Free Speech

Wake Forest Dean Apologizes for Constitutional Law Professor's Quoting the Word "Nigger" from a Leading Supreme Court Case

A word that appears >10,000 times in court cases, in a wide range of fields -- yet some insist that law professors not be allowed to quote it.

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Brandenburg v. Ohio, one of the most important First Amendment precedents, involved the prosecution of a KKK leader for his speech at a rally, and, unsurprisingly, the rally included some not very nice things. To quote the opinion, one of the films of the KKK rally

showed six hooded figures one of whom, later identified as the appellant, repeated a speech very similar to that recorded on the first film. The reference to the possibility of "revengeance" was omitted, and one sentence was added: "Personally, I believe the nigger should be returned to Africa, the Jew returned to Israel." Though some of the figures in the films carried weapons, the speaker did not.

Another film included,

"How far is the nigger going to—yeah." "This is what we are going to do to the niggers." "A dirty nigger." "Send the Jews back to Israel." "Let's give them back to the dark garden." "Save America." "Let's go back to constitutional betterment." "Bury the niggers." "We intend to do our part." "Give us our state rights." "Freedom for the whites." "Nigger will have to fight for every inch he gets from now on."

Michael Kent Curtis, one of the leading historians of American free speech, was teaching the case in his constitutional law class, and, unsurprisingly, quoted portions from it that included the word "nigger." Some students complained, and here is how the Dean responded:

As some of you know, a number of students reached out yesterday to the Dean's Office about Professor Michael Curtis' use of the "n-word" when teaching Brandenburg v. Ohio in Constitutional Law I.

First, for the students attending that class, please know you have my most sincere, heart-felt apology for the pain Professor Curtis caused many of you when he read aloud the footnote in Brandenburg detailing racist statements made at a Ku Klux Klan rally, which included the most offensive word in the American language — the n-word. Confronting America's discriminatory past through case law can be challenging enough without hearing your professor read that word aloud in a class. Wondering how the word will be treated in the class where your attendance is required can be a painful experience as well. I also want to offer that same apology for students who learned about the incident and were also hurt. Words matter and the consequences of words (not just the intentions behind words) matter. On behalf of Wake Forest Law, I am sorry.

Second, please also know I spoke with Professor Curtis last night, and on reflection, he realized that it was sufficient to have students read the footnote with care and that the n-word need not be said out loud. He sent his students an email last night. As he noted, "I was saddened to learn of and I regret the deep pain that hearing the words read aloud caused some of our students."

Third, I want to reaffirm my commitment to your learning in a diverse, inclusive, and equitable learning environment. At Wake Forest Law, diversity — the mix of different perspectives and experiences that make up a healthy, stimulating classroom — is of paramount importance. Our community shares a tradition that embraces freedom and integrity, acknowledges the worth of the individual, and promotes a democratic spirit arising from open-mindedness and discourse. Yesterday, we failed to carry out that tradition. Together going forward, I want to minimize our failures.

We will continue our commitment to training our students and faculty. For the second year in a row, we offered implicit bias training to all first-year students. This year we also had two workshops for faculty on how to create inclusive classrooms to follow up on the implicit bias training we had the previous year.

More work is needed, and I am committed to planning and executing that work. I have already been in touch with student leaders and will continue to consult the leadership of diverse student organizations in our discussions on how best to improve the experience for all students at Wake Forest Law I have sought the counsel of the Chief Diversity Officer at the University level. Lastly, I am asking Alison Ashe-Card, who chairs our faculty Diversity & Inclusion Committee, and Wendy Parker, Executive Associate Dean for Academic Affairs, to work with students and faculty to submit proposals to me about next steps by April 24, 2020.

I am committed to marshaling all of our resources to ensure a diverse, inclusive, and equitable legal education experience. Only then will our students be prepared for the challenges our world faces.

