Bar Association’s Diversity and Inclusion Policy Upheld on Appeal

A New Jersey appeals court has ruled that the state bar association’s diversity policy of setting aside a certain number of its governance seats for members of under-represented minority groups is a legal exercise of the association’s First Amendment right of expressive association.

A three-judge panel of a Superior Court Appellate Division reversed a ruling by a trial court that had found the policy violated the New Jersey Law Against Discrimination (LAD) because the quotas blocked certain members from eligibility for the seats reserved for minorities.

In its ruling in support of the New Jersey Bar Association (NJBA), the appeals court relied upon a 2000 U.S. Supreme court opinion (Boy Scouts of America.v. Dale) that upheld the right of the Boy Scouts to fire a Scout leader because it learned he was gay. That opinion, which overturned a New Jersey high court opinion, found that a state requirement that the Boy Scouts retain the man as scoutmaster would “significantly burden the organization’s right to oppose or disfavor homosexual conduct,” and the state interests did not justify such a “severe intrusion on the Boy Scouts’ rights to freedom of expressive association.”

Applying Dale to the facts of the NJBA case, the appeals court concluded that compelling the lawyers’ group 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 state appeals court ruling came on an appeal of a lower court’s granting of partial summary judgment on liability to plaintiff Rajeh A. Saadeh, a 15-year member of the NJBA and former member of its board of trustees, on his claim that the association has discriminated against him.

The NJBA’s diversity policy at issue in the case sets aside a certain number of at-large board and committee seats for members who are Hispanic/Latino/a/x, Asian/Pacific American, Black/African American, members of the LGBTQ+ community, or women; as well as three seats for senior lawyers over 70, attorneys with disabilities, or attorneys who are members of a diversity bar association recognized by the association.

In ruling for Saadeh, the lower court had rejected application of the U.S. Supreme Court Dale opinion, maintaining that that opinion was about “forced inclusion” while the NJBA case was about “forced exclusion.” The lower court had also found that to accept the NJBA’s argument would render the state’s law against discrimination “meaningless.”

However, the appeals court noted that the bar association has a long tradition of fostering diversity as part of its mission. The group holds itself out as “promoting and fostering a diverse and inclusive bar association,” which it defines as including “race, ethnicity, gender, gender identity, sexual orientation, religion, age, and disability.” It promotes diversity and inclusion within its ranks. It employs a director of Diversity, Inclusion and Community Engagement to increase participation of diverse lawyers with the association. Its Diversity Committee facilitates its goal of “fostering and promoting an inclusive environment that values the unique contributions of diverse individuals and organizations” and the group’s continuing legal education program expresses a goal “to increase diversity” on panels and presentations, “so as to better reflect the diversity” of the legal profession and its membership.

Citing the NJBA’s tradition, the appeals court concluded that “notwithstanding the LAD’s prohibitions against discrimination in places of public accommodation and private associations, the Bar Association has a First Amendment right of expressive association that permits it to select the membership of its governing bodies through intentional inclusion of specified underrepresented groups, in furtherance of the ideological position it expresses in numerous ways: that it is necessary and beneficial to promote diversity and inclusion in New Jersey’s legal profession.”