Paul L. Caron

Sunday, August 30, 2020

Volokh: The Controversy Over Quoting Racial Epithets, Now at UC-Irvine Law School

Eugene Volokh (UCLA), The Controversy Over Quoting Racial Epithets, Now at UC Irvine School of Law:

You can read the details of the UCI controversy in this Reddit post and this Above The Law post, but here's the heart of the matter. Prof. Carrie Menkel-Meadow—a distinguished scholar for more than 35 years, and very much a woman of the Left—was teaching a class on lawyer problem solving; her main field is dispute resolution (focusing on outside-the-courtroom resolution), a field that she basically helped found. ... 

In the class Prof. Menkel-Meadow had a unit that discussed "hate speech" filtering on Facebook, and one of the passages in the readings, from this article, was:

In a different way, the [Facebook] policy was also too broad. In 2017, a lot of L.G.B.T.Q. people were posting the word "dyke" on Facebook. That was deemed a slur, and was duly removed. A blind spot was exposed. Facebook, it has been observed, is able to judge content—but not intent. Matt Katsaros, a Facebook researcher who worked extensively on hate speech, cites an unexpected problem with flagging slurs. "The policy had drawn a distinction between 'n*****' and 'nigga,'" he explains. The first was banned, the second was allowed. Makes sense. "But then we found that in Africa many use 'n*****' the same way people in America use 'nigga.'" Back to the drawing board.

Talking about this, she quoted the word "n*****," which later led to an outcry. The Dean has now publicly condemned Prof. Menkel-Meadow's actions, and barred her from teaching first-year classes. (She isn't teaching any first-year classes this year in any event, but she sometimes teaches a mandatory 1L International Legal Analsysis class.)

Several administrators also released a public letter of condemnation, which said "We condemn without qualification the classroom utterance of terms, such as the N-word, that are loaded with histories of pain and oppression." No exact list of condemned terms was given, but the "such as" makes clear that there would be others as well.

The condemnations didn't mention the professor's name, but to her credit, Prof. Menkel-Meadow e-mailed the faculty a letter that began, "I have no need to hide behind any anonymity of the Dean's letter to you all," and then defended her position. She remains unrepentant.

Dean Richardson also gave a statement to Above The Law saying, "It is time to eliminate the use of the 'N' word in legal pedagogy." ... 

This is entirely the wrong approach, it seems to me. It is not just contrary to academic freedom, but more importantly contrary to basic pedagogical principles. ...

In any event, Harvard Law School Prof. Randall Kennedy—one of the nation's leading scholars of race and the law—and I have written an article on these very points, Quoting Epithets in the Classroom and Beyond, which lays out our position in much more detail.

Here is the conclusion of the article (I use n***** for the word in question):

Several professors caught up in these controversies have said that, going forward, they will no longer vocalize “n*****,” because of the protests that such speech has drawn and because they are convinced that their pedagogical strategy of enunciating the word is not worth the distraction, the hurt feelings, and the complaints. We know some of these professors. We respect them and the decision they have made. But we disagree with it. It defers to the notion that the protest against all mentioning of a word should overcome a considered pedagogical judgment that learning would be enhanced by accurately airing the American language’s paradigmatic racial slur—and the judgment that learning for law students would be enhanced by applying the use-mention distinction that so many judges and lawyers follow.

Perhaps there is something to be said as a matter of prudence for adopting those professors’ position. We note, though, that it seems often to fail to obtain the settlement that its initiators undoubtedly sought to obtain as the gesture is scorned. Instead of being seen as a sign of good will, the gesture has been seized upon as a confession of error and deployed as an additional basis for attacking reputations unjustifiably.

We think, moreover, that this position ultimately undermines education more than advancing it. Precedent and analogy are powerful forces. Acceding to demands to prohibit enunciation of “n*****” encourages related demands (such as those reported in Part V) that will generate a spate of words that are deemed automatically, unconditionally, undebatably unmentionable, without regard for context or meaning.

Human nature being what it is, making one word taboo is likely to lead people to seek similar taboos for words that they find particularly offensive. Why isn’t my group’s pain treated as sensitively as this other group’s pain, people might ask (whether consciously or subconsciously)? If the willingness to use “n-word” as a euphemism is viewed as a symbol of acknowledgment of the wrongs done to blacks, why shouldn’t the wrongs done to my group also be acknowledged?

By way of analogy, we’ve seen a few opinions that contain quotes such as “f***, n*****" [the n-word is spelled out in the opinion and in the article] or “f****** faggot,” and that doesn’t sit well with us: It signals that the word “fuck” is somehow offensive in a way that the slurs are not. We likewise don’t relish the prospect of explaining to, say, a gay student why the Brandenburg phrase is being recast as “the n-word should be returned to Africa” but the Snyder v. Phelps “God Hates Fags” doesn’t get the similar treatment. The categorical principle we urge—that any word can be quoted in an academic discussion of the facts—obviates this difficulty.

And it seems to us that giving in to this pressure to ban one word, and then others, would badly impoverish discussion in university classrooms. Imagine a First Amendment class in which a professor discussing Snyder would have to quote one of the signs in that case as “God Hates F-words” (or is it “God Hates Fa-words”?). Imagine a class discussion of the disputes about the use of “n*****,” “nigga,” and “negro”—a subject on which there is actually a good deal of caselaw—in which the professor would presumably have to talk about “the n-r word,” “the n-a word,” and “the n-o word.” Or imagine a film class discussion of how the depiction of epithets has changed over the decades; presumably, the line from Bad News Bears would have to be quoted as “All we got on this team . . . is a bunch of Jews, sp-words, n-words, pa-words [or perhaps spelled out letter by letter as p-a-n-s-i-e-s?] . . . and a booger-eating moron.” This process turns universities from places at which anything and everything is subject to examination into places for creating and reproducing taboos.

