Emory University and Law School React Badly When a Law Professor Says the "N-Word" in Class

|The Volokh Conspiracy |

Here is Professor Paul J. Zwier's account of how the N-word came up in class:

It was getting towards the end of a Torts class on topic of offensive battery. As you may remember from your first year Torts class, offensive battery allows for extending the definition of contact beyond the person, to things immediately connected to the person. We were discussing the case, Fisher v. Carrousel Motor Hotel, Inc., which involved (P), Fisher, a black man. The court describes Fisher as a mathematician and NASA employee. I'd wondered aloud with the class whether the court was showing its implicit racism to highlight Fisher's profession and employer as if to say he was entitled to respect, while others blacks may not be. The incident occurred in the mid 1960s in Houston at a luncheon, to which Fisher had been invited. Fisher had confirmed his attendance so the sponsors knew he would be there. The lunch took place in the hotel. The white manager of the hotel (D) approached Fisher. The case says, "As Fisher was about to be served, he was approached by Flynn, who snatched the plate from Fisher's hand and shouted that he, a Negro, could not be served in the club." Flynn died before trial. Fisher was never cross-examined, so I have often wondered whether he said something stronger. The question is which "N word" was used, not that an "N word" was not used. Perhaps this was in my mind as I continued my dialogue with the student.

The student who I called on for the case is a black female student with the last name [A name]. I started the class calling on students with last names starting with the letter C. I had then decided to go to the front of the alphabet for the next group of students to call on. In asking Ms. [A name] about more facts in the case some students reported to me later that I asked whether Flynn called Fisher a n….. when he slapped the plate from his hand. To the best of my recollection she answered yes. She may have been too startled by the question to have been answering consciously. I'm not sure whether I used the "N word" because I don't remember consciously choosing to use the word. I do remember that there was a reaction from at least one black student to my question, so I may have misspoken. I wondered to myself after class when it was brought to my attention, whether I had mispronounced negro, or said something else. My intent was to eventually raise the racist slur as a possibility to set up the case we would read in the next week, where the "N word" was used again. I admit that had I used the "N word" this was a mistake on my part and I have no doubt hurt and offended students who heard it or later learned that I had used the word itself. I apologized the next morning. BLSA representatives were present in the classroom.

I do know that the "N word" was used in a following case that we would have discussed on Tuesday. In Caldor Inc., v. Bowden, (1993)(p. 64 in the casebook) a young black man is detained for hours by white security guards intent on getting him to confess that he stole from his employer. During the course of that detention (P) (Bowden) says that the security guard says, [as appears in the text] " You people—you n_____ boys make me sick, but you're going to burn for this, you sucker." (p. 66). In other words, it might be that this case was on my mind from the last time I taught it, and it is the source of my having thought that the word was also used in Fisher. In any event, the use of the word was not gratuitous. Nor was I trying to surprise the class or make it more provocative. The "N word" is an important part of the discussion of offensive battery and intentional infliction of emotional distress.

I think it's fair to say that assuming Professor Zwier did indeed use the word, he messed up. One can legitimately debate whether it's appropriate to use such harsh language for pedagolical purposes. The "for" case is that if you ask students, say, whether a particular insult should be considered tortious (i.e., creates civil legal liability), the visceral reaction students have to a nasty epithet helps make the point of why some may think that such hate speech should be tortious. The counter-argument is that the word should simply be taboo, because all the baggage it carries with it means that it risks offending and distracting students sufficiently to interfere with the educational process. Regardless of how one comes out on that debate, one can understand why students would be especially upset when a professor suddenly uses the word when discussing a case when the word was never used in the case, and when questioning a African-American student to boot.

The question then is what to do about it. What Emory at the university level did about it was to quickly condemn Zwier's use of word and initiate an investigation by the Office of Equity and Inclusion. At the law school level, Interim Law School Dean James B. Hughes Jr. re-assigned Zwier's classes to another instructor pending the investigation results.

To my mind, a sincere apology from Prof. Zwier should suffice (whether the specific apology in his link to his explanation above is sufficient I leave to the reader), and Emory's actions are an overreaction, and a counter-productive one at that. I think the reaction would be justified if Zwier had directed a racial epithet at a student. But in this case, he only asked about the use of the epithet in the underlying facts of a case, not to insult or harass anyone.

