Free Speech

The Controversy Over Quoting Racial Epithets, Now at UC Irvine School of Law

Plus a new draft law review article on the subject, by Prof. Randall Kennedy (Harvard Law School), a leading scholar of race and the law, and me.

|The Volokh Conspiracy |

You can read the details of the UCI controversy in this Reddit post and this Above The Law post, but here's the heart of the matter. Prof. Carrie Menkel-Meadow—a distinguished scholar for more than 35 years, and very much a woman of the Left—was teaching a class on lawyer problem solving; her main field is dispute resolution (focusing on outside-the-courtroom resolution), a field that she basically helped found. (Note that she was a colleague of mine at UCLA, but I never got to her know well then.)

In the class Prof. Menkel-Meadow had a unit that discussed "hate speech" filtering on Facebook, and one of the passages in the readings, from this article, was:

In a different way, the [Facebook] policy was also too broad. In 2017, a lot of L.G.B.T.Q. people were posting the word "dyke" on Facebook. That was deemed a slur, and was duly removed. A blind spot was exposed. Facebook, it has been observed, is able to judge content—but not intent. Matt Katsaros, a Facebook researcher who worked extensively on hate speech, cites an unexpected problem with flagging slurs. "The policy had drawn a distinction between 'nigger' and 'nigga,'" he explains. The first was banned, the second was allowed. Makes sense. "But then we found that in Africa many use 'nigger' the same way people in America use 'nigga.'" Back to the drawing board.

Talking about this, she quoted the word "nigger," which later led to an outcry. The Dean has now publicly condemned Prof. Menkel-Meadow's actions, and barred her from teaching first-year classes. (She isn't teaching any first-year classes this year in any event, but she sometimes teaches a mandatory 1L International Legal Analysis class.)

Several administrators also released a public letter of condemnation, which said "We condemn without qualification the classroom utterance of terms, such as the N-word, that are loaded with histories of pain and oppression." No exact list of condemned terms was given, but the "such as" makes clear that there would be others as well.

The condemnations didn't mention the professor's name, but to her credit, Prof. Menkel-Meadow e-mailed the faculty a letter that began, "I have no need to hide behind any anonymity of the Dean's letter to you all," and then defended her position. She remains unrepentant.

Dean Richardson also gave a statement to Above The Law saying, "It is time to eliminate the use of the 'N' word in legal pedagogy." This would mean that words that respected, thoughtful, judges and lawyers of all ideological stripes routinely mention in opinions, briefs, and oral arguments, and which lawyers routinely see in case documents and hear in witness and client interviews, would be forbidden in the law school classroom. And this would of course have to be on pain of discipline or firing, or how else would the word be "eliminated"?

This is entirely the wrong approach, it seems to me. It is not just contrary to academic freedom, but more importantly contrary to basic pedagogical principles. The judiciary and the legal profession has long relied on (1) the distinction between improper use of a word as an insult and proper mention of the word (for instance, as a fact in a case), and (2) a strong preference for quoting the facts accurately rather than in an expurgated way. If we are to prepare our students properly for that profession, we should be conveying the profession's broadly shared norms, rather than punishing professors who adhere to those norms.

In any event, Harvard Law School Prof. Randall Kennedy—one of the nation's leading scholars of race and the law—and I have written an article on these very points, Quoting Epithets in the Classroom and Beyond, which lays out our position in much more detail. We're circulating it now to law reviews, but you can read a draft here; in this post, let me just close with a small sample from the article (anecdotal, but we have much more data than that there):

The late Prof. Terry Smith (a scholar of voting rights, a field where the statements containing the word are routinely quoted by voting rights supporters as evidence of legislator racism) put it bluntly but well in 2018, in defending a colleague at the DePaul College of Law who was being criticized for quoting the word in a class discussion:

"Increasingly, we are dumbing down legal education for students. And increasingly they are ill-prepared to go out and represent clients. They will encounter this terminology and worse in practice. What will they do then?" Smith said….

"[The professor] and I pulled up more than 5,500 federal cases that use the word n– [expurgation presumably by the newspaper—ed.] and did not substitute the word with the 'N-word,'" Smith said. "If these students are preparing to become lawyers, how can it be objectionable for a professor, in the proper teaching context, to use the word?"

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  1. I find this interesting because if you watch videos of mostly white BLM protesters or rioters you can hear them dropping the N-word or at least the N-word-ending-with-an-a much like it was a pronoun. in fact, the video of the guy who confronted the WI shooter who was later shot (who is white) was yelling the n-word at the white kid.

