The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Several readers have asked me about the controversy at UCLA Law School related to this exam question in a First Amendment Law class:
Question I (35 minutes)
CNN News reported: On Nov. 24, St. Louis County prosecuting attorney Robert McCulloch announced in a publicized press conference that Police Officer Darren Wilson (who has since resigned) would not be indicted in the August 9 shooting of Michael Brown. Michael Brown's stepfather, Louis Head, was with hundreds of protesters assembled outside the police station, listening on loudspeakers and car radios when they learned Officer Wilson was not being charged. Standing on the hood of a car, Mr. Head embraced Michael Brown's mother. Mr. Head asked someone for a bullhorn but it was not passed to him. He turned to the crowd, stomped on the hood and shouted, repeatedly, "Burn this bitch down!"
Police Chief Tom Jackson told Fox "News," "We are pursuing those comments … We can't let Ferguson and the community die [as a result of the riots and fires following McCulloch's announcement]. Everyone who is responsible for taking away people's property, their livelihoods, their jobs, their businesses—every single one of them needs to be prosecuted to the fullest extent of the law."
County Attorney Robert McCulloch asks lawyers in his office whether to seek an indictment against Head by relying on a statute forbidding breach of the peace and another prohibiting rioting (six or more persons assembling to violate laws with violence). A recent hire in the office, you are asked to write a memo discussing the relevant 1st Amendment issues in such a prosecution. Write the memo.
My colleague Prof. Robert Goldstein had this question on his exam; some students complained, and he decided to partly withdraw it: He didn't count it for students who got a lower score on it than on the other questions, and this didn't affect the grades of students who got a higher score on the question, because the class was too small to be graded on a curve.
Here are my quick thoughts:
1. The purpose of an exam question is to evaluate a student's knowledge and skills. As a result, if a teacher concludes that a particular fact pattern wouldn't do a good job of evaluating some students' knowledge and skills—perhaps because it triggered too much of an emotional reaction—the teacher may reasonably avoid using that fact pattern.
2. If the teacher concludes this retroactively, after the exam has been given, the situation is more difficult, because then it's not clear how to fix this problem (if the teacher thinks this a problem) in a way that's fair for all the students. The same problem arises in other situations, for instance if a question in retrospect appears ambiguous. Still, it seems to me within the teacher's discretion to try to come up with a reasonable solution to the problem, and Robert's choice strikes me as a plausible exercise of that discretion.
3. Robert also tells me that he was not at all pressured by the administration to do this. If the administration was insisting on removing such questions, I would be much more concerned about the justifications for the removal, the precedent it would set, and whether the removal is driven by ideology or by undue pressure from student groups, rather than by sound judgment about how best to evaluate student knowledge. But each teacher should have considerable latitude in making such choices, it seems to me.
4. This having been said, I think the original question was perfectly proper, and I don't agree with the criticism of the question. The question doesn't penalize people for having particular personal opinions on the subject. Like most law school exam questions, it just asks them to discuss how the precedents apply to the facts, in the process explaining the arguments on both sides. (On such an exam question the precedents are rarely entirely on-point, so you have to explain how a precedent can be argued to cut one way and how it can be argued to cut the other way.)
To be sure, some people might be deeply emotionally invested in an issue, and have a hard time viewing it from both sides. But a key part of a law school education is to learn how to do this, even when you are emotionally invested. If you want to work for, say, the NAACP (or the NRA), you will do your clients no favors by being so zealous in your opinions that you fail to grasp the best arguments on the other side.
And that is also true when the matter is still raw in your mind. Often you have to make arguments just days after some traumatic event (here the exam was two weeks after). Indeed, often you have to make arguments just days after a traumatic event that involves you much more directly than the Ferguson incident involved UCLA students—for instance, what you see as a racist verdict that will send your innocent client to prison, or an appellate decision that you think unjustly rejects an argument that you've spent years developing. As a lawyer, you need to master your emotions enough to deal with such situations. As a student, you have to learn how to do that.
Now I take it that the argument is that this question was disproportionately emotionally engaging for black students, and as a result black students had to overcome possible emotional barriers in dealing with this question that white students wouldn't have to. But I don't think that black students are so fragile, or have a hard time thinking clearly about emotionally laden legal issues. Indeed, emotional engagement with a subject has both its minuses when it comes to analysis and its pluses; I'm skeptical that it would have that much of an effect that's particularly hard to overcome.
And beyond this, a vast range of questions, especially in constitutional law, can raise topics that some people find particularly emotionally raw. Questions about bans on revenge porn can be upsetting to people (mostly women) who have been victimized or who can easily see themselves as victimized by revenge porn. Questions about rape shield laws and the Confrontation Clause can be upsetting to rape victims, and to people who have been incorrectly accused of rape, as well as to people who can easily envision themselves as either.
Questions about restrictions on Koran-burning or the Mohammed cartoons can be upsetting to Muslims. Questions about abortion rights, or anti-abortion picketing, can be upsetting to those who view abortion as the modern Holocaust, or to people who have had abortions, or to people whose prospective children have been aborted by ex-lovers who didn't share the person's desire to let the child be born. Questions about the Hobby Lobby case can be upsetting to people who are appalled at the very prospect that the government would suppress their religious freedom rights, and force them to be complicit in what they see as mass murder. Questions about gay rights, or about anti-gay-rights speech, can be upsetting to gays and lesbians, or to people whose deeply felt religious beliefs are constantly derided as bigoted and tantamount to racist.
The list could easily go on. Indeed, note that this question isn't even about racial epithets, or racist speech used against blacks; apparently its mere connection to the Ferguson verdict was enough to lead to condemnation. If people accept the view that such questions are improper, it's hard to see how that view would stop at this particular question.
Instead, it seems to me, students—especially (though not only) in constitutional law classes—should be expected to deal with such questions, both in class and on exams. Indeed, if professors studiously avoid any such questions on their exams, that itself will make the exams weaker at evaluating students' knowledge and skills. And any policy of accepting demands to remove or avoid some such questions will lead to demands to remove or avoid still more. Indeed, it may lead people to be more upset when they see some such questions, because they have been taught that they are entitled not to be confronted with such questions.
In any event, that's why I don't endorse much of the criticism that I've seen of the exam question. But again, this having been said, when a professor concludes on reflection that, in his professional judgment, an exam question isn't an effective way of testing the student's knowledge and skills, it seems to me that the professor rightly has latitude to choose whether to keep the question or throw it out.