Law school teaching being what it is, with lots of back and forth and unscripted moments, and the professor's oft-felt need to play a Socratic Devil's Advocate when no student is willing to argue one side of a case, over the course of one's career it's likely that most professors, particularly those who teach controversial subject matter involving race, sex, gay rights, etc., will say something deemed offensive, reasonably or otherwise, by students. So the question is what to do about such situations institutionally when students complain. In this case, the professor's class was at least temporarily taken away from him, and he is now being investigated by the equity office. In such cases, the investigation tends to be its own punishment regardless of the ultimate result.

The reason this is problematic, putting aside the issue of whether Zwier's contractual academic freedom rights have been violated, is that the natural reaction by professors to cases like this is to avoid assigning materials and discussing in class issues of race, sex, sexuality, etc. Why risk saying something stupid over the course of decades and having your reputation pilloried, your job at risk, etc? Already, I know many Evidence professors avoid discussing the rules regarding prior sexual conduct for just that reason. Judging by my Facebook feed, Emory's reaction in this case is causing a lot of professors to question whether they should modify their law and history classes to reduce their exposure to student claims of offense.

If one cares about improving how society treats issues of race, sex, etc., one certainly wants such issues to be discussed in law school classes and other academic venues. The administrators' reactions in case like the Emory one will simply incentivize everyone to avoid these issues.

And let's be clear: the Emory situation does not appear to be one in which the professor was targeting any student or students, intending to insult any class or group, nor in which the professor is a known repeat offender of engaging in needlessly provocative or inflammatory language. My reaction to such circumstances would be different. In this case, while I understand that Emory wants to send a signal that it takes equity issues very seriously, I think Emory is engaging in a counter-productive overreaction, one that will result in a measurable decline in the willingness of professors, especially at Emory, to wade into important but controversial topics.

NOTE: I think an incomplete version of this post was published by accident. This is the correct, final version.

UPDATE: It's only fair to point out that (in part thanks to the work of our own Sasha Volokh), Emory gets a green light for free speech from FIRE, so the university's general recent record is good.

Advertisement

NEXT: Trump's Trade Deal with Mexico Looks Like a Dud

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. I wonder what Fisher, who was actually called a N1 or N2, and had his plate slapped away – and no doubt suffered a number of other racist indiginities in that less enlightened age – would have made of the ghastly horror of students being subjected to hearing the N1 word used in the third person in reported speech fifty years after the event. Would he have thought – wow, yeah, that’s a biggie, I can understand people fainting all over the campus. Or not ?

    And I wonder what Fisher’s great (times x) grandpa, who may well have been an actual slave, with actual whippings to his name, would have made of it all.

    What we seem to be lacking here is a sense of proportion.

  2. More evidence of how our renewed focus on race in the last decade has moved us backwards on fighting racism.

    I thought back in the 1980s when suburban white kids were singing along to NWA, we would soon defang the taboo nature of the N word — because as long as we treat the word in such a taboo nature, all we do is allow it to retain its power. This merely allows those few who would use the word in a maliciously manner to cause more hurt.

    By adopting rules that make it improper to even repeat the word when debating whether it can qualify as a “fighting word” in a law school class, we only enhance the power the word has to cause harm.

    It’s an ugly term but if we could relegate it to the status of the F or C word, rather than treating is unsayable, we would all be better off. That being said, note that I have refrained from even typing it further perpetuating its taboo nature.

  3. “I think it’s fair to say that assuming Professor Zwier did indeed use the word, he messed up. One can legitimately debate whether it’s appropriate to use such harsh language for pedagolical purposes.”

    No, I do NOT agree that Professor Zwier “messed up.” It’s just a word, folks. Yes, it’s a word with an ugly history, but the only way to defang that ugly history is to acknowledge it and move on. This strikes me as almost as silly a reason to get all upset as the fact that the “N word” is used throughout that masterpiece of American literature, The Adventures of Hucklebery Finn. And the idiots who insist upon removing Huckleberry Finn from school reading lists, or, worse, from school libraries, grant that offensive word far more power to hurt than it deserves.

    1. It’s also a word that appears to have no actual connection to the case, which means that using it was gratuitous — just as it would have been gratuitous for Prof. Zwier to ask whether the defendant had called the plaintiff a motherfucker, or a cunt, or a faggot. This is (in my view) a venial sin, but it is indeed an error.

      1. “Emory wants to send a signal that it takes equity issues very seriously, ”

        If Emory wanted to send a signal, it could signal that adult students need to grow the fuck up and learn to deal with uncomfortable words from time to time. Especially within the context of a discussion about people that suffered actual harm.