  2. “”Increasingly, we are dumbing down legal education for students. And increasingly they are ill-prepared to go out and represent clients. They will encounter this terminology and worse in practice. What will they do then?” Smith said….”

    I see something even more sinister — the growing belief that only certain types of clients are worthy of representation, and that others should simply be denied it. It’s the concept that only “good” speech be permitted taken to its logical end.

    1. Good point. Pretty soon people might start saying thing like

      But would it be a bad thing if the ACLU was dissolved? Likewise the charade that is the SPLC….

      Maybe we need aggressive AGs, from both the left and right, to address these once-great but now-corrupt institutions….

      1. You mistakenly believe that all are protected by the law.
        I cite Shakespeare for personal reasons.

        1. It’s the concept that only “good” speech be permitted taken to its logical end.

          1. You presume that the ACLU & SPLC represent what they once did.

            1. Ah. You think they’re not good speech anymore.

              So you’re down with the concept that only “good” speech be permitted taken to its logical end.

              1. No, I don’t think they are good organizations. There is a difference.

                1. But would it be a bad thing if the ACLU was dissolved?

                  only “good” speech be permitted

                  1. If either the NRA or ACLU were to be dissolved, those who actually support the stated objectives of either group would form a new one.

                    1. And, possibly in both cases, the successor organization would be more effective.

  3. This would mean that words that respected, thoughtful, judges and lawyers of all ideological stripes routinely mention in opinions, briefs, and oral arguments, and which lawyers routinely see in case documents and hear in witness and client interviews, would be forbidden in the law school classroom.

    Honest question: for whom is the use of the n-word–hard R and all–a “routine” sight in legal practice? In twelve years, I’ve seen it twice as part of my work: once in a hostile work environment complaint (describing a single comment that allegedly contributed to the hostile environment), and once in an email I read as part of a pre-production document review (in a totally different matter that had nothing to do with employment law).

    I can go along with the notion that when one is discussing the facts of a case, one should do so accurately. But this notion that “you’ll be seeing that word a lot in your day-to-day working life, so you need to be ready for it” just hasn’t been borne out in my personal work experience, nor that of anyone I know.

    1. Well, check out our article: Nearly 10,000 opinions on Westlaw since 2000 alone mentioning the word; over 1000 federal appellate briefs from the federal public defenders doing the same (and that’s of course a tiny fraction of all court filings in criminal cases); and much more. Of course, it’s more likely in particular practice areas: criminal law, police abuse, juvenile justice, employment law, First Amendment law, and the like. But it really is quite common.

    2. “There are more things in heaven and earth, Horatio, Than are dreamt of in your philosophy.” People sometimes forget that their knowledge and expertise are not the beginning and end.

    3. I think it largely depends on the type of law your practice. If you do tax law, then you might go your entire career without this issue coming up. I have done a ton of child abuse cases, which–not surprisingly–means a lot of my clients or parents of clients have interacted with police in high-stress situations. So, I have come across “nigger” in police reports, social worker reports, etc . . . at least 2,000 different times! And I would never think of, during my trials, asking a witness, “Did you walk up to the cop and caller her the N-word?” I think you have to be accurate. Period. Full stop.

      I have heard people call (or refer to) other people as MF-ers. Not “motherfuckers,” but MF-ers. Or, “You’re a total B.” Not ‘bitch,’ but “B.” If we do not use the actual term in a trial (or witness interview, etc), then how does the court know what was actually said? How does the court of appeal know what was actually said? I know appellate judges always write, “We were not in the courtroom, so we will not substitute our assessment of a witness’s credibility for that of the trial court judge.” (or words to that effect). Would it even be permissible for an appellate court to say to itself, “Well, at trial, there was only evidence that the defendant calls the cop “The N-word.” We’re gonna just assume that this meant “nigger.”

      Why can’t conservatives, liberals, etc all agree that context matters and that there are some tiny exceptions…areas where the hurt caused by use of an abhorrent word is outweighed by the need to be crystal-clear about what was said. I really do not want to be looking at Jim Crow-era photographs and see a PhotoShopped “No N-words Allowed in This Restaurant” sign in place of what was actually there.

