The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
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.