Diversity Adversity for Florida Bar

At the beginning of this year, the Florida Supreme Court directed the Florida Bar to cease funding for diversity and inclusion initiatives. This aligned with a broader judicial stance following the 2023 decision from the U.S. Supreme Court that effectively ended race-based affirmative action.

Since the decision, law schools nationwide have been facing significant challenges due to the added factor of anti-DEI legislation at the state level. These laws involve defunding inclusion offices at public universities, banning discussions of certain topics related to race, gender, or sexuality, and imposing penalties on institutions that do not comply.

A Woke-up Call

Florida, along with Texas, was particularly notorious for these laws. Florida's Stop WOKE Act mandates strict rules on how race and social justice issues can be included in public school curricula, while Texas' SB 17 prohibits public universities from maintaining inclusion offices and limits scholarships related to race, gender, and sexual identity. These laws create challenging environments for DEI efforts, particularly affecting law schools' curricula, programming, and campus climate.

In March, the 11th Circuit Court of Appeals ruled parts of Florida's Stop WOKE Act unconstitutional, citing it as viewpoint discrimination violating the First Amendment. The law, aimed at banning certain mandatory workplace training on race, gender, and inclusion, was deemed to infringe on employers' free speech rights. The DeSantis administration, disappointed by the decision, is considering a Supreme Court appeal, arguing the Act protects employees from divisive teachings. Until then, Florida employers continue to face uncertainty, needing to navigate legal interpretations while conducting DEI training.

But even with those bans potentially deemed unconstitutional, a recent study conducted by law professors from Yale, NYU, and Northwestern, revealed a significant drop in minority enrollment in states with bans like these. Kerii Landry-Thomas, associate vice chancellor of equity, inclusion, and Title IX at Southern University Law Center, noted that the state bans create an environment that is hostile to DEI efforts, effectively ending DEI work in Florida.

Florida Rolls Back DEI

Consequently, the Florida Bar had to dissolve its Diversity and Inclusion Committee, reallocating its resources to a new Membership Outreach Committee aimed at enhancing overall Bar involvement among Florida lawyers.

Some members of the Florida Bar were concerned about the potential impact on support for minority groups. Harsh Arora, a Committee member and BigLaw partner, stated: “It’s had a big impact throughout the state. Since the D&I committee came into existence it did a fantastic job of supporting the diverse members of the bar, racial minorities, LGBTQ members, and women organizations that have taken progressive steps to ensure the bar offers all members an equal footing.”                   

Nonetheless, it was the Florida Supreme Court’s stance that the transition reflected its commitment to impartiality and equal treatment of all Bar members. The rest of the Bar leadership remained hopeful that new opportunities for inclusion would emerge. The Bar has been planning to implement the changes in the upcoming budget cycle starting July 1, 2024.

With that deadline quickly approaching, the Florida Bar has started making good. Last Friday, the Bar’s Board of Governors announced that they had voted to remove "diversity and inclusion" from its policy.

The revised policy now focuses on "improvement of legal services" and fostering "equal access and opportunity for all," omitting previous commitments to enhancing diversity and inclusion within the profession, legal education, and the justice system. This change follows the court's earlier mandate to eliminate funding for DEI initiatives, including diversity training from continuing legal education (CLE) topics.

The decision has unsurprisingly sparked concern among minority legal groups. Dwayne Robinson, president of the Wilkie D. Ferguson, Jr. Bar Association, called the move “a grave concern” and emphasized that a less diverse legal profession could hinder access to justice and result in a less diverse judiciary. Arora made another statement, noting that minority bars would now need to rely more heavily on private funding for events previously supported by the bar.

Nationwide Implications

Florida (like Texas) may be a bit of an outlier state when it comes to its strong anti-DEI stance, but its actions still raise several implications for the future of diversity in the rest of the country. Florida's actions may serve as a precedent for other states, particularly those with conservative leadership, to implement similar rollbacks on DEI initiatives.

And the changes in Florida might encourage more legal challenges to DEI programs across the country—Texas could implement something similar in the new year, for example. This could lead to a nationwide reduction in formal DEI programs within legal and educational institutions.

With state funding for DEI initiatives potentially decreasing, there may be a greater reliance on private funding and support from law firms and other organizations to uphold diversity standards. Organizations may need to shift from explicit DEI programs to more integrated approaches that focus on the substance rather than the label of diversity. This could involve embedding DEI principles into the core operations and culture of institutions.

As the legal community navigates these changes, the commitment to fostering an inclusive environment remains crucial. The long-term impact of these legislative and judicial actions will depend on the resilience and adaptability of law schools, bar associations, and legal professionals dedicated to upholding diversity and inclusion within the legal system.

Related Resources:

• Have Law Firms Achieved Gender Parity? Partially. (FindLaw's Practice of Law)
• Judge Dismisses 'Woke-buster' Lawsuit Against NYU's DEI Practices (FindLaw's Courtside)
• Are DEI Positions and Policies at Law Firms on Risky Legal Ground? (FindLaw's Practice of Law)