Balkinization  

Thursday, July 21, 2011

Professor Connell's Accusers

Jason Mazzone

According to a press release issued by his attorneys, law professor Larry Connell of Widener University has been cleared of all but one of the allegations of misconduct brought against him in connection with his classroom behavior. The press release reports that following a three-day "trial," the university committee hearing the allegations dismissed all of the charges of racial and sexual harassment against Professor Connell but found that he violated a university anti-retaliation policy by e-mailing his students to contest the charges and by issuing a press release about them. Earlier this year, Professor Connell filed a defamation lawsuit against the dean of Widener University School of Law School for allegedly filing false disciplinary charges against him. Professor Connell later amended his complaint to add as co-defendants two students from his Spring 2010 criminal law class, who, he alleged, made false statements to members of the Widener administration alleging sexist and racist conduct by Connell in the classroom. For more background on the case, see Orin Kerr' discussion here and here.

A routine part of my job is to submit affidavits for former students applying to the bar. In completing those affidavits, I am required to state whether there is anything about the applicant's character that makes him or her unfit to practice law.

Are Professor Connell's student-accusers fit to practice law?

Federal anti-discrimination law generally prohibits employers from retaliating against employees (e.g. by firing them) who file employment discrimination charges against the employer. Even if the employer is ultimately cleared of the charges, retaliation is prohibited. Federal law therefore reflects a judgment that the purposes of anti-discrimination law are served by protecting employees who come forward even if this means the employer has to defend itself against unfounded charges.

It is not at all clear that the same rationale should apply when it comes to admission to the bar and allegations made to university officials that lead to disciplinary proceedings against a professor. Classrooms are very different environments from workplaces. In law schools in particular, students often hear and read things that, for one reason or another, they find personally offensive. Law professors have different teaching styles--from each other and from college educators. And students, especially first-year students, are not in a good position to judge whether a professor is behaving in a way that is consistent with university standards and professional norms and, more generally, with standards of academic freedom.

An employer falsely accused of discrimination will not normally go out of business. But a professor falsely accused of racism and sexism--even if ultimately cleared of the charges--can find his or her career destroyed. This is doubly true because university disciplinary hearings are murky affairs (Widener so far has not released the written opinion of the Connell committee) and outsiders cannot easily determine what has transpired. An employer can mount a defense; a professor might not even be permitted in the hearing room.

For each of these reasons, it makes considerable sense to have in place mechanisms to make students think very carefully before raising the R or S flag against a professor.

Bar admission standards are one such mechanism. Bar admissions committees are broadly concerned with the character of individuals they admit to practice law. In at least some contexts, therefore, an admissions committee should refuse bar admission to applicants who, as law students, made false charges to university administrators against faculty members.

The risks of over-deterrence are low. There are a variety of ways to protect the ability of students with genuine complaints to speak up. Law schools could, for example, impose a mandatory 60-day cooling-off period upon students who seek to initiate a complaint against a professor. Bar committees could insist upon evidence of an intentional falsehood before denying admission. Exemptions could exist for students who can otherwise bring forth compelling evidence that they are fit to practice law. Admission could nonetheless be granted but with a 3-year probationary period. And so on. The point is that in some (perhaps egregious) circumstances, student-accusers should pay a penalty.

In the absence of a more complete and publicly available factual record, whether Professor Connell's accusers should be denied admission to the bar is not clear. But there does seem to be enough for the relevant bar admissions committee(s) to conduct an investigation when those accusers seek a license to practice law.

Small update: Some of the comments suggest that this was merely a case of overreaction to Professor Connell's use of hypotheticals involving the law school dean. Professor Connell's amended complaint, linked to above, alleges that the students he named as defendants falsely attributed to him a series of specific racist and sexist statements--a far more serious charge.



Comments:

Your post leaves me a little confused. Are you saying that the accusers made false statements of fact (which would certainly be an issue for the bar) or that they were overly sensitive or naive in reacting to the Professor's hypotheticals? I am not sure the latter is serious enough to warrant finding them unfit to practice law, though it may say something about their maturity and judgment (not to mention the society in which they were raised).
 

What an awful idea. It is not a moral issue to sincerely believe that one has been the victim of racism or sexism, even if people in positions of authority happen to disagree.

