A while back, I read a post about how young lawyers can promote themselves by getting gigs at Continuing Legal Education presentations to show off for older lawyers, the ones with business to refer out. The irony, of course, was that it neglected to explain what a lawyer who had no clue could teach a lawyer who did, but since the baby lawyers who read drivel can’t think that hard, nobody noticed.
But since the wall of required CLEs had broken free of competent content, the ABA saw the opportunity to push its agenda into the mix.
In June 2016, in response to the efforts of the ABA’s “Diversity & Inclusion 360 Committee,” the ABA Board of Governors adopted a new ABA Rule for all ABA-sponsored Continuing Education (CLE) Programs. The ABA intends that this new rule be mandatory, not aspirational. It will “take effect March 1, 2017.”
This new rule does not remove barriers to equal opportunity nor does it promote intellectual diversity. Instead, this rule imposes a requirement that each CLE panel has “diversity” based on sexual orientation, gender identification, and so forth.
In the olden days, CLEs were put together based on time-honored traditions: who licked enough envelopes at the bar association’s office to be rewarded with an opportunity to present at a CLE and get a few hours whacked off his obligation. There also had to be a few speakers whom people actually wanted to see or no one would come. The sad news was that if you put a bunch of n00bs on a panel, they would outnumber the audience because nobody would waste their time, or pay good money, to listen to the clueless be clueless.
Now, there are quotas.
Individual programs with faculty of three or four panel participants, including the moderator, will require at least 1 diverse member; individual programs with faculty of five to eight panel participants, including the moderator, will require at least 2 diverse members; and individual programs with faculty of nine or more panel participants, including the moderator, will require at least 3 diverse members.
Bear in mind, the word “diverse” doesn’t deal with thought, as in balancing someone with a conservative perspective with someone who sees the world through progressive eyes. That would be wrong. Diverse means that the speaker might go home that night and have sex with someone you wouldn’t, which certainly demonstrates the ability to teach you something.
Note that the favored groups include “race, ethnicity, gender, sexual orientation, gender identity, and disability.” That language leads to the first problem: this new rule is poorly drafted. One would think that lawyers would be good at drafting language, particularly drafting language about practicing law. As individuals, we all are members of some race and some ethnic group. We all have some sexual orientation.
Ronald Rotunda takes the ABA to task, even though its rule was the product of the ABA’s most brilliant legal and academic minds, putting the totality of their brainpower and energy to work to make the legal world perfect. He offers a rather interesting discussion surrounding the invitation to speak:
ABA: We’d like to invite you to be on our October panel on estoppel rules in patent law. I understand your new article on this issue is brilliant.
PANELIST: Thank you so much. I’d love to attend. I’ve completed additional empirical research since then and I’d be pleased to share that with your audience.
ABA: Great. Tell me, what is your sexual orientation?
PANELIST: Excuse me! What I do in my bedroom is none of your business.
Of course, that conversation only happens if the starting point is competency. And for obvious reasons, it ends poorly. This unsurprisingly eludes those who support such initiatives that mandate diversity.
The organizing panel at the recent U.S. Feminist Judgments/Constitutional Law Conference deliberately composed panels with something like this in mind. And it made all the difference both representatively and substantively. Seeing and hearing a diversity of people and ideas, opened up the debate from both panelists and audiences, and literally changed the discussion.
But the ABA Rule doesn’t even go this far. Under the new rule, typical panels of four can still include three white men, with then one token diversity member competing from among many different groups. It retains, rather than subverts, the majority status. That it triggers such opposition shows only how much it is needed.
While I question whether Tracy Thomas’ “diversity of . . . ideas” means what she thinks it does, who wouldn’t want to hear her views given the depth of her argument for diversity? After all, if a panel of four under the new ABA rules still allows for three to be white males (she doesn’t mention cis, but then, do you really need her to spell everything out for you?), how much clearer can the trigger be?
At one point, long ago, there was an idea that society, and the law, would get past identitarian exclusion, where law firms would hire the best lawyers, regardless of gender, race or religion. The notion then was to achieve diversity by eliminating exclusion. So quaint.
Instead, we’re now faced with mandatory inclusion. Of course, there really need to be notations on those cool name cards in front of panelists, like “Joe Smith, Queer Black Guy,” or “Sarah Jackson, Intersectional Transfluid.” And for the token cis white male, “Harold Jones, Shitlord.” Truth in advertising. How else could we be assured that the panel met the mandatory ABA requirements, or know what we’re to learn from their diverse perspectives if we don’t know what their perspective are?
Does it really matter whether the person teaching you law knows what he, she, xe, flea, is talking about? Won’t you rush to sign up, and shell out some coin, to assure that underrepresented, even marginalized, people get the opportunity to be on CLE panels, even if they have nothing to offer.
And if you’re asked to be on a CLE faculty, isn’t it worth it to be questioned by some official bar guy as to where your genitals have been? You may need to provide pics to prove it, as some young lawyer may try to sneak onto a panel by claiming to be lesbian when he’s not. Those baby lawyers can be very sneaky. Anything for a buck.