      1. Thanks, this was illuminating.

    4. The UCI Law 2018-2019 Moot Court Competition simulated a Supreme Court appeal to a real 5th Circuit case, Bell v. Itawamba. In Bell, the plaintiff was a Black high school student and aspiring rapper that wrote and published a rap about 2 high school coaches that were alleged to have sexually harassed several female students. He wrote the rap to bring attention to the issue, and five of the female students later submitted affidavits confirming the allegations contained in the rap. The lyrics were filled with profanities, but the most controversial in the case were the following:
      “middle fingers up if you hate that nigga / middle fingers up if you can’t stand that nigga / middle fingers up if you want to cap that nigga.”
      The student was disciplined by the school, which included a suspension. The issue in the case was whether the school had violated Bell’s First Amendment rights.
      In the course of my arguments, two different competition judges, an Asian woman and a white man, quoted the lyrics verbatim in a question. In the real 5th Circuit oral argument, none of the judges used the word in quoting lyrics. The Black lawyer for Bell replaced the word with “nword” in quoting the lyrics. The Black lawyer for the school, quoted the lyrics verbatim. When I argued on behalf of the school, I replaced the word with “[racial epithet]” when quoting the lyrics. I would never be comfortable using the word even as a quote, as the actual lawyer for the school was, but it was in the client’s best interest to paint Bell’s lyrics in as negative a light as possible. Conversely, when I argued for Bell, I quoted verbatim a school administrator’s comments to Bell justifying the suspension because the lyrics were “filthy, and filled with words like ‘fuck.'” The reason being, is that it was in the client’s best interest to show that the discipline was a pearl-clutching reaction by grown adults scandalized and disturbed by profanities (an impermissible basis for censorship) rather than a genuine concern that the lyrics could disturb the safety and wellbeing of the members of the school community.
      Many of the students involved in the current controversy at UCI Law participated in this competition. Although there were a few grumbles about judges using the nword at the time, there was no huge outrage about the harm to Black students in choosing this case for the competition nor condemnation of the competition judges that quoted the lyrics as they were written (at least one of the judges was invited and returned to judge the following year). Many of the students now condemning this professor expressed difficulty defending the school in good conscious. The school’s basic argument was similar to the one now advanced by many at UCI Law: the speaker’s intent does not matter no matter how noble; the only question is whether the contents of the speech has a tendency to harm the school community.
      I don’t make any comments about the propriety of the word in the law school classroom, the harm felt by the law school community, or the distinctions between the Moot Court case and the current controversy. I share this to illustrate that it is not uncommon to encounter the word in practice as an advocate; UCI Law students already have, and many argued vigorously for a high school student’s right to use it with impunity.

      1. I thought the idea of “hate speech” was about intent, not content. Now they want to fall back to the idea that it’s the content that matters, not the intent. It seems it’s just a matter of whatever is useful at the time.

  4. I see a lot of employment opportunities for writers re-editing and expurgating all the published case law of a few centuries.

    1. Remember, that was Winston Smiths job in “1984”
      He was one of many who doctored the past into the memory hole.
      “We have always been at war with Eastasia”

  5. “Well, she *did* say ‘Jehovah.'”

  6. Straight outta Compton, another crazy-ass African-American
    When it comes to smoking punks I’m doing the best I can

  7. “”The [Facebook] policy had drawn a distinction between ‘nigger’ and ‘nigga,'”

    It’s a distinction without a difference stemming from a rapper struggling to explain why it was ok for him to use the word.

    It’s ridiculous not to acknowledge it’s widely used by Blacks both privately and publicly. I wonder why it’s ok for Facebook to stifle Blacks interpersonal cultural mode of expression because of the fear it will be misused by White people. Why do White people (specifically Facebook in this case) have to ruin everything for Black people.

    1. I’ve also heard that, amongst Blacks, it has a similar meaning to “White trash” — that it is a derogatory reference to someone who is felt to be socially/culturally/ethically beneath them.

      For example, two Black Detroit cops referring to residents of an unsavory neighborhood.

      And as an aside, why isn’t “White trash” banned as well?

      1. Yeah, the kindly old (black) lady across the street last year was dropping N bombs all over the place, racist as could be. Of course, she was getting fairly deep into dementia at that point, you lose your internal censor and just blurt out whatever you’re thinking. But you’ve got to be thinking it first to blurt it out.

  8. It should be easy enough to teach despite the restrictions. “There’s a word I’m not allowed to say. And there’s another word that sounds like the word I’m not allowed to say that’s sometimes used by some folks and that for some odd reason people seem to think is okay. Facebook tried to distinguish between them but then it turned out that the word I’m not allowed to say is used in a place that I won’t say in a way that those folks thought was okay. So Facebook was fucked.”

