The American Bar Association, ever vigilant that diversity and inclusion be the primary goal of its existence, crafted a mandate that its Continuing Legal Education panels contain the “correct” distribution of race, gender and orientation demographics, or else.

The ABA policy said the association expects all its sponsored or co-sponsored CLE programs to include members of diverse groups based on race, ethnicity, gender, sexual orientation, gender identity and disability.

The ABA policy said CLE programs with three or more panelists, including the moderator, must have at least one member from 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.

Its mantra received the glowing endorsement of all twelve of its remaining dues paying members.

The ABA told the state supreme court in July that its Diversity & Inclusion CLE Policy is one of inclusion, not exclusion, and was designed to help engage diverse lawyers who historically may not have had opportunities to participate on CLE panels.

The Florida Supreme Court did not show sufficient appreciation of the “inclusion, not exclusion,” slogan, by rejecting the provision of CLE credit for any program that involved a panel that required a diversity quota. Cool slogans notwithstanding, racial quotas are still racial quotes, whether imposed for putative benevolent purposes or not.

Is diversity on CLE panels a bad thing? Of course not, and there was good reason to address a problem that arose from the long-standing nature of organizations, like the ABA, where the people putting together programs, “leaders” in the organization, put their friends on panels both as a friendly gesture and because they didn’t know who else to pick. The theory was that old white dudes mostly hung out with other old white dudes, and those were the guys who sat on the dais and did the law-talking. The theory proved fairly sound.

Why does it matter? Because the guys doing the talking were presumed to be the guys who knew what they were talking about. It boosted their recognition, making them the “experts” on a subject when their expertise might be closer to having lunch with the person running the CLE.

At the same time, people who were highly skilled, knowledgeable and deserving of some recognition, didn’t get a seat on the panel because it was filled with the butt of some old white dude. These might be black lawyers, women, gay or some other lawyer from a marginalized demographic who did the work to deserve to be asked to speak, to teach, other lawyers but lacked the foremost qualification. They weren’t buds with the guy who picked the panel.

To remedy this inequity, the ABA crafted a panel mandate to force anyone putting on a CLE under its auspices to work harder to find diverse lawyers beyond their lunch table. Mind you, not all white or male or straight lawyers automatically found a seat on the panel. Most of them didn’t hang with the panel picker either, but they were not of concern to the ABA. It was the “historically excluded” at issue, and so they were the only focus.

The problem was real, even if somewhat myopic. There were institutional pressures against putting on a CLE with panelists no one wanted to hear because they lacked the skills, experience or knowledge that made their words interesting and worthy. But then, if marginalized lawyers had no high profile among lawyers, it’s not as if anybody would pay to go to a CLE to listen to them either. Recognition, or lack thereof, was something of a vicious circle.

So the ABA’s purpose was, for the most part, a reasonable and benevolent effort to help lawyers who deserved to be on a panel and get the recognition within the profession they deserved? Absolutely. Sure, it takes some effort to look beyond your lunch table for CLE panelists, but make the effort. Bring in the best people rather than your friends. And some of those best people are diverse.

As an aspirational goal, this is great. But the ABA didn’t trust its CLE people do the hard work, or ignore their pals, so they went quota instead, pretending it wasn’t quotas because the purpose was “inclusion, not exclusion.” Upon reconsideration, the Florida Supreme Court called bullshit.

The policy treats people differently (i.e., discriminates) based on their membership in groups defined by “race, ethnicity, gender, sexual orientation, gender identity, disability and multiculturalism.” Our laws consider it presumptively wrong to discriminate on these grounds—especially when government does the discriminating, but also in many contexts involving discrimination by private entities.

We reject the notion that quotas like these cause no harm.

Facile slogans may be all the rage, but Inclusion of some by dint of their race is exclusion of others because of race. When diversity becomes a requirement, a mandate, rather than an aspirational consideration, it’s a quota, no matter how pretty the bow you tie around the package. And what came of the ABA mandate wasn’t all that pretty.

The ABA’s submission to the Court indicates that it administers its diversity requirement this way: “Program planners ask potential speakers to voluntarily answer the following question: Do you identify yourself as diverse?”

Granted, potential speakers aren’t compelled (how would they be?) to out themselves if they choose not to. Then again, if they don’t proclaim themselves “diverse,” then they don’t get the gig.

A person’s answer to this question is then used to determine how to categorize a person
(nondiverse or diverse) for purposes of compliance with the diversity policy. This approach smacks of stereotyping or naked balancing; it does not invite a “holistic” assessment of whatever unique perspective an individual might bring to a panel.

This “unique perspective” rationale raises another issue. Do you want to take a cross-examination CLE from someone with a “unique perspective” or someone who knows how to do a killer cross? Which would your clients prefer you to take?

Putting aside the efficacy of CLEs at all, yet another theoretically good idea that have failed miserably, it seems that the point of continuing education has been lost to the well-intended, that it’s not to give diverse lawyers the opportunity to become “important” lawyers, but to help lawyers to better serve their clients. If there are great lawyers of diverse demographics who can do this, then they should certainly be on the panel, not because of quotas but because they are great lawyers who can make the rest of us better.