In ban on diversity aims, the cure is worse than the disease

I’ve never been a fan of diversity, equity and inclusion rules, not because I take issue with their aims but because they employ the hand of government to try to force decent and fair behavior that actually would take better hold without wielding a club.

But as much as I’ve opposed such heavy-handed rules, they’re just a mild intrusion compared to a new Florida law that’s geared to wipe diversity, equity and inclusion off the map. Think of a gnat versus a dive bomber.

Miami-Dade commissioners, some on the conservative side, last week ticked off a list of horrors that the law could unleash in the county – including a threat to each commissioner of removal from office by the governor for a misstep that might keep a vestige of diversity, equity and inclusion alive at county hall.

“Come Jan. 1, 2027, the world as we saw it before has been dramatically revised by this bill,” said Commissioner Vicki Lopez in updating others on the new law, which is so complex that she says she has read it eight times and it still sometimes confuses her.

The law the Legislature passed and the governor signed prohibits local governments from funding, promoting or taking official actions relating to diversity, equity and inclusion. It also prohibits local government from spending funds regardless of the source to establish or support a diversity, equity and inclusion office. The law also bars local governments from allowing their funds to be used by others to promote diversity, equity and inclusion.

The bill reaches far beyond government. It requires recipients of local government contracts or grants to certify that they won’t use the money to require employees, contractors, volunteers, vendors or agents to ascribe to or be taught about diversity, equity and inclusion. That touches civic organizations and private businesses.

“This is the most sweeping legislation I believe I’ve ever seen passed by the Legislature,” said Ms. Lopez, who moved to the commission in November after serving in the Florida House, “but very serious consequences. Because to be charged with misfeasance or malfeasance requires that the governor may review and remove us from office.” That, she added, applies to any official, whether elected or on the county’s staff.

“Anyone who’s active in an official capacity needs to be very careful, and that’s why the county attorneys will provide a much more specific briefing for us prior to the budget cycle,” Ms. Lopez said.

Three years ago in looking at diversity, equity and inclusion in county contracts I criticized what Mayor Daniella Levine Cava called her “purpose-driven procurement process” that listed 36 social benefits to consider in purchases and contacts in order promote goals of diversity, equity and inclusion. None of those priorities dealt with need for the purchase, the price of the purchase or the quality of what the county was buying – just social engineering. Given the scope of the new state law, I can’t imagine those 36 considerations remaining a formal county aim after Jan. 1.

I’m glad those rules are likely to disappear, although they were fine aspirations. Just because they will no longer be government policy doesn’t mean we don’t want all sorts of diverse groups to succeed and prosper. It’s just that those successes, for any group, should not come as government mandates.

By comparison with the new state law, these county rules are a drop in the bucket. The penalty under county rules was losing a bid, not a lawbreaking charge in government and pain throughout the civic and private sectors under the new state law.

Commissioner Oliver Gilbert focused on county grants to community organizations. He asked if the law would ban funding for activities by the Cuban-American Bar Association or the Haitian Lawyers Association.

“If the test is that we don’t give money to a group that has a word in their name that would draw the ire of the diversity police, then we’d have some challenges,” Mr. Gilbert said. “Our budget is a big thing. So are we meant to put in place process to check every dollar that’s spent in the $13 billion? … So we’d be asking Microsoft if they had an LGBTQ day in the relevant month?”

“There would have to be due diligence on our parts,” Ms. Lopez responded.

The statute, Mr. Gilbert said, “has the benefit of being nuanced and stupidly overbroad at the same time.”
That discussion last week in one county committee meeting is no doubt echoing in Miami-Dade’s cities and towns and the other 66 counties across Florida as well. It’s just that, as Mr. Gilbert hinted, Miami-Dade deals with a vastly larger budget and far more opportunities to inadvertently run afoul of provisions of a law that nobody fully understands. There will no doubt be unintended consequences that we can’t yet imagine.

That, Mr. Gilbert said, will fall to the county attorney’s office – which might not have enough people to handle the task, and the county clerk and comptroller’s office, which oversees county spending.

And he noted the irony in the county assessing the pitfalls it faces and the help that could provide possible safeguards: “We’re going to hire somebody to be the diversity police – which might actually be prohibited under the statute.”