    1. I am reminded by your post of the circumlocutions for the Tetragrammaton, each one of which becomes to holy or too close to the WORD and must therefore be replaced by yet another circumlocution

    2. If you are willing to apply similar protections to the Lord and Savior mentioned in our very Constitution then im game. But you’ll need to go first.

  9. At a moment when I’ve never been so committed to the defeat of a particular party (the GOP), I recently, for the first time in I don’t know, 25?, 30? years, unregistered as a Democrat and re-registered independent. And it’s mostly because of crap like this.

    Is the Trumpist GOP worse? Infinitely so. These authoritarian progressives don’t come near the top of my list of dangerously corrosive illiberal social phenomena, most of which are, if not of Trump’s making, very much to his liking.

    But so what? Worse is worse, but bad is bad enough. And a party that gives quarter to this kind of censorious authoritarianism is one I can’t be a member of, even if I probably will be voting nearly a straight line of its candidates.

    1. And a party that gives quarter to this kind of censorious authoritarianism is one I can’t be a member of, even if I probably will be voting nearly a straight line of its candidates.

      Well that’ll show ’em for sure. The strength of your convictions is a model for us all.

      1. If ever somebody had the standing to critique principled anti-partisanship, it’s not you. I’ll care what you think about my convictions when, well… never.

        1. “I think you’re horrible and terrible. Yeah, I’ll still vote for you…”

          That is going to stick it to them something fierce. I bet they will say, should they win, “True, some people hated my guts and voted anyway”…

          1. First, just because an organization tolerates a faction of members that hold positions I find too deplorable to be associated with organizationally doesn’t mean most of the candidates that run under the organizational banner don’t also stand against those positions. Voting for candidates who share my opposition to the minority faction isn’t an endorsement of the organization. I won’t be vote for any candidates who support censorious policies.

            But say I did vote for a censorious candidate because the Republican candidate was even worse. Are you saying that voting for a lesser evil *cough Trump Hillary cough* is a bad thing now?

    2. Perhaps the known evil is better than the unknown evil?

      1. That’s always perhaps. In this case my money’s on not.

    3. “Is the Trumpist GOP worse? Infinitely so.”

      The worst part is the Brownshirts rioting in our cities, beating up people in restaurants who refuse to do the OK sign, and even shooting Biden supporters dead on the street. [/sarc]

      I’m game: How is the Trumpist GOP infinitely worse than the party of censorship and rioting?

  10. I’m not sure if anyone should be surprised at the standards and actions of this academic institution.

  11. I call upon the bigoted and hateful Dean Richardson to immediately resign, and if he dors not do so immediately, for the Trustees to relieve him of duties and bar him from campus pending investigation.

    While others might have some argument about their use of language, Dean Richardson does not. He made clear that he regards use of certain language as inherently evil, bogoted, and racist.

    In so doing, he openly explained that his use of the language in his email was for the sole purpose of expressing his personal racism, bigotry, and hate. As he himself explained, he had no other reason to use the language. The email he wrote could bot have had any other purpose than to promulgate bigotry and hate.

    A self professed racist bigot has no business being dean of a law school.

    I call on Dean Richardson to resign immediately. I also call upon to the Board of Trustees to have someone look over his emails before he sends them. He is of course entitled to apologize for sending a hate-filled email to the community and for his personal racism when he resigns. But he is not entitled to further darken the school’s doors or further pollute the purity of the school’s inboxes by making further reference to the specifics of the evil, hateful thing he wrote.

    1. In brief, if a person wjo institutes a “their is never a legitimate reason for use” policy, there are two possibilities:

      1. Any attempt to enforce which does not refer to the language enough clearly to indicate what is meant leads to lawsuits that the person was disciplined without ever being informed of what they actually did.

      If there is any reference which clearly imdicates what is meant, the person making it can be fired for violating the policy. After all, if the those instituting the policy claim that there is no legitimate use, then it logically follows that under their own policy their own use must necessarily be entirely illegitimate, and that claim can and should be taken up on.

  12. One word sums up my entire position on this:

    Newspeak.

  13. These sorts of stories always make me laugh. Comme Saturne . . . .

  14. The deplorable business of rapp music would not exist without the n-word. No verse is complete without that term and M-F. Those of high levels of melanin content body covering are the purchasers of these regularly demeaning musical offerings. It would be interesting to check the song lists on the phones and computers of the complainers.

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