an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Professors Who Insult--What is the Right Response?
The November issue of National Jurist has an article about a recent spate of law professors getting into trouble for comments inside or outside of the classroom that apparently offended students. According to the article, a Wisconsin professor made comments about Hmong men in the context of discussing cultural practices that might be invoked as a defense against criminal charges. A Quinnipiac professor sent an email to students on his distribution list that “derided” them “for their concepts of how poor people and ethnic minorities are represented within the American legal system.” A John Marshall professor was reprimanded for asking a Jewish student “whether his religious training contributed to Jews passing the bar at higher rates than African Americans.” The article did not mention the most recent example of such controversy, involving a professor at Connecticut who showed a film in class, pausing at a scene that offended a few of the students.
I have no knowledge of the details of any of these events. Their recent appearance might be a random cluster. Or it might be a trend.
If there is a trend here, it is probably not a trend of professors saying things beyond the pale at a higher rate or to a greater degree than in the past. There is every reason to believe that law professors have always made verbal gaffes or said stupid things. We are, after all, humans, and our job is to talk, entertain, keep students awake, and provoke thought, often in a spontaneous fashion. Nor is it clear from the information provided about these events that any of the statements were indeed gaffes or went over the line of propriety (vague and shifting as that line is).
No, the trend, if there is one, is that such statements are more likely to incite a negative public reaction (owing to blogs and the internet), and law school administrations are more likely to take action in response to public controversy. Fueling this trend is sensitiveness about issues of race, culture, and religion, or anything else that might offend people. Add to this mix the fact that universities generally react swiftly and seriously to words or actions that might be perceived as offensive (Jon Gould’s Speak No Evil is a terrific study of how universities across the nation have implemented codes enforcing respect for the dignity of others).
You might think that it is good to sanction people for not respecting the dignity of others. Like everyone else, I have been on the receiving end of insults. I have been called a “jap,” a “nip,” a “slant-eyed runt,” “a Japanese gardener,” not to mention a multitude of variations on the theme of being “vertically challenged.” None of these moments have been pleasant. One insult resulted in a fist-fight. Most of time I returned an insult or swallowed my pride and laughed it off (swearing at the person under my breath). Insults hurt, as we all know first hand.
And it can be worse—more humiliating—to hear an insult (or perceived insult) issued by a professor.
But there is a high cost in sanctioning professors for such actions that must also be considered.
The classroom exchange will be diminished if professors screen every thought or comment or action by asking themselves whether someone might be offended. Some people are offended more quickly than others, so the professor will have to be concerned about the extra-sensitive person who might be sitting in the room. This is potentially paralyzing, causing hesitation about every hypothetical or argument that touches on issues of race, culture, religion, class, height, weight, or any other potentially offensive issue.
In a discussion of racial profiling, for example, can a professor ask whether disproportionately stopping automobiles with 18-25 year old black males is justifiable on statistical grounds? The professor might well think that this practice is not justifiable, but might be concerned about even raising the argument for fear of being branded a racist. Or the professor might feel it necessary to couch the argument in terms that emphasize that “some people argue (NOT ME!) that…” This framing will squelch the discussion, silencing students who might believe precisely that; as a result, the issues will not be fully aired. [Heck, even raising this example in this post gives me slight pause].
To offer a personal example, when discussing natural law in my jurisprudence class, I ask religious students who believe in natural law whether they would still believe in natural law if they no longer believed in God. This is a standard issue in legal theory. But I teach at a Catholic school. Every now and then I wonder whether this line of questions will prompt a complaint by a student to the Administration that I am trying to undermine his or her religious beliefs. That is a gross misinterpretation of my question, of course, but misunderstandings are easy in sensitive subjects.
Let me end with a few words to students, administrators, and professors.
Students: next time you feel insulted by something a professor says, call the professor an asshole (under your breath or loudly to all your friends, who will likely agree). This is a time-honored way of dealing with indignities. If you feel brave enough, go see the professor and communicate your unhappiness. Chances are good that the professor meant no insult and will explain the point of the comment, he (it always seems to be male professors) might even apologize. For the reasons stated above, this is a better approach than complaining to the Dean or posting about it on a blog. [If the professor regularly says denigrating or insulting things, that is a different matter.].
Deans: when you receive such complaints from students, keep in mind that a heavy-handed response will affect not only the particular professor, but every other professor at the school and professors elsewhere.
In discussions on any topic there seems to be a tendency to generalize into too few categories. If mere discussion of an idea is considered the same as advocating belief of the idea, you have a prime example of this most basic problem.
Every person has a current theory of how the world works, and this might include how knowledge is obtained, how new information is processed, and reasons for avoiding certain subjects. Before you can get to any discussion of specific topics, you have to somehow penetrate this defense system.
'Isms are another example of overgeneralizing. Until you can get everyone to agree on what an 'ism looks like divorced from content, they won't see their own mistaken generalizations. And it is simple to explain: you apply individual behaviors (which you have experienced or heard about) to a group, good or bad.
As soon as a few stories of professors start circulating, people start looking for new examples (especially those msm journalists!). It only takes a few examples to keep the ball rolling. But the trend, I would agree, is only in the noticing of the examples. I'm also pretty sure that Dr. Phil has caused most of it, or maybe it was Opra...
In your advice to Professors in the final paragraph, did you mean "intimidating" rather than "intimidated"?
Not only is there an issue of people making verbal gaffes and being disproportionately punished for that act, there's also the increased surveillance within the classroom by people with specific political objectives.
One need look no further than sean's regular "faculty lounge" comments or the Campus Watch website to become intimidated before speaking as a professor.
"The classroom exchange will be diminished if professors screen every thought or comment or action by asking themselves whether someone might be offended."
I disagree. I presume you mean that "the classroom exchange will be diminished if professors ask themselves whether someone might *reasonably* be offended." After all, there's no point in asking whether someone might *unreasonably* be offended, since the answer is always "yes." But I don't see the problem in screening every comment or action in an attempt to prevent reasonable offense. In fact, that's the way I teach my own classes, and I think that they are better for it.
In general, I believe people engaging in any form of public communication, whether by e-mail or in front of an audience, would do well to attempt to gauge how their remarks might be reasonably interpreted by others, and adjust them accordingly. In fact, some version of this is an essential part of teaching -- you have to imagine how people who don't already know the law are going to interpret what you're saying. You should therefore be checking yourself, on a moment-by-moment basis, to make sure you don't lapse into gobbledygook. Checking for reasonable offense should also be part of that process.