On April 15, 2021, the Florida Supreme Court issued a per curiam opinion amending Florida’s CLE accreditation standards. See In re: Amendment to Rule Regulating the Florida Bar 6-10.3, No. SC21-284 (Apr. 15, 2021). The Court’s amendment to Rule 6-10.3(d) explicitly prohibits the board of legal education from approving any course submitted by a sponsor that uses quotas based on protected classes such as race, ethnicity, or sexual orientation in the selection of course faculty. See Rules Regulating the Florida Bar, r. 6-10.3(d).
The Florida Supreme Court amended Rule 6-10.3(d) to address a recently adopted—and potentially unconstitutional—practice of the Business Law Section of the Florida Bar. The Business Section of the Florida Bar approved a policy regulating the composition of faculty at section-sponsored continuing legal education programs. Specifically, subject to certain exception, the policy imposed quotas requiring a minimum number of “diverse” faculty. Further, the policy defined “diversity” in terms of membership in protected classes such as race, ethnicity, gender, sexual orientation, gender identity, disability, and multiculturalism.
The Florida Supreme Court noted the Bar’s important contributions to the legal profession and acknowledged the laudable objectives underlying the diversity policy at issue. However, the court emphasized that “[q]uotas based on characteristics like the ones in this policy are antithetical to basic American principals of nondiscrimination.” See In re: Amendment to Rule Regulating the Florida Bar 6-10.3, No. SC21-284 at 2 (Apr. 15, 2021). For this reason, the court amended Rule 6-10.3(d) to provide as follows:
Rule 6-10.3. Minimum Continuing Legal Education Standards (a)– (c) [No Change] (d) Course Approval.
The board of legal specialization and education may not approve 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.
See Rules Regulating the Florida Bar, r. 6-10.3(d).
On July 15, 2021, the American Bar Association filed comments in response to the Florida Supreme Court’s decision prohibiting the use of “diversity quotas” in the selection of CLE course faculty. See In re: Amendment to Rule Regulating the Florida Bar 6-10.3, Comments of the American Bar Association. The press release discussing the ABA’s response can be found here: ABA Responds to Florida Supreme Court Opinion on ‘QuotaS’ in CLE Programs (July 15, 2021). The ABA’s comments address the ABA’s CLE Diversity and Inclusion Policy, which is substantially similar to that enacted by the Florida Bar Business Section. In its comments, the ABA argued that its policy is one of inclusion, not exclusion. Further, it argued that its policy does not call for the displacement or replacement of CLE panel members. Rather, it requires CLE organizers to add individuals who would bring diversity to CLE programs. For these reasons, the ABA contended that its Diversity and Inclusion CLE Policy does not violate any constitutional provisions.
Nevertheless, the ABA re-examined its policy “from the ground up” in the wake of the Florida Supreme Court’s action. Ultimately, it amended its policy to reflect how it contends that its policy has worked in practice. The amended ABA policy now reads as follows: “This is a policy of inclusion and not exclusion. To that end, if a CLE panel is not otherwise diverse, program organizers will add panel participants who bring diversity to achieve the goal of this policy.” Id.