My (Rejected) Proposal for the AALS President’s Program on Diversity: The Effect of Model Rule of Professional Conduct 8.4(g) and Law School Pedagogy and Academic Freedom

November 15th, 2016

This year, the AALS issued a call for papers for the President’s Program on Diversity:

Much fine scholarship has, in recent years, addressed important diversity issues surrounding gender, religion, race, viewpoint, disability, and sexual orientation. Tying in to recent events on and off campus, our colleagues in the legal academy have addressed questions of racial equity and inclusion in their teaching and scholarship. Many law schools are now engaged in heightened and new forms of institutional attention on racial and other forms of equity. Some of this heightened inquiry has been prompted by our own reflection on major social issues, including highly visible racial disparity issues in our criminal justice system; however, social and campus protests, including those of the Black Lives Matter movement, have also spurred greater focus.

This President’s Program and associated papers will seek to answer questions, including:

– What are the challenges and opportunities for the legal academy in this social and campus climate?
– Does our community have a special role to play as our schools, universities, and civil society confront critical issues surrounding the various diversity issues of concern?
– Are there tensions or synergies between traditional academic values of academic freedom and viewpoint diversity with heightened commitments to racial and other forms of equity and inclusion?


I submitted a proposal on intellectual diversity: The Effect of Model Rule of Professional Conduct 8.4(g) and Law School Pedagogy and Academic Freedom.

It was not selected.

In any event, here is my proposal, which I will write about at some point:

In August of 2016, the American Bar Association added to Model Rule of Professional Conduct 8.4 a new section (g), that provides, in part: “It is professional misconduct for a lawyer to . . . engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law.” This well-intentioned rule, which leaves key terms ill-defined, could have unintended consequences for law school pedagogy and academic freedom.

Before this amendment, Comment 3 to Rule 8.4 prohibited an attorney from “knowingly manifest[ing] by words or conduct bias or prejudice” “in the course of representing a client” when such conduct was “prejudicial to the administration of justice.” The former sphere of misconduct was fairly narrow. The new Rule 8.4(g) applies far more broadly to any “conduct related to the practice of law,” which is defined in a comment to include “representing clients; interacting with witnesses, coworkers, court personnel, lawyers and others while engaged in the practice of law; operating or managing a law firm or law practice; and participating in bar association, business or social activities in connection with the practice of law.” At a minimum, this provision applies to law professors who speak at bar functions or offer continuing legal education classes. This would also include presentations at other “social activities in connection with the practice of law,” such as the Federalist Society, the American Constitution Society, and even the AALS.

Further, the new rule could reasonably be read to sweep in a host of law school activities. The comments specifically countenances such jurisdiction: “Lawyers may engage in conduct undertaken to promote diversity and inclusion without violating this Rule by, for example, implementing initiatives aimed at recruiting, hiring, retaining and advancing diverse employees or sponsoring diverse law student organizations.” This explanation is far more specific than the proposed version, which merely stated that “Paragraph (g) does not prohibit conduct undertaken to promote diversity.” That the ABA went out of its way to explain that activities to “promote diversity” in law schools were permissible, suggests that Rule 8.4(g) can in fact reach activities within law school. In addition to law student organizations, law school clinics also clearly fall within the umbrella of Rule 8.4(g). Clinical professors will have to govern their lectures to comply with this rule.

Whether doctrinal classes are covered by this admonition is a far closer call. If in the course of a contracts class, a professor offers several litigation tips, is that “related to the practice of law”? If during a torts class, a professor recalls a case she worked on in practice, and uses that as a teaching moment, is that “related to the practice of law”? Read more broadly, graduation from an accredited law school is a prerequisite to practice law. Required courses would all seem to be “in connection with the practice of law.” Even then, it would be difficult to argue that students should avoid electives. The term is ill-defined in the Model Rule, and could be read capaciously to cover a host of activities within law school.

As a result, once law professors with active law licenses are bound by this rule, the burden shifts to them to ensure their pedagogy does not constitute “harassment.” This measure, no doubt well-intentioned, can have a chilling effect on classroom discussions. Pure verbal “harassment,” and nothing more, is unconstitutionally vague, and is not one of the categories of unprotected speech identified by the Supreme Court. The comments, which define the term as “derogatory or demeaning verbal or physical conduct,” does little to cure the vagueness. Indeed, the ABA departed sharply from the Supreme Court’s definition of “sexual harassment” in the Title IX context, which must be “so severe, pervasive, and objectively offensive that it can be said to deprive the victims of access to the educational opportunities or benefits provided by the school.” Title VII employs a similar definition for a hostile work environment. The ABA’s nebulous definition does not require the conduct to be “severe” or “pervasive,” nor does it have to “deprive” a student of “educational opportunities.” Rather, a student could file a bar complaint against a professor based on a single fleeting comment in class that he or she deems “derogatory” or “demeaning.”

Consider a few examples. First, a professor explains that the Supreme Court’s decision in Obergefell v. Hodges, recognizing a right to same-sex marriage, has no grounding in the text or history of the Constitution. A student feels that such a lecture is “demeaning” to the LGBT community. Indeed, the majority decision in that case stated that the Constitution affords “dignity” in the form of marriage equality. Thus, criticizing the decision is denying dignity on the basis of sexual orientation. Second, a professor explains that the President’s executive action on immigration is unconstitutional, and that aliens without lawful presence should be removable under statutory law. A student feels that such a lecture is “demeaning” to her noncitizen parents on the basis of their national origin. Third, a professor explains that even under the principles of Chevron deference, the term “sex” in Title IX (enacted in 1972) cannot be construed to prohibit discrimination on the basis of gender identity. A student feels that such a lecture is “derogatory” to transgender students. Fourth, a professor contends that affirmative consent laws violate due process. A student, a victim of abuse, finds the lecture “demeaning” on the basis of sex. I could go on, but you get the point. A range of academic theories would be silenced in the classroom under the threat of an unconstitutionally vague standard of “harassment.” These examples should also illustrate another implication of this rule: right-of-center viewpoints in the classroom are at risk of being censored by Rule 8.4(g). Lectures extolling Obergefell, executive action on immigration, anti-discrimination laws, and affirmative consent regimes would not be deemed “derogatory” or “demeaning.”

The AALS President’s Program on Diversity requested submissions that explore the “tensions or synergies between traditional academic values of academic freedom and viewpoint diversity with heightened commitments to racial and other forms of equity and inclusion.” The well-intentioned Rule 8.4(g) will no doubt punish certain behaviors that are unacceptable within the legal community, but at the same time it will chill certain viewpoints and stifle academic freedom. I look forward to discussing this timely and important topic at the 2017 Annual Meeting.