Paul L. Caron

Monday, May 3, 2021

Kennedy & Volokh: The New Taboo — Quoting Epithets In The Classroom And Beyond

Randall Kennedy (Harvard) & Eugene Volokh (UCLA), The New Taboo: Quoting Epithets in the Classroom and Beyond, 49 Cap. U. L. Rev. 1 (2021):

Is it wrong for professors to quote epithets in class or in other educational settings? In law schools, this question has arisen as to [the n-word] when a [Wake Forest] professor quoted the defendants’ speech from a leading First Amendment case in a First Amendment class; a [UCLA] professor (one of us) quoted the facts in a rare example of a hate speech prosecution, also in a First Amendment class; a [UC-Irvine] professor teaching a class on legal problem-solving quoted the word in a discussion of Facebook’s implementation of its “hate speech” policy; a [Emory] professor teaching a torts class quoted the facts of a case involving emotional distress and wrongful discharge claims; a [Stanford] professor teaching a class about legal history quoted a statement attributed to Patrick Henry; a [DePaul] professor posed a hypothetical about provocation and self-defense in a criminal law class; a guest [Stanford] lecturer in a class on tobacco regulation displayed and quoted copies of racist advertising; and a professor at Emory University, in discussing discrimination against Native Americans, mentioned that ... had been used as slurs against them. ...

Moved by a recognition that the prevalence of the slurs in American life is an indication of how common hatred of blacks and gays has been and continues to be, and apprehensive about the slurs’ toxicity even in the classroom, some students, professors, and administrators maintain that any enunciation of them is wrongful no matter the context or the intention of the speaker. They maintain that giving voice to those epithets is so hurtful to some that no pedagogical aim is worth the pain inflicted. Thus, some teachers never vocalize the terms, either talking around them or substituting a euphemism such as “the n-word.” ...

There are, however, other words with toxic associations: KKK. Lynching. Nazi. Auschwitz. Genocide. Rape. They are not epithets, but much in life is worse than epithets. Indeed, one reason sometimes given for eschewing any vocalizing of epithets is precisely their association with bigoted violence. The words we just mentioned are at least as clearly associated with the cruelest forms of violence. Yet they are routinely discussed without expurgation or euphemism, especially in the university (and in our own department, law).

We believe the same should be true for epithets. The academy, we believe, should be a place where people discuss the facts—whether of a controversy, a historical document, or a precedent—as they have actually occurred.

Epithets are part of the lexicon of American culture about which people, especially lawyers, need to be aware. Omitting them veils or mutes an ugliness that, for maximum educational impact, and indeed for maximum candor, ought to be seen or heard directly. And omitting them sends the message to students that they should talk around offensive facts, rather than confronting them squarely—a particularly dangerous message for future lawyers, who (as in the famous example of Johnnie Cochran in the O.J. Simpson trial) may need to be ready to themselves quote the word when necessary to serve their clients.

We respect, even as we disagree with, the pedagogical choices of others who refrain from ever voicing the infamous “N-word” or the increasingly taboo “Fa-word.” We believe in pedagogical pluralism. But we think that those who choose to accurately quote the word should receive the same consideration, the same deference to pluralism.

To us, enunciating slurs for pedagogical purposes is not simply defensible. We think that, used properly, such teaching helps convey and reinforce important academic and professional norms of accuracy and precision in use of sources. Accurate quotation is particularly proper in law teaching because grappling with unredacted facts is a professional requirement among jurists, one for which law students ought to be prepared. But the same, we think, should apply in history classes, devotion to accurate recounting of sources being a fundamental part of the historical method; in classes on literature, film, music, and comedy, where analysis often requires careful attention to all the meanings, shadings, and even sounds of particular words; and in other subjects as well. ...

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-word]. And I have been called [n-word] 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. Much the same is true of homophobia. 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 or anti-gay uses of the slurs from vocalizing them for pedagogical reasons aimed at enabling students to attain essential knowledge.

Update:  Lawprofblawg (Anonymous Professor, Top 100 Law School), Use Racial Slurs In The Classroom!:

When several law professors encourage me to read an article, I know it is going to be either really good or it will incite me.

The article, “The New Taboo: Quoting Epithets in the Classroom and Beyond,” in the most recent edition of Capital University Law Review, is the latter case. ...

[W]hat happens when the professor utters the word is not what the professor thinks is going to happen. The class is not incredibly diverse. The “Atomic Bomb” is uttered. Where do you think the white students are going to look to see if there is a reaction? What will your Black students be thinking about as you have shined that spotlight? I’ll give you a hint, it’s not about the professor’s lecture. This is observable to the professor.  The Groupme chats asking, “WHY THE F**K did he just say that?” are not. Even in a racially diverse class, Black students will feel put on the spot.

By uttering the slur, the professor has injured future learning. They have changed the dynamic of the classroom and signaled to their students what value the professor places not on learning, but on them. That effect will be amplified if the students wind up being spokespeople for their race after the professor says the racial slur. More on this later. ...

Teaching is not done in a vacuum. Law isn’t physics. Using a racial slur, no matter the “noble” intentions of the professor, will be laden with the malodorous context of the word. Black students have seen incredible violence and racism. They have experienced it. From authority figures. Then they get to school, and their white professor is attempting to demonstrate “historical accuracy” in the one place they thought they might get a break. Black students are familiar with the white savior complex in education. Or, as two other authors put it, it is “curriculum violence, the “deliberate manipulation of academic programming” that injures the learner’s well-being. ...

The bottom line is perhaps I have more faith in our students’ ability to read context, and less in the ability of colleagues to engage in a well-rounded pedagogy in which any benefit of utterance of the racial slurs would outweigh the sizable costs.

Having said all that, the article caused me to do some serious thinking (and research) about the issue. For that, I thank the authors.

Context matters. A white professor uttering the “Atomic Bomb.” In class. The people lacking in historical perspective are not the students. Look in the mirror.

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