Sunday, August 28, 2016

More on the University of Chicago letter on “trigger warnings” [II]

Mark Tushnet

I once sat in on a class in which the instructor was trying to get students to see one aspect of the difference between tort and criminal liability – that tort liability requires realized harm whereas criminal liability can be imposed even if no harm ensues from the criminalized act. The instructor framed the discussion with what seemed at the outset to be an offhand personal anecdote about his recent – quite irresponsible – behavior while driving. But, he told the students, everything worked out fine – no one was hurt and he got home without incident. The point of the anecdote, in context, was to show that he might have been criminally liable for reckless driving but could not have been held liable in tort because no harm occurred. My immediate reaction to the anecdote was that it was a quite brilliant way to make the distinction vivid. It was, however, a pedagogic failure, because students were so distracted by their outrage at their instructor’s reported irresponsible behavior that they couldn’t focus on the substantive point. (To be clear, I had no idea then, and have no idea now, whether the events the instructor recited actually happened; he told the story with such vividness that listeners could certainly have thought they did occur.)

Some pedagogic choices can fail because the reaction of one, two, or many students obstructs their ability to see the underlying point the instructor is trying to make. There are many examples of this, and many don’t involve trigger warnings. Sometimes those of us who teach cases discover that a family member of one of the parties – or even one of the parties – is in our class. We have to decide how to deal with that in a way that won’t interfere with the student’s learning. (I once had Joshua Locke, the student denied a scholarship in Locke v. Davey, in my class on the First Amendment, and I worried about how I was going to teach that case. As it happened [at least in my memory], he wasn’t in class on the day we dealt with it; I like to think that he made a gracious choice to stay away.) I regularly teach material dealing with whether nonrenewable body parts should be available for sale. (I use variants on an example of a student selling a finger-tip that will enable Eric Clapton to continue to give great pleasure to those, including the seller, who listen to his guitar playing.) I have learned to raise, during the discussion (if a student doesn’t do so), the possibility that opposition to selling such body parts can arise from taking “unmodified” bodies as normative (that is, you don’t have to be a hard-line libertarian to think that such sales should be permitted; maybe being a disability rights activist is enough), and I hope that I would have learned to make that point more quickly if I had in the class (as I have in other classes) students with prosthetic limbs.

That, I think, is what discussions of trigger warnings should be about – whether pedagogic choices made in a different era, with a different set of students with different values and known backgrounds from those today, should be adhered to. An example: I can imagine – because I think I did it many years ago – referring in a class discussion of Everson v. Board of Education to Justice Jackson’s dissenting reference to Lord Byron’s description in Don Juan of Julia, but I certainly wouldn’t do so today; the pedagogic benefit, which is minor, is clearly outweighed by the interference the reference would cause, particularly because there are many other ways of making Jackson’s point.

Instructors use trigger warnings, when they do so in a sensible manner, to maximize their pedagogic effectiveness as instructors: They want to include material whose content might distract students who weren’t prepared for it, and hope that the warning will be enough to reduce the distraction to a level where the substantive point can still be made. These choices are bound up with a lot of other pedagogic judgments – Can one make the substantive point by using other material? Will giving the trigger warning itself distract students, as they wonder, with respect to each item up for discussion, whether that was what the trigger warning was about? So, it’s quite silly to say, as the University of Chicago letter did, that the University “does not support” giving trigger warnings. At the very least, instructors should have the freedom to make a responsible decision that giving a trigger warning will, in the circumstances, enhance pedagogic effectiveness. If the University doesn’t support their doing so, it doesn’t care about good teaching.

[I should note that Geof Stone, appearing on CNN, “explained” the letter by saying that the letter meant that students shouldn’t expect the University, taken as a whole, to be a safe space as defined, not that there weren’t some venues that might well be safe spaces within the University; and that the University didn’t support trigger warnings in the sense that it didn’t require instructors to give them. Ho hum. And the dean of students should take a course in effective communication so that he learns to say what he – as “explained” – means. I should add that I credit Geof's account of what the letter should be taken to have meant, on the assumption that people who say things are trying to make sense; I'm more suspicious about the actual motivation, which I suspect was to signal that the University of Chicago wasn't committed to what political conservatives have come to disparage as political correctness.]

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