Legal Ethics Forum

What Does It Take to Get a Second Chance?

I had this oped in last Friday's Chicago Tribune:

CHICAGO TRIBUNE

October 26, 2018

What does it take to get a second chance?

Steven Lubet

Reginald Dwayne Betts was still in high school when he was convicted of the crime — carjacking and armed robbery — that would haunt him the rest of his life. After serving eight years in a Virginia state prison, Betts eventually became a widely published poet and graduated from Yale Law School. In a recent essay in The New York Times Magazine, he explains the devastating aftereffects of a felony conviction, and the difficulties it created for him when he applied for admission to the Connecticut bar.

Although there is no comparison between what Betts endured and my own life, his essay has moved me to tell my story of criminal convictions and ultimate admission to the Illinois bar. I had an easy time of it compared with Betts, who wrote, “I might eventually be allowed to practice law, or, I realized with a cold, dull clarity, I might not.” In contrast, I blithely assumed that everything would work out, as indeed everything did.

 

I was convicted four times of misdemeanors, once each year from 1967 to 1970, between the ages of 18 and 21, all involving peace or civil rights demonstrations. I pleaded guilty three times, and my one conviction at trial was reversed on appeal. The stiffest sentence came in the last and most serious case, during my senior year in college. Although I should have gone to jail as a repeat offender, a surprisingly lenient plea bargain got me off with two years of probation.

Did Michigan's Prof. Cheney-Lippold Misuse His Position in Class?

[Cross-posted from The Faculty Lounge]

In addition to denying a student's requested study-abroad reference for political reasons (as explained here), it appears that Prof. Cheney-Lippold also misused his position in class. Here is what Dean Elizabeth Cole said in the letter informing Cheney-Lippold of the school's disciplinary measures:

[Y]ou used class time in your course Amcult 3S8 on Tuesday, September 18, 2018 to discuss your political opinions. In your meeting with me on September 20, 20I8, you contended that you spent only 15 minutes of class time on these issues. But [names redacted] revealed that you dedicated all or nearly all of class time in Amcult 358 and Amadt I03 to discuss your reasons for not writing the recommendation, as well as your opinions on the boycott movement. Beyond issues of candor, you did not honor your responsibility to teach your students the material on your syllabus related to your field of expertise. . . . Although this material was discussed in only one session, an entire class period was a significant portion of your total contact hours with students over the semester.

This use of class time to discuss your personal opinions was a misuse of your  role as a faculty member. The result was that at least [number redacted] students [dropped the course].

You can read the entire letter here. [Note: the bracketed phrase "dropped the course" was provided to me by a knowledgeable source; it is redacted in my copy of the letter itself.]

Cheney-Lippold's conduct, however, was actually worse than that. Here is how he described it himself in an interview with the Washington Post:

He also has been able to turn the dispute into a valuable teaching opportunity, he said. Cheney-Lippold, who is the author of “We Are Data: Algorithms and the Making of our Digital Selves,” is teaching two courses this semester, one on cultural studies “from origins to the Internet” and the other on “the politics of code.”

In both class meetings on Tuesday, he said, he opened the floor for questions and discussion. Some of his students were critical of him, he said. Others affirmed their support.

“A Jewish student, a student who identified himself as Jewish, said, ‘All of my friends were calling this professor an anti-Semite, and I told them he’s the furthest thing from an anti-Semite,’ ” Cheney-Lippold recounted.

An open class session, with the teacher in attendance, is inherently coercive. Cheney-Lippold therefore had no business seeking support, or even accepting it, from students to whom he will later assign grades. It is impressive that some students had the courage to criticize him, but there is no way to know how many felt pressure to express approval. And even if they were sincere, they were nonetheless pressed into making statements in front of their classmates.

What student wouldn't confirm to Cheney-Lippold that he is "the furthest thing from an anti-Semite"? Seeking and invoking that sort of endorsement -- during a class period, with other students present -- is the definition of exploitation.

Civility and justice

Lest we grow complacent in attributing the degrading of our political culture solely to Donald Trump, Hillary Clinton steps forward to remind us that the race to the bottom is readily susceptible to a bipartisan effort. In a recent interview, she explained, "You cannot be civil with a political party that wants to destroy what you stand for, what you care about. That's why I believe, if we are fortunate enough to win back the House and or the Senate, that's when civility can start again."

Her comments reflect a fundamental misunderstanding of civility's role in the pursuit of justice.  As I explained earlier this week in an op-ed,

The means we employ in the political pursuit of our chosen values and priorities bear witness to how we view our fellow Americans.

As [Martin Luther King Jr.] reminded us during the tumult of the civil rights movement, “Hate is always tragic. It is as injurious to the hater as it is to the hated. It distorts the personality and scars the soul.”

That prison cells, firebombs and police dogs could not shake King from his commitment to civility speaks volumes about its importance to his work — and to ours.

Here is the lesson for Americans today who seek to defend their cherished values and priorities in the public square: Civility is not ultimately about manners; it’s about affirming our shared dignity and acknowledging — albeit sometimes through gritted teeth — that politics calls us to relationship.

When we allow our disagreements to obscure the dignity of our political opponents, we’re forgetting why King thought such battles were worth fighting in the first place.

You can read the whole thing here.