      2. He meant to say nagger.

    2. It’s just a word, folks

      As many a First Amendment opinion notes, words are powerful things, DjDD.

      You’re making the same mistakes the idiots who want Huck Finn removed if you use it’s language to justify the N-word’s free use nowadays.

  4. I agree with Prof. Bernstein, but I have to wonder about the intelligence of people who continue to participate in an enterprise as hideously corrupt and intellectually bankrupt as the contemporary American academy. I understand that students–I was one myself–have to get their ticket punched in order to get a decent job, but professors have chosen to be there when they could be somewhere out of the muck. Thus I don’t have much sympathy for people like Prof. Zwier.

  5. The right corrective: students, the professor, the administrators, all get a one semester seminar on Mark Twain. The curriculum centers on reading Huckleberry Finn, Twain’s biography, and other writings by Twain which mention black people. It might prove educational to give these folks a look at how one of America’s greatest writers lived these questions, and then created a humane response.

    1. Although Huck Finn is the book everyone seems to refer to in this context, there is no need to limit it to Huck Finn–and nothing short of a grad seminar would stay on the same book all term anyway.
      You could have a dozen classic works from Twain to Ellison to Baldwin to Joseph Conrad.
      The important sociological issue here is how do we structure our institutions? Around the loudest, and snowflakiest, or around the reasonable middle. Institutions (private and public) are way too ready to abase themselves in the face of the slightest complaint from ridiculously sensitive people.
      If six students in a law school of 800 people (I am just making up numbers here) are offended, the message needs to be–esp if it’s a grad program–to toughen up.

    2. Actually the best book containing racial epithets to assign in this situation would be To Kill a Mockingbird, because (1) the hero (Atticus Finch) is a lawyer, (2) much of the book is about a trial; and (3) its antiracist message is unmistakeable. Racial slurs should never be used against individuals as epithets, and their use in other situations should generally be avoided, but there are times when their use is appropriate.

  6. “I’d wondered aloud with the class whether the court was showing its implicit racism to highlight Fisher’s profession and employer as if to say he was entitled to respect, while others blacks may not be.”

    I think the court was saying, “we have to make people mind their manners around these NASA eggheads even if they are &^%$#@*, otherwise this space-program gravy train could come to an end in our state.”

    On the one hand, I’m glad there are still some taboo words left – we wouldn’t want a professor at a professional school to just spout out f___, s___, and n_____ all the time – but in dealing with court cases sometimes you have unpleasant facts. In this Fisher case, they may have sanitized n_____ out of the record, but in other cases the record is filled not only with bad language but horrible disfiguring injuries, crimes, even death under the most unpleasant circumstances.

    And think of medical students – not only reading about nasty and icky things, but seeing them up close and personal.

    So there are plenty of educational contexts in which highly unpleasant material has to be encountered.

    1. And that’s just in school – think of the things lawyers and physicians encounter in their work, always having to keep a cool head about it.

  7. This shows the utter insanity we have descended to.

    His use of the word was not directed at a student — he was discussing an incident in a reported case, and asked whether one person used the N-word to another person. All that in the context of tort law where it is relevant.

    I see nothing to apologize for here. If any student was offended, they need therapy.

    1. Crybullies. An easy way for students to get a quick dose of power. They play the delicate flower t always needs the fainting couch behind them.

      1. The absolutist nature of the First Amendment is yet again proving its wisdom as people continue to invent justifications to “work around it”.

        It isn’t about the inherent value of any particular speech. It is about denying government one of the primary utilities of the despot — censorship — in hopes of staying off collapse to dictatorship.

        Vox populi vox Dei lands offer no historical evidence to think they can wield such dangerous power safely in the long run.

  8. He didn’t use the word, he mentioned it. Being offended by that makes no more sense than a professor telling a student, “we already elected an n-word president, what more to you n-words want?” and then claiming that the student shouldn’t be offended because the professor didn’t say “nigger”.

  9. Ah, if asked if I’d ever said “nigger,” I’d have to answer “yes,” in lecture on taboo words (among the Yanamamo, saying aloud the name of a deceased person can get you violently attacked; there are degrees of ‘taboo’). At that time (within say a decade ago) I used the actual n-word word rather than bowdlerize the lecture. Today I’d have to think long and hard before giving it to my students straight. Same thing with the f-bomb. Someone told someone who told my VP about that one, and she asked me “Dougie, did you say ‘fuck’ in class? Someone asked if we allowed our professors to say that.” But really she only wanted some leverage to get me to serve on another f-bombing committee.

