LSU Law Info

From the Murchison Report

• “The Law Center can certainly prohibit the types of speech that the Supreme Court has indicated fall outside the protections of the First Amendment: advocacy of illegal action, obscene speech, threats and intimidation, and fighting words. These prohibitions would not be insignificant. Some of the demeaning speech incidents reported to me would probably have qualified as fighting words; one or two might have reasonably been regarded as intimidation.” (p. 11)

• “[T]he Law Center should . . . add a statement to the punishment section of the code [Student Code of Conduct]. I recommend that the statement say that more severe punishments are warranted for any violation where the victim was selected on the basis of race, ethnicity, religion, gender, sexual orientation, gender, or disability.” (p. 11)

• The Law Center should “make violations of classroom behavior policies a violation of the code.” (p. 11)

• “The faculty can choose to establish basic rules applicable to all classes or individual professors can announce rules prohibiting demeaning epithets in class. If the faculty chooses the individual professor option, I would strongly encourage faculty members to add a ban on demeaning epithets to their syllabi.” (p. 11)

• “Although the Law Center’s power to establish minimal standards of conduct (including prohibitions on inappropriate speech) is not unlimited, I believe it extends beyond the classroom.” (p. 12)

• “I recommend that the Law Center add the following prohibition to the Code of Student Professional Responsibility: ‘Directing demeaning epithets at another student or member of the Law Center community while on the Law Center campus or at an event sponsored by the Law Center or a Law Center organization.'” (p. 12)

• “If employees utter racial, ethnic, homophobic, or other slurs as part of their official duties, the First Amendment provides them no protection. If they utter such slurs in speech that is not part of their official duties, the two-part test of Pickering and Connick would apply.” (p. 15)

• “In my judgment, the substantive protections available to faculty members do not include the right to direct demeaning epithets at other individuals in the classroom.” (p. 16)

• “[B]oth the Law Center faculty and the administration should make general public statements indicating that the use of demeaning epithets toward fellow students or other members of the Law Center community is inconsistent with the professionalism expected of students at the LSU Law Center. [And] if future incidents involving demeaning language arise, the administration should reaffirm the Law Center’s commitment to these high standards of professionalism.” (p. 17)

• “Education is crucial to making the Law Center community more tolerant. It begins with prominently displaying (in print and on the Law Center website) any policies the Law Center adopts regarding professionalism and diversity. At a minimum, education regarding these policies should become a prominent feature of orientation for first-year law students.” (p. 18)

• “I also recommend that the Law Center consider sponsoring occasional forums on professionalism during the school year. ” (p. 19)

• “Another idea presented during my visit to the Law Center appears to me to have considerable merit. Some students reported that members of their first-year section had held meetings that included frank dialogue on race and that these dialogues helped to bridge some racial antagonisms. Because students in first-year sections spend so much time together, they often forge the type of strong relationships that may permit frank and honest dialogue with respect to difficult subjects. I suggest that the Law Center seek ways to foster such dialogue sessions in first-year sections.” (p. 19)

• “[C]onstitutional restraints . . . limit the government’s ability to punish for exercising their free speech rights. They do not limit the ability of a public university to reward students for exemplary performance. As a result, the Law Center may apply professionalism standards that are more stringent when rewarding students than uses when disciplining students. The most obvious application involves considering professionalism when deciding whether to recommend students for employment or graduate study. Certainly, individual faculty members can consider professionalism in deciding whether to recommend students. In addition, the faculty might want to consider a resolution urging colleagues to do so.” (p. 19)

• “[S]everal individuals complained about the Civilian publishing offensive speech. Most of these examples were demeaning to women, particularly female professors. Although none of the examples I saw satisfied the strict constitutional standard for obscenity, the references were certainly offensive; and I doubt they would have been deemed acceptable journalism in any publication other than a sexual tabloid. I suggest that the Law Center establish a set of good journalism practices for future editions of the Civilian. I suspect one could find a good model of such practices by checking with the Department of Journalism, and applying any reasonable standards should prevent similar articles in the future.” (p. 20)

The Diamond Memo on Epithets
and Student Conduct

“This academic year has been the scene of an ugly set of occurrences . . . . The use of a racial epithet directed to one student by another, at a law school event, is not unlike the use of a racial epithet by an attorney under similar circumstances. Such conduct has been reprobated by the legal profession as attorney misconduct.” – LSU Law Vice Chancellor Raymond Diamond

The LSU Law Center’s only minority Vice Chancellor and one of only a handful of racial minority faculty members, Raymond Diamond, sent a memorandum to faculty on April 24, 2015, proposing the Law Center amend its student ethics code to prohibit certain kinds of particularly vitriolic speech and conduct. The Diamond Memo is available here.

Diamond described two incidents in which students hurled pejoratives at other students, both inside and outside the classroom.  “Yet,” Diamond noted, “no discipline under the Code of Student Responsibility has taken place.” Diamond went on to describe a “curious and objectionable conclusion” at a Disciplinary Hearing: A  white student drunkenly calling a black student a racial epithet (presumably the n-word, as reported here) was not proscribed by the Code. He recommended amending the Code to overturn that precedent.

On May 22, 2015, more than two dozen LSU Law students and alumni sent a letter to LSU administration and Law Center faculty in support of Diamond’s recommendations.

From the Diamond Memo

• “This academic year has been the scene of an ugly set of occurrences. In the fall of 2014 in one of the 1L sections, a student was accused by classmates of using epithets based on race and on sexual preference. The accusation has it that these epithets were used inside the law school and inside the classroom.”

• “The Fall 2014 incident does not stand in a vacuum. In October of 2012, the Law Center suffered an egregious injury to the peace of the community. At a Law Center function, a drunk white student addressed a black student, using a racial epithet. The victim of this insult instituted a complaint under the Code of Student Professional Responsibility. In accordance with the procedures attendant to the Code, a preliminary hearing committee was appointed, ‘to determine whether probable cause exist[ed] to warrant a Disciplinary Hearing.’ Amazingly, the preliminary hearing committee found that no probable cause existed to find a violation of the Code. As it was explained to me by members of the committee, the committee found that even if all of the facts of the victim’s complaint were true, the Code did not proscribe addressing another student using a hateful epithet.”

• “The use of a racial epithet directed to one student by another, at a law school event, is not unlike the use of a racial epithet by an attorney under similar circumstances. Such conduct has been reprobated by the legal profession as attorney misconduct. And because such conduct by a student is disruptive to the educational program of the Law Center and to the ability of students to benefit from exchange among one another, we need a similar understanding here.”

• “An official comment to Rule 8.4 [of the ABA Model Rules of Professional Conduct] speaks directly to the use of epithets such as the one that was used in October 2012, and suggests that an attorney is proscribed from using racial epithets in a professional capacity, at least when the use of such epithets is not advised as a matter of ‘legitimate advocacy[.]'”

• Although Louisiana has not expressly designated epithets as violative of professional conduct, “the Louisiana Rules of Professional Conduct have adopted ABA Model Rule Rule 8.4, including part (d). Comment 3 to the corresponding Model Rule 8.4 would therefore suggest that in Louisiana, attorney usage of racial epithets in a professional capacity is not immunized against professional misconduct charges.”

• “[T]he Law Center is in need of changes to the Code of Student Professional Conduct, to assure that no one with responsibility for advising, enforcing, or making judgments under the Code can misconstrue that certain sorts of demeaning behavior are in fact student misconduct. “