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?"