RUTHFULLY YOURS

Recent events at Yale Law School reveal that it’s all too easy for administrators to condemn a student for perceived racist statements, even in highly ambiguous circumstances – but much harder to undo the implications for admission to the bar. To put it plainly, a law school’s “discrimination and harassment coordinators” cannot denounce a student for racism and then withhold that information from its bar certifications. If the condemnation is warranted, it must be reported; if it is not warranted, it should be retracted. To do otherwise would violate the administrators’ own obligations under the Rules of Professional Conduct.

According to Associate Dean Ellen Cosgrove, the YLS Office of Student Affairs “tries to help students talk to one another and resolve their disagreements within the community,” even about the most difficult issues. That’s a noble objective, but it doesn’t describe what recently happened when nine law students complained that a classmate had engaged in harassment and discrimination by circulating a “triggering” email. The offending message was in fact an invitation to a Constitution Day celebration jointly sponsored by the Native American Law Students Association and the Federalist Society, to be held at the jokingly described “world-renowned NALSA Trap House,” with a menu that included “Popeye’s chicken,” apple pie, cocktails, and soft drinks.

Trent Colbert, the second-year student who issued the invitation, was called in for a meeting with both Dean Cosgrove and YLS diversity director Yaseen Eldik, who patiently explained the racial overtones of the term “trap house,” as well as the troubling implications of “the fried chicken reference.” This came as news to Colbert, who thought that “trap house” was an innocent reference to a place where young people held parties, “like a frat house without the frat” (and Popeye’s was just a nearby fast food joint). He said he would stop using the term, but that was not good enough for the administrators, who urged him to issue a written apology for any “harm, trauma, or upset” his email had caused, along with a promise to “educate myself” to do better.

When Colbert balked, Eldik cautioned him about potential damage to his reputation, and ominously pointed out that “there’s a bar you have to take,” which of course would include a character and fitness assessment. That bit of not very friendly advice started Yale on a damaging course from which it will be difficult to withdraw.

The crucial moment came when Cosgrove and Eldik sent their own email to the entire 2L class:

We understand that an invitation was recently circulated containing pejorative and racist language. We condemn this in the strongest possible terms. As the Law School’s Discrimination and Harassment Coordinators, we are working on addressing this.

The implications for Colbert were devastating. His lighthearted invitation was condemned as racist by the law school’s discrimination and harassment coordinators, in what could hardly be called an attempt to “resolve . . . disagreements within the community.”

The Washington Free Beacon broke the story of Colbert’s shabby treatment by the diversity team, posting his secret recordings of the meetings with Cosgrove and Eldik. The national media soon picked it up. Washington Post columnist Ruth Marcus bluntly compared the law school to a “Maoist reeducation camp.” The Foundation for Individual Rights in Education declared that “free speech is in jeopardy” at Yale, explaining that the “incident illustrates how university officials can seek to intimidate students into silence and conformity through obscure procedures and veiled threats of punishment.”

YLS responded to the bad publicity through its Office of Public Affairs, issuing the following statement:

Yale University and Yale Law School have strong free speech protections and no student is investigated or sanctioned for protected speech. . . . At no time was any disciplinary investigation launched or disciplinary action taken in this matter. While any person may report concerns about a lawyers’ (sic) character and fitness to the Bar, the Law School has a longstanding policy of reporting only formal disciplinary action to the Bar Association.

Colbert must surely have thought that he was under investigation; and being publicly condemned for racist language by the discrimination and harassment coordinators had to feel like a sanction.

The YLS statement also raises another problem that has not yet been picked up in even the most extensive accounts of this episode: Does Yale fully comply with its obligations of disclosure regarding bar admissions?

Many states require law schools to report much more than “formal disciplinary action” in their certifications for the bar exam. New York, where many Yale graduates apply for bar admission, asks not only about formal discipline but also about whether the applicant was “charged with any misconduct.” Moreover, New York also asks: “Is there any other discreditable information in the personnel or other records of the school regarding the applicant’s conduct or activities or bearing upon applicant’s character not otherwise set forth in this form certificate?”

California likewise asks if there is “any reason to question the applicant’s fitness for admission to practice law.” Responses to the New York questionnaire must be signed by a school official and submitted under its official seal; California requires a dean’s signature, but no seal. Neither state limits reporting obligations to conclusively disqualifying information.

Cosgrove and Eldik, in their roles as discrimination and harassment coordinators, virtually accused Colbert of racism, which they condemned in the “strongest possible terms.” If they meant what they said, it would certainly be “discreditable information” with “bearing upon [his] character” (New York) or “a reason to question [his] fitness for admission to practice law” (California), even in the absence of formal discipline.

If the Yale administration’s “longstanding policy” does indeed limit its answers to formal disciplinary action – omitting both charged misconduct and any other discreditable information – then it has been misleading the New York Supreme Court Appellate Division (the actual licensing authority, not “the Bar Association”), and the California bar, for years.

And if Yale does in fact fully comply with the various certification forms, then the recent announcement misled the YLS students who received it.

A third alternative: Yale conscientiously objects to providing information beyond formal discipline, informing the bar authorities that its answers are accordingly limited. That would be an admirable position, if held openly.

The New York and California bar certifications may be overly intrusive, requesting more information than is needed or justified. There could be many objections to the disclosure of charged-but-unadjudicated misconduct, not to mention vague questions about “fitness.” But law schools do not get to silently set their own policies when responding to such official inquiries. Under Rule 8.1(b) of the Rules of Professional Conduct, a lawyer may not “knowingly fail to respond to a lawful demand for information from an admissions or disciplinary authority.”

Raising the “trap-house” invitation on Colbert’s bar certifications would only increase the damage that Cosgrove and Eldik have already done to him, but YLS has no choice now. The humane and responsible step would be to retract the condemnation – just as publicly as it was first issued.

That does not seem likely to happen, though. I sent an inquiry to Debra Krozner, director of the YLS Office of Public Affairs, who replied: “We do not have anything to add to the statement that we put out.”