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.