I think the Dean's reaction was quite wrong (as was a similar reaction by the dean of Stanford Law School to a slightly different incident some months ago). My view is that, in class readings and in-class discussions (as well as in outside-class discussions), professors ought to mention what actually happens in a case or incident, without euphemism or expurgation; and students should feel free to do the same. If professors and students feel uncomfortable with saying those words themselves, I wouldn't condemn their decision to use an expurgated form (see, e.g., Prof. Geoffrey Stone's decision along these lines); but I think the better approach is to accurately quote.

Professors certainly shouldn't use epithets, racial or otherwise, to insult people themselves. But when they are talking about what has been said, I think it's important that they report it as it was said. This is often called the "use-mention distinction," see, e.g., Randall Kennedy, How a Dispute Over the N-Word Became a Dispiriting Farce, Chron. Higher Ed., Feb. 8, 2019; John McWhorter, If President Obama Can Say It, You Can Too, Time, June 22, 2015 (distinguishing "using" from "referring to").

Thus, when I have talked in my First Amendment Law class about Cohen v. California, I talked about Cohen's "Fuck the Draft" jacket, not "F-word the Draft." When I talked about Snyder v. Phelps, I talked about Phelps' signs saying things like "God Hates Fags." When I talked about Matal v. Tam, I talked about a trademark for a band called "The Slants," which some view as a derogatory term for Asians. I suspect many, likely most, law professors do the same; they should certainly be allowed to.

To turn to speech hostile to a group I belong to (Jews), when I talked about a rare recent group libel case, the Montana State v. Lenio case, I noted that Lenio said, "I think every jew on the planet deserves to be killed for what kikes have done to our #dollar and cost of living Killing jews > wage #slave ….," "#Copenhagen [referring to the then-recent Copenhagen shootings, including at a synagogue] It's important to note that jews hate free speech & are known bullsh-ters, could be #falseFlag So Hope for many REAL dead kikes," and "Now that the holocaust has been proven to be a lie Beyond a reasonable doubt, it is now time to hunt the Nazi hunters." (As it happens, both my parents came close to actually being killed by Nazis in World War II; my father was trapped in besieged Leningrad [civilian death toll about 1/3], and my mother was a Jew in Kiev [likewise, death toll about 1/3 or more] who would likely have been slaughtered with the other Ukrainian Jews if she hadn't been evacuated to Siberia. Nazi rhetoric and symbolism: Not my favorite.)

We have had readings or slides discussing cross-burning, and depicting swastikas and Confederate flags connected to cases or problems. Likewise, leading First Amendment cases (Brandenburg v. Ohio, Virginia v. Black, NAACP v. Claiborne Hardware, Board of Ed. v. Pico, and more), the recent Connecticut racial-ridicule prosecution that I discussed in my Con Law II class last Fall, and materials in cases that my students and I have dealt with in our First Amendment Clinic have involved the word "nigger"; readings have accordingly mentioned that word, and I have used the word in those discussions. Unsurprisingly, I think Prof. Curtis was quite right to do so as well, for several closely related reasons:

[1.] First, the law school is part of a university, where we should try to discuss the world as it is, the evil as well as the good, whether in law classes, history classes, literature classes, or elsewhere. This strikes me as a fundamental feature of the modern university: The right (I think the duty, but at least the right) to accurately present and discuss the facts of the world around us.

[2.] Another reason is that, once a rule is set forth that you can't use "nigger," naturally people will assume that this reflects a broader principle. What about "fag" in "God hates fags" from Snyder or the other Westboro Baptist Church cases? What about swastikas or Confederate flags or "Negro," in law school classes or history cases or other classes in which these are parts of the relevant materials? Normally, we expect students to accept candid discussions of awful things (and history and law are chock full of awful things). But once one word that bitterly insults one group is made taboo, it's human nature for other groups to expect equal treatment for themselves. A categorical principle that we can quote all words, precisely because we are reporting the facts rather than using the words pejoratively, strikes me as a much better approach, and one that will help decrease the extra hurt feelings that will arise if, say, gay students were told that "fag" can be quoted but "nigger" can't be.

