Wednesday, August 12, 2020

Michael McConnell and the N word

Andrew Koppelman

In one of his classes at Stanford Law School this past May, Prof. Michael McConnell read from a historical quotation that included the N word.  (The quotation’s accuracy is disputed; more on that below.)  When criticized by Stanford students and faculty for it, he explained that he “make[s] it a priority in [his] class to emphasize issues of racism and slavery in the formation of the Constitution, and directly quote many statements by supporters and opponents of slavery.”  He went on to explain: “First, I hope everyone can understand that I made the pedagogical choice with good will — with the intention of teaching the history of our founding honestly.  Second, in light of the pain and upset that this has caused many students, whom I care deeply about, I will not use the word again in the future.”

That should have been that.  But then, at distant Washington University in St. Louis, where he had written an entirely unrelated article for a law review symposium, there was a movement to revoke publication.  The law review ended up instead issuing a statement denouncing his actions.

Teaching is a delicate business.  There is disagreement among faculty about whether the taboo against this word is appropriate.  Harvard Prof. Randall Kennedy, who is African-American, reports that he sometimes does what McConnell did:  “quote the term out loud in an effort to drive home to audiences the pervasiveness of anti-black prejudice and, more specifically, the way in which this troublesome word has been an integral part of the soundtrack of American racism.”  I don’t do that.  The word has different, nastier significance when it comes out of a white person’s mouth, as McConnell discovered.  (On the other hand, I do on occasion assign texts containing the word.  It is impossible to learn some areas of American law without reading those texts.  And some other white faculty reasonably disagree with me about the appropriate use of the spoken word.)  Sometimes teachers make bad mistakes about how students will react to one or another strategy.  When that happens, you do what McConnell did: own up to it and don’t do it again.  Poor pedagogical choices are not, however, an appropriate object of continuing denunciation and punishment.

Strangely, much has been made of the fact that the veracity of the quotation from Patrick Henry that McConnell used is disputed among historians.  It’s hard to imagine how that could be relevant.  The quotation appears in multiple scholarly sources.  They may be mistaken, but how could McConnell possibly have had an obligation to know that?

(A disclosure:  I’ve known McConnell for years.  We disagree about a lot:  I once wrote a book harshly criticizing a Supreme Court decision in which he had prevailed as counsel.  It never occurred to me to attack his character because of our disagreement.)

American constitutional history inspires and disgusts.  Our law has made us one of the freest and most prosperous regimes in the history of the world.  Bound up with that is a nasty history of racism, inscribed in, among other places, the provisions of the original Constitution that protected slavery.  William Lloyd Garrison was right that the original Constitution, before the Civil War, was “a covenant with death and an agreement with Hell.”  Our problem today is how to have law without racism, when the racism is so deep a part of the history.  The answer is not obvious.  We had better not be afraid to learn the history and talk about it.

When I teach Constitutional Law, we go deep into this history.  We read Dred Scott’s holding that African-Americans can’t be American citizens, Cruikshank’s holding that Congress can’t protect them from mass murder, Plessy’s defense of racial segregation.  I invite students to attack the reasoning of these cases.  And in those classes, I show them in some detail how the Court would respond to their counterarguments, and ask them to respond to those responses.

I hope it isn’t only a matter of time before I get attacked for compelling students to read racist writings.  McConnell spoke the word rather than assigning material containing it, but to the extent that today’s norms distinguish the two, that distinction is fragile and I expect that it will soon evaporate.  (In a response to the students’ statement, Washington University Professor John Inazu points out that this informal norm-setting, enforced by ad hoc groups of students, creates massive uncertainty about where the line is drawn.)  Similarly with the distinction between the N word and racist materials that use other language.  The campaign against McConnell shows how it would happen.  It will be acknowledged that I have not advocated racist ideas.  But, it will be said, I’ve been insensitive.  I have shown a shocking lack of respect.  I’m complicit in systemic racism.  My lack of sensitivity has needlessly harmed my students.  I need to be held accountable.  Students should never be required to deal with a professor who has acted this way.  A pledge not to do it again does not undo the continuing harm.  And so forth.

This kind of thing damages education whenever it happens.  It creates an atmosphere of intimidation in which the free exchange of ideas is impossible.  It is particularly destructive to legal education.  One skill lawyers need above all others is the capacity to turn the chessboard around, to anticipate the arguments of the other side and respond to them.  I know that I’m making my students read awful, racist stuff, blandly clothed in the dry language of legal argumentation.  I tell them this.  When you go out into the world, you are going to encounter legal claims being made by the forces of evil.  You either will or will not have had practice in engaging with those arguments.  If you are encountering them for the first time, you will make rookie errors, and you will lose.  That would be bad.

If you can’t read or hear stuff that enrages you, don’t be a lawyer.  There are plenty of other valuable things you can do with your life.

I argued in my first book that, if the promise of a free society is to be realized, American culture has to be reshaped to eradicate its pervasive, implicit racism.  There must be an anti-racist ethic.  But I also argued that this is a delicate business, with dangers for freedom of speech, freedom of association, and freedom of religion.  That ethic can and sometimes does degenerate into crude virtue signaling and mob justice.  This is in some ways worse than administrative censorship, because it is decentralized and unpredictable, the censorship of all against all.

But, it will be asked, what about my African-American students?  Shouldn’t I consider them?  I do.  They will encounter arguments that are implicitly racist – arguments that they will find personally wounding.  Either they will be able to handle that or they won’t.  I believe in black power.  Much of what is wrong with America is that black people are at the mercy of white people’s obliviousness, whims, indifference, and sometimes outright malice.  That has to stop.  But how do we make it stop?  Legal education is part of the answer.  It gives black law students, future black lawyers, the technical skills to influence the coercive power of the state.  Anything that shields them from this material impairs that goal.  If you’re looking for structures that maintain racial subordination, don’t overlook this one.

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