Oh, poor law professors! I can't think of a more privileged lot who I am less interested in protecting, especially by the extreme means of destroying the careers of law students who in most cases will have gotten in debt in the range of 6-figures obtaining what is in most cases an overpriced education, that, by the way, will tend not to really teach them much about how to actually practice law.

In any case, I sort of suspected that I did not particularly think much of Mr. Mazzone's own character when he came up with a watered-down weak idea masquerading as filibuster reform. The lack of courage was quite evident at that point. The idea that he thinks it is a good idea to stifle student expression to protect law professors who are certainly powerful enough and able enough to protect themselves just fine confirms it for me. Is Mr. Mazzone afraid of students just like he is afraid to propose ideas that are actually bold and take an ounce of courage to advocate for? It appears that he is. Therefore, we must take extreme measures to protect vulnerable people in Mr. Mazzone's position.

Talk about someone who is totally out of touch with any sense of reality.

If I was on a character and fitness committee, I would deny Mr. Mazzone the ability to practice law. Why? In order to make an example of him and discourage others from writing such poorly reasoned blog posts. No one deserves to have academic freedom who would stifle the expression of others. Yes, I am sure that being accused of racism or sexism is unpleasant; that does not justify destroying careers simply to avoid any inconvenience in your own excessively privileged life.

Oh wait! I'm sorry. We wouldn't want to stifle law professors in any way! We reserve that sort of treatment for students.

The only thing I know for sure is that Mr. Mazzone does not belong anywhere near a character and fitness committee. Seriously.

If you are getting the sense that I am not impressed by proposals to coddle overly privileged law professors, you are getting the right idea.
 

Not sure I see a connection between your disagreement with Professor Mazzone's views on filibuster reform and the amount of courage he does or does not have. At least he is one of the few bloggers here who open his posts for comments. Ill mannered comments such as yours explain why.
 

All of you need to take a chill pill.

Doesn't all of this (student's accusations, overzealous administrators, retaliatory action by Connell, blog post suggesting barred bar admission, blog post criticizing character of blogger and law professors in general) just seem a bit surreal.

At any point in the process, someone with a cool head could have just said "enough." Perhaps Connell or the school administrators should have invited the students over to the garden for a beer:)

To me, the disappointment is the inability of everyone involved to see that they are taking themselves way too seriously.
 

I'm not a law professor but do teach in a political science department. I followed this chain of events pretty closely on the VC a few months ago. As a professor, I'm horrified at the mere possibility that someone could accuse me of racial or sexual harassment just on the basis of what I said in the classroom or what I said in my hypotheticals. It's a professor's worst nightmare. Connell made some poor choices --I never would have used the Dean in a hypo. if I weren't on good terms w/ her-- as did the Dean. This is an example of how not to handle such a situation.

Now to Jason's point. I'm w/ David Wekler on this one. I, too, don't think that it's a good idea. Students shouldn't have to fear that their future legal careers could be put in jeopardy when they make such a complaint even if it turns out that it lacks merit. Typically, in such cases, I suspect that students are oversensitive.
 

A year or two ago, there was a bunch of professors here oh so concerned that even investigating Prof. John Yoo would be a threat to his academic freedom. It was left to one academic (who was sneered at by one of the most strident Yoo defenders) and comments to explain how off this all was.

It is this over the top sentiment that is reflected by this post. The students were wrong but the point of school is to be educated about such things. Threatening bar admissions for such learning experiences is misguided in the extreme and very well might lead to those with more serious claims to be wary about submitting them.

It also ironically harms one 1A (even for non-public academic institutions, the 1A expresses values that should be honored) type value (right to petition) for another (freedom of speech).
 

However, I kind of suspect that I do not think very much of the character Mr. Mazzone, when he came up with a watered-down idea of ​​taking a weak back pass for reform. The lack of courage was quite clear at this stage. The idea that he thinks it's a good idea to suppress the expression of the students to protect law professors, who are certainly strong enough and able to protect themselves and confirmation for me. Mr. Mazzone is afraid of the students, just as he has the courage to propose ideas that are really brave and take a bit of courage to plead? It seems that he is. That's why we have to take extreme measures to protect vulnerable people, the position of Mr. Mazzone.

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