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.]