[3.] Beyond this, a good deal of history and of crime is much more painful than mere racial hostility (even the bitter hostility that many actual uses of "nigger" reflect). Genocide. Slavery. Hitler, Stalin, Mao. Rape. Child molestation. Lynching.

Some students may understandably find being reminded of such things to be much more painful than just hearing a quote from some racists. To give one concrete example, some years ago several law school administrators at a Top 20 law school told students designing a moot court problem to remove a case from the readings. (Moot court problems often focus on writing and oral delivery rather than research, and therefore give students a closed set of precedents on which they can rely.) The problem was about the First Amendment and threats. The case that they were told to remove was the most important precedent in the field, Virginia v. Black. The reason given to remove the case was that it involved cross-burning, which might be seen as too traumatic for some students. The result would have been pedagogically nonsensical, Hamlet without the Prince. Indeed, it would have taught the wrong message—and, I think, would have been humiliating for the students and the school when outside judges asked the students in the oral arguments why they hadn't discussed the key precedent.

Fortunately, the decision was ultimately reversed. But this is where we go with the logic of compulsory expurgation of racially offensive material from sources that include it.

[4.] Moreover, law schools are training people to become lawyers.  Lawyers have to deal with facts as they are, regardless of how unpleasant those facts may be.  They need to read cases that contain nasty words and describe nastier actions.  Do a Westlaw search for nigger & da(aft 1/1/1990), and you will find a bit more than 10,000 such cases, and there are many cases that quote other epithets as well; nor is the pace slowing down.  (These cases, by the way, include Supreme Court opinions by, among others, Justices Blackmun, Ginsburg, Marshall, O'Connor, Sotomayor, and Thomas.)

And that's just in the cases that lawyers may have to read and discuss.  On top of that, lawyers have to listen to witnesses who report what they heard.  They have to listen to opposing counsel who quote cases and evidence.  They have to hear judges who do the same. (Westlaw archives far fewer oral arguments than cases, but a search through its limited trial transcript and oral argument database for likewise reveals hundreds of mentions of "nigger.")

And indeed every day, lawyers of all races, religions, ethnic groups, and sexual orientations handle cases—whether in criminal law, employment law, education law, civil rights law, family law, or elsewhere—in which they hear extremely offensive material.  They handle these situations with professionalism, and don't let the casual cruelty, callousness, and hatred that they read or hear about get them down.

I do not for a moment think that black lawyers allow themselves to be debilitated by hearing material about racism, gay lawyers about hatred towards gays, Jewish lawyers about anti-Semitism, and so on, whether that material describes violent attacks, contains epithets, or whatever else.  I think that, as law students and law professors, we should follow this example.

[5.] Indeed, the implicit message of the claim that black law students, in particular, need to be protected from hearing cases that contain the word "nigger," because they find it so "painful" and especially "challenging" or even traumatic, is that young black lawyers will likewise be sharply disturbed by hearing the word in the everyday reality of their practices—in courtrooms, in depositions, in witness interviews, wherever it is part of the facts of a case or of a relevant precedent. If this were true, then this would suggest that black lawyers are going to be less effective than white lawyers, because they are so pained, challenged, disturbed, and distracted by simply hearing the word.

As I mentioned in item 4 above, I do not for a moment believe that black lawyers actually are less effective lawyers, precisely because I do not believe that they are so easily wounded simply by hearing the facts of a case. But I also don't believe that black law students (or other law students) are likewise so easily wounded. I believe that students and lawyers of all identities are perfectly capable of handling the often ugly reality of the world, as reflected in the precedents and in the cases before them. And I think it does them no service—it does not help them be "prepared for the challenges our world faces"—to tell them that they are somehow entitled to be so shielded from that reality that they don't even hear some aspects of that reality.