    1. These poor students would be triggered by the word black in several languages.

  10. RE: “The question is which “N word” was used, not that an “N word” was not used.”

    Nonsense.

  11. The question of what the hotel manager said seems a legitimate question.

    This seems a bit like a medical school pillorying a gynecology instructor for using the word vagina. Words like this are part of the subject matter.

  12. Oooof…yeah I’ll agree this is really snowflakey.

    And the position of the President of the Black Law Students Association (BLSA) Wrenica Archibald, i.e., “My vision for the event is to really bring together the school and the community and set the tone for the upcoming semester so that students, the 1Ls [first-year law students] understand that we don’t tolerate the use of the N-word in any circumstances,” is simply wrong in an academic setting.

    The academic setting is the EXACT PERFECT place to discuss history.

    1. “President of the Black Law Students Association (BLSA) Wrenica Archibald, i.e., “…, the 1Ls [first-year law students] understand that we don’t tolerate the use of the N-word in any circumstances,”

      Well, except for rap songs and casual use by [some] blacks.

      Its such a racist word that we limit its use by race. Limits based on race being racist by definition.

  13. I wonder if, in time, the fact that “the N word” is substituting for another word, which must never be spoken, will be forgotten, and the phrase “the N word” will be considered an insult that should not be spoken? And if so, what acceptable word or phrase will be used to substitute for “the N word”?

    1. “That” word which shall remain unspoken. Lets get silly.

  14. wow, a big thanks to many/most of the commentariat who exhibit far more common sense, common decency, and uncommon rigor in decrying how stoopid this tempest in a teapot is…
    AND
    huge thanks for jerry b pointing out the obvious: how long until “n-word” (geezus, I feel fucking retarded simply repeating the idiotic construction) becomes verboten ? ? ?
    .
    (as far as that goes, how long until any Germanic SOUNDING phrases become, um, outlawed ? EVERYONE knows that using phrases of german origin = Nazi = hitler = kill all jews; I mean, anyone who counts as a human being KNOWS that…)
    .
    the writer, Bernstein, only demonstrates how perverse and contorted your rationalizations have to be in order to adhere to a ridiculous prevailing orthodoxy THAT MAKES NO RATIONAL SENSE…
    .
    words are…
    people attach meaning and take offense as THEY FEEL; there is NOTHING objectively, inherently ‘offensive’ about A FUCKING WORD…
    .
    ESPECIALLY in context of the black students getting back in their cars and putting on rap music at full volume, commonly using the word “nigger” profusely, profanely, and almost never profoundly…
    .
    (AND DO NOT, give me this BULLSHIT excuse of there is a distinction between “nigger” and “nigga”, that is just more BULLSHIT non-serious people PWETEND has validity…)

  15. This piece doesn’t paint a very good portrait of law professors, as Bernstein’s argument regarding their response is that they abandon what they believe to be good teaching when their own interest is put in jeopardy. If a law prof believes the best way to teach the subject of torts is to draw from examples, including those that touch on sensitive topics, but he or she then doesn’t act on that belief when such action puts their own reputation in jeopardy, then their only real belief was self-interest. Perhaps teaching others isn’t the profession they should be in given their predominate focus on themselves.

    Additionally, if the professors are now incentivized to act against their beliefs (or in accord with the belief in themselves) then what incentive are Emory administrators acting in accord with? Perhaps they themselves are incentivized to issue such a policy as a result of any class interaction becoming fodder for the legal blog-o-sphere (and higher-ed blogs) industry. It may be difficult having a policy that examines context and nuance, and thus entails discretion, when every law professor with a keyboard will blog his opinion on the matter to his followers. The issue then goes from being within the walls of the university to the entire country, with everyone having an opinion of how it should have been handled (at least until the next issue arises).

    Perhaps you’re part of the problem? Although, you’re likely just following your self-interest.

    1. Did you really need to spread your kitty litter all over the blog?
      Or were you just following your self-interest?

  16. Really? We can’t even say the word when we are discussing the word itself? Are we at Hogwarts?

    1. It is magical thinking. Like when we tear down buildings because murders were committed there.

      The words or buildings have power, not the people who speak or do the acts.

