Professor John Doe Is An Ugly [Insert Racial Slur]!
posted by Elizabeth Nowicki
Law students sometimes use the internet to widely disseminate racist or gendered comments about women and minority faculty members. For example, I have heard about law students using teaching evaluation forms or Facebook or Myspace to make comments to the effect that that a female faculty member is a bitch with PMS or that an African-American faculty member is a [insert racial slur]. Indeed, the Auto-Admit debacle from a couple years back revealed that law students or potential law students seem to at least sometimes use the internet to convey vicious gendered and/or racist comments.
When I hear about these situations, I always wonder about the “character and fitness” implications. It seems to me that a law student who is publicly judging a female faculty member negatively on a gendered basis or who is characterizing minority faculty members by way of stereotyping and ugly slurs is raising questions about his/her character and fitness to practice law. In the same way that a lawyer who embezzles is not fit to practice, one might argue that a law student who dismisses individuals with ugly characterizations based only on race or gender might also be of questionable character for purposes of practicing law. Yet not everyone agrees with this assessment, and, with respect to law students using the internet for such attacks, there has not been a lot of discussion about the character and fitness issues raised.
Therefore, the AALS Section on Women in Legal Education will be presenting a panel at the AALS Annual Meeting in New Orleans examining the issues raised – including the character and fitness issues – when law students, lawyers, judges, or potential law students use the internet to make gendered or racist comments. If a student posts on her Myspace page that Professor John Doe, who teaches Gender and Race and the Law, is an “ugly [insert racial slur] who only has a job due to affirmative action,” does that pose a character and fitness concern? Should we care?
There is a call for papers for this panel presentation, and anyone interested in submitting a paper or paper proposal is welcome to e-mail me for the details.
July 9, 2009 at 6:29 pm
Posted in: Civil Rights, Conferences, Cyber Civil Rights, Feminism and Gender, First Amendment, Intellectual Property
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Responses (11)
Anon Anon - July 9, 2009 at 7:21 pm
I hope someone at the panel will consider the question of when speech counts as “ugly characterizations based only on race or gender” versus just “ugly characterizations.”
For example, imagine a student says that a female professor is a “total b*tch.” Is that automatically an ugly characterization based on gender? What if the same student says that a male professor is a “complete d*ck”? Is that based on gender? What if the student calls everyone a “d*ck”, male or female? Is that based on gender? I suspect different people would have a very different sense of where the line should be drawn.
A.J. Sutter - July 9, 2009 at 7:48 pm
The previous comment begs the question of whether law students who call any of their professors a “complete d*ck” online, especially anonymously, are demonstrating sufficient character and fitness. Surely there are less abusive but still colorful ways to vent one’s criticism. Alternatively, the occupations of longshoreperson, sea captain, drill sergeant, and rap artist are still open to law students who lack sufficient tact and imagination, and without the requirements of licensure or onerous student loans.
Anon Anon - July 9, 2009 at 8:15 pm
I do not know where Mr. Sutter practices law. But I don’t know many practicing attorneys who have never used such coarse language about opposing counsel or a particularly bad judge at some point in their careers.
A.J. Sutter - July 9, 2009 at 8:46 pm
California and now Japan. And you’re right, at least in my case. But only in the office or at home or over a beer (well, wine, more likely), and not on the Internet or even in email.
A.J. Sutter - July 9, 2009 at 8:52 pm
BTW, I should point out that my acceptable coarseness doesn’t extend to gendered or racist comments even in rants, unless self-directed (e.g., there have been times where I acknowledge I was perceived as a “Jew lawyer,” for good or for ill).
John Steele - July 10, 2009 at 10:54 am
You may be already be aware of the discussions and academic literature in the context of Matthew Hale’s C&F hearing.
Wanderer - July 10, 2009 at 12:08 pm
Curious about the First Amendment implications, which are saliently missing from the Professor’s post. First Amendment concerns, I suspect, don’t evaporate here, even if one characterizes a law license as a “privilege” and not a “right.”
If the First Amendment constrains what C&F may consider (and I don’t know if it does), then C&F cannot scrutinize speech merely because it’s an instance of “stereotyping and ugly slurs.” To do so would discard well-established constitutional limitations that apply elsewhere. Seems like C&F could punish speech based on content only if it resulted in a tort/crime (e.g., defamation) or the speech is otherwise unprotected (e.g., obscenity). But, I’m not a Professor, so perhaps my take on this is incorrect or merely boorish.
Please advise.
Sean M - July 10, 2009 at 2:05 pm
I find Professor Nowicki’s post rather absurd.
In order to practice law in a particular state, a bar applicant must first meet all the requirements set by the state bar association. And the state bar is only able to enforce the requirements it sets because the state has granted it an exclusive monopoly over the right practice of law. That said, it would seem to me that each bar association is in actuality a state actor. After all, only a state has the power to prevent someone from earning a livelihood within the state’s borders — and any delegatee of this authority would be performing a function exclusively reserved to the state.
Once you consider each state bar to be a state actor, the issue becomes fairly simple: can a state actor disregard the United States Constitution by punishing someone for exercising his right to free speech?
Put more simply, the Art. IV and Fourteenth Amend. Privileges and Immunities Clauses does not allow states to discriminate against citizens’ privileges in ways that violate those citizens’ civil rights. Since each bar association is a state actor, why should it be treated any differently?
erik tollefson - July 10, 2009 at 9:29 pm
if bad language and the use of racial slurs are a litmus test of “fitness and character” , I would posit 75% (likely more) of currently licensed lawyers would be disbarred.
Zorkmid - July 10, 2009 at 10:48 pm
What if the allegedly unacceptable words do not include the word “ugly?”
That is, suppose a student writes that Professor Jane Doe, who teaches Gender and Race and the Law, is “a [black/brown/whatever] woman who only has a job due to affirmative action?”
Is that reason to deny the student a law license? What if the allegation is strictly true, rather than merely plausible?
John Steele - July 11, 2009 at 12:17 pm
Just to follow up on Zonkmid’s comment, notice that Justice Ginsburg was recently quoted in the press as saying that she got her job through affirmative action. I assume that Professor Nowicki wouldn’t use that to deny Justice Ginsburg a place in the legal profession. So there is a real first amendment issue that needs to be addressed. Again, that’s why the commentary that arose in the Matthew Hale case is relevant.
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