The demand for erasure or euphemism in the classroom, backed up by administrative threat or widespread ostracism, is part of a larger effort, animated by solicitude for oppressed groups, to impose a program of purportedly “progressive” decency upon cultural institutions. We appreciate the impulse behind the effort, but we cannot endorse this particular means used to implement it. We think the demand to restrict classroom speech—even as to a limited attempt to expurgate one particular word— sacrifices core principles of academic freedom and academic candor that have been immeasurably valuable for all groups, including the very groups that it seeks to advance.

Responding properly to this larger effort will require an uncompromising insistence upon keeping free forums of expression, research, and teaching. Vigilance will be especially needed when censorship is advanced on behalf of rightly esteemed and thus morally weighty values such as racial justice: The nobler the end, the greater the danger that it will be seen as justifying even improper means.

The struggle will be long, indeed, never ending. For now, we simply assert the position that vocalizing any word for a legitimate pedagogical purpose—and in particular to accurately report the facts of an incident—should not be made taboo. Due regard for intellectual pluralism prompts us to respect alternative choices made by others with whom we disagree. Due regard for intellectual pluralism should also prompt respect for a decision to eschew silence, avoidance, or bowdlerization in our classrooms.

From page 4 of the article (I again use n***** for the word in question):

The legal system follows what philosophers of language call the “use-mention distinction”: a sharp divide between using a term to insult someone (which the legal system rightly condemns), and mentioning it, usually in quoting some person or document (which is routine in the legal system). We think law professors should do the same, or at least be entitled to do the same if they so choose. We think the same is true for professors in other subjects, but we are particular concerned about our own field of learning and training.

Both of us take this view, but one of us (Randall Kennedy) has this to add:

My remarks are not the result of a transient, ethereal concern. They stem from a deep well of experience, study, and practice. I am an African-American man born in Columbia, South Carolina in 1954. My parents of blessed memory were refugees from Jim Crow oppression. They were branded as “n******.” And I have been called “n*****” too.

I am well aware that racism suffuses American life, sometimes in forms that are frighteningly lethal. I believe that racism is a huge, destructive, looming force that we must resist. Vigilance is essential. But so, too, is a capacity and willingness to draw crucial distinctions. There is a world of difference that separates the racist use of “n*****” from the vocalizing of “n*****’’ for pedagogical reasons aimed at enabling students to attain essential knowledge.

Eugene Volokh (UCLA), Should Universities Recommend (or Demand) Epithet Filtering on Students' and Professors' Internet Devices?:

A thought experiment that came to my mind; I'd love to hear what others think about it.

Paul Horwitz (Alabama), Should Any Words Be Categorically "Eliminated" from "Legal Pedagogy?":

In fairness, although the language in the title of the post is apparently the exact language that a law school dean used (albeit the story is from Above the Law), she did not say precisely what she meant by it. It is far from clear to me that a dean in a public law school could order that any particular word be "eliminated" from "legal pedagogy" at his or her institution, and pretty clear—at least I think it is—that most professors would, at a minimum, politely ignore such an order.

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People who are actually liberal understand that freedom of speech is a precious, precious thing that needs to be protected. While I would never encourage faculty to use the N-word for no reason, it's entirely appropriate in the context of the discussion in class. The left has officially abandoned liberalism for fascism in law schools.

Posted by: Anon | Sep 1, 2020 7:52:38 PM

When you fill a law school with only left thinking people and then they race against each other to be even more leftist than one another, everyone's brain eventually falls out and stupid non-controversies like this one start to happen. Even the coverage of this controversy commends the teacher for being "very much a woman of the Left," as if a teacher's left-leaning nature imbues her statements in class with good intent. Again, law professors are quite possibly the most out of touch being on the planet. 35 years in an echo chamber is a horrible thing to do to an otherwise promising brain.

Posted by: Anon | Sep 1, 2020 7:49:29 PM

It can be useful to distinguish between "a right" and "what's right" sometimes and this seems like one of those times.

Posted by: Steve Diamond | Aug 31, 2020 12:56:39 PM

@MM Your point is correct, but you actually do an injustice to medieval times, though sadly that is commonplace.

Posted by: Mike Petrik | Aug 31, 2020 6:11:21 AM

This is getting very, very silly. And i is only helping Trump.

Posted by: Michael Livingston | Aug 31, 2020 2:30:20 AM

Look, I despise the damned snowflakes, but on this one, I don’t see why we can’t just do initial-word. We all know what curse words the letters of the alphabet stand for, particularly when there’s context, and there’s no satisfactory reason for using the actual word.

That being said, snowflakes go to h-311.

Posted by: Anon | Aug 30, 2020 9:25:38 PM

If actual exampes of hate speech cannot even be mentioned in academic discourse about hate speech, then there is no such thing as hate speech, period. And we're back to a medieval way of thinking, with topics that cannot be discussed and words that cannot be used.

Which is what today's Left wants, honestly.

Posted by: MM | Aug 30, 2020 7:31:34 PM

And God help you if you utter the word "niggardly".

Posted by: cpt banjo | Aug 30, 2020 10:04:25 AM