      1. It’s courtesy, not magic.

    2. Voldemort. There…I wrote it.

  17. There is a HUGE difference between using the “N word” as a slur, vs referring to the word itself. Have academics completely lost sight of that distinction? This whole controversy is ludicrous whether he used the word or not.

    But keep in mind that this is Emory University, which in 2016 offered to release “emergency funds” and provide counseling to anyone traumatized by the “Trump 2016” chalk on the sidewalks.

    1. Did they offer this same counseling in 2008 and 2012?

  18. There is a whole subset of arguments in philosophy of language about what theycall the “use/mention” distinction.

    I wonder how would the snowflakes suggest we formulate a bibliography of Joseph Conrad?; or of the oeuvre of Richard Pryor albums?

  19. Am I the only one here who remembers when members of the Congressional Black Caucus jumped all over a white congressman for describing the funding for his project in a budget bill as “niggardly”?

    1. I don’t recall any such incident, though there have been controversies over the word niggardly. Of course, in white person in the history of America has ever innocently invoked the term in casual conversation with a black person.

    2. You are thinking of an incident in the DC City Council, not Congress.

  20. Good plot for a Rod Serling episode.

  21. As a general matter, I think people should refrain from using obscenities. Something like 60%-70% of people disagree with me.

    The n-word is at the more offensive end of the spectrum and less commonly used. As with any use of obscenity, I consider the context and make a decision to make an reluctant allowance (eg accurate and relevant quoting) or bite my tongue upon considering the futility of an objection (kind of decisions we all make all the time when encountering others). I agree with Prof. Bernstein’s take on this.

    I have sympathy for people getting upset about a word but, tautologically, mob consensus determines social reality. Quoting/discussing the f-word is totally fine for most people; but quoting the n-word makes a growing number of people lose their minds. It is surely silly to ignore context of the use. But I wish mob consensus altogether trended toward more civil language.

  22. Rational Bernstein sighting.

  23. “the visceral reaction students have to a nasty epithet helps make the point of why some may think that such hate speech should be tortious.”

    Is it really that easy? Isn’t this a close cousin to the heckler’s veto? First, the very idea that the concept of ‘hate speech’ has been casually accepted is a travesty. When I was about six years old, my mother taught me that ‘sticks and stones ….’ The concept of hate speech is a tool, a weapon used against perceived ‘enemies.’ It’s a sort of grovelling for sympathy. It boasts of weakness, and those who use it are pathetic, and deservy only pity. If that’s your goal in life, good luck.

  24. The Office of Equity and Inclusion is open for business.
    Business is good.

  25. “Look, nobody is to stone *anybody* until I blow this whistle, even – and I want to make this perfectly clear – if they *do* say ‘n&^%$#.'”

  26. one can understand why students would be especially upset when a professor suddenly uses the word when discussing a case when the word was never used in the case

    Well, I “understand” in the sense that I know people like to take offense, especially when they can get some mileage out of it, but I don’t “understand” why they would legitimately be offended given the context. I mean, he wasn’t calling anyone a n—–, he was simply wondering if someone else used that particular word (as opposed to the more acceptable other N-word) 50 years ago when knocking a plate out of a black man’s hands. Since it is unlikely that asking such question will suddenly result in the reimposition of Jim Crow laws, I don’t understand why someone not looking to take offense would be “especially upset,” as opposed to pretending to be especially upset. The professor had nothing to apologize for, and it’s a shame the outrage mob can so easily force people to make show-trial confessions.

  27. Maybe professors should just record all their lectures on video and try to pose to questions to students with responses within 24 hours giving themselves time to edit their response.

    Just think of what the professor’s mental process would have been in real time, he wants to ask the student whether the word wasn’t really negro but the n-word, so he is thinking of the n-word, but isn’t supposed to say it so he’s supposed to edit his thought processes on the fly so he won’t say the right word because that would be wrong.

    It’s not like he’s thinking of the word inappropriately and blurred it out in inappropriate context. God help any foreign students in his class trying to figure out what he meant but couldn’t say, if he hadn’t said it.

  28. Being professor myself I tend to think academic freedom to convey information should be protected and respected. Professors are humans not robots and some of them get passionate about their teachings so they may things or do things that may strike others. Sometimes in the classroom it is difficult to control and think about every word or action you will say or do. The same applies for students as well. There is no need to overreact by the school in this particular case. The apology by the professor would suffice and then everyone can move on. However, it seems law schools are concerned more about media implication of the situation. Bashar H. Malkawi

Please to post comments

Comments are closed.