court’s logic, such laws should be protected under the First Amendment.
jvb
It’s almost too easy to make fun of that ruling. It is unbelievably obtuse.
JVB
I was not arguing for the appellate court’s ruling I was restating my understanding. This whole thing is down right confusing. One side is demanding to allow discrimination because it benefits him NOW but gets upset when the whole concept of discrimination is ruled invalid and the other side (lawyer’s association) wanting to discriminate under the idea that is free speech is the one being sued for their policy that discriminated against someone who was demanding that they discriminate against others .
It takes a special kind of stupid or intelligence to come up with such an argument or understanding of such arguments. Either there is more to this than meets the eye or this makes no sense what so ever.
Well I guess this means New Jersey can legally have separate water fountains for “colored” folk because IT’S JUST FREE SPEECH and in support of the “diversity and inclusivity” goals of allowing underrepresented groups to have their own safe spaces!
–Dwayne
P.S. I got a good chuckle while writing this when I discovered that the spell-check in Mozilla Firefox doesn’t recognize “inclusivity” as being a WORD.
Thanks for that analogy, DZ. I was about to go down that road but was afraid that once started, I wouldn’t be able to stop.
I was trying to find a way to defend this and I think I found one. You won’t like it, but it IS a defense of it.
The left loves to discriminate. It always has. From slavery to Jim Crow to DEI, discriminate, discriminate, discriminate. It became illegal, but he courts allowed it because the left wanted to discriminate SO BADLY. As an example, affirmative action was obviously illegal, but allowed because they had REASONS that they wanted to discriminate. They put a time limit on it, to make it look reasonable, but then the limit went on and on and on…
Now we have reached the position where one minority group is suing because the illegal racial discrimination isn’t the CORRECT illegal racial discrimination. This guy isn’t suing because he is opposed to the illegal racial discrimination, he is suing because he wants the court to mandate the illegal discrimination scheme that he wants over the one the bar association chose!
Since the Civil War, a number of legal ideas have been used to make racial discrimination allowable. The Civil Rights movement did not change this fact, it just changed the winners and losers of this racial discrimination. This ruling is completely consisted with legal rulings from the last 50 years. I believe the courts have even ruled that some actions are illegal, but allow them anyway because…reasons. The courts have allowed a massive number of racial discrimination efforts including
government funded scholarships based on race
internships based on race
race-based college admissions
race-based hiring (affirmative action)
government grants based on race
government loans based on race
Despite being found to be illegal racial discrimination by a federal judge, the USDA has several programs for loans and grants that bar white male farmers from receiving them. These programs were passed after the ruling and will continue until at least 2029.
This ruling about the bar association is completely consisted with the vast majority of judicial decisions on racial discrimination made in the last 60 years. It may violate the law, but when have the courts cared about discrimination laws?
Michael,
Your comment makes this whole thing make more sense. Or at least, understandable. It seems that the bottom line is that those advocating for special discriminatory treatment are perfectly content with discrimination as long as it benefits them. Nothing has changed except the beneficiaries.
Michael,
You made more sense out of this than I could decipher. The bottom line is that its ok to discriminate as long as it does not affect me negatively.
I’m going to stake out the fringe position here: ALL anti-discrimination laws regarding the actions of private entities are unconstitutional. The government is bound by requirements to treat people equally, but those restrictions do not apply to non-government entities.
If the court actually ruled in a way consistent with that position, I would be flabbergasted.