For more on this subject, see Randall Kennedy's book Nigger: The Strange Career of a Troublesome Word (2003), as well as Randall Kennedy, How a Dispute Over the N-Word Became a Dispiriting Farce, Chron. Higher Ed., Feb. 8, 2019; John McWhorter, If President Obama Can Say It, You Can Too, Time, June 22, 2015, which I also mentioned above.  Disclosure:  Students have at times faulted me from quoting the word "nigger" in class discussions (and, in one instance, in an overheard discussion with a law professor before a speech she was giving); as you might gather, I stand by my approach, for the reasons given above.

UPDATE: Reader Dilan Esper pointed me to Johnnie Cochran's argument in the O.J. Simpson trial that I thought provided a helpful analogy (though I recognize that we're talking here about analogy and not identity). Prosecutor Chris Darden had argued that the Judge should exclude evidence of Mark Fuhrman's use of the word "nigger," "because it is so prejudicial and so extremely inflammatory that to use that word in any situation will evoke some type of emotional response from any African American within earshot of that word." Darden went on,

Mr. Cochran would like to ask a white police officer if he ever used that word and after that white police officer testifies there will be other white male police officers, and by the time those other officers testify they will—the jury will have heard this word, they will be upset, they will have become emotional, and as soon as Mr. Cochran works them up into that emotional frenzy he would like to get them into, as soon as he does that and the next white police officer takes the witness stand, the jury is going to paint that white police officer with the same brush Mr. Cochran painted Detective Fuhrman.

Here was Johnnie Cochran's response:

[Mr. Darden's] remarks are demeaning to African Americans as a group….

It is demeaning to our jurors to say that African Americans who have lived under oppression for 200 plus years in this country cannot work within the mainstream, cannot hear these offensive words. African Americans live with offensive words, offensive looks, offensive treatment every day of their lives, but yet they still believe in this country. And to say that our jurors, because they hear this offensive word—every day that people call, that they interact with people, we have heard this in the questionnaires—to say they can't be fair is absolutely outrageous for the prosecution to stand here and over the last couple of days to present character assassination against this man, unfounded, bogus charges after charge after charge, then to withdraw seventeen of those charges, for them to have the temerity, the unmitigated gall to come into this courtroom and talk about fairness.

What we are going to be talking about this afternoon, your honor, is words out of the mouth of Mark Fuhrman. What I want to share with you are the things that this man said, not what we made up, what he said, what he told people….

Your honor, we didn't create Mark Fuhrman. We take witnesses the way we find them. We didn't tell him to go to the doctor and say all those things that I will share with you this afternoon. We didn't tell him to say those things in front of Kathleen Bell….

Cochran was "prepared for the challenges our world faces"; students who are taught that they are entitled never to hear the word "nigger" quoted from court records will not be.

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  1. Professor, I went to law school as a 37 year old getting ready to leave military service. I graduated at 41; I am now 43. Thus, most of my colleagues in law school were a lot younger. I got along well with most of them, and they put up with my rather different views.

    I noticed quite a bit of political correctness and “triggering” at my law school. But it seems that the current crop of students just cannot handle anything that slightly impinges on their political or social justice conceits. They shatter like glass if they have to read about these things. I am thinking that they are not suited to the practice of law. As a fellow attorney friend recently said to me, one of his first cases out of law school was a prosecution where the defendant allegedly raped another person with a broomstick.

    I hate, hate, hate to give into the stereotypical complaint, but kids these days need to toughen up and grow some resolve. Law school deans are unfortunately coddling these kids, and I find that tragic on many levels.

    1. Michael, your reply resonates with a lot of Conspirators I think. I strongly agree with you.

      What I do wonder about is, “Does it really matter if they’re coddled in school?” Because as you note – and as we all have experienced our entire adult lives – the coddling ends the moment they step into the real world workplace.

      1. I’ve wondered about that too. Are there studies of how many law school graduates are still lawyers 5, 10, 20 years later, and what kind of lawyers? I suppose a corporate lawyer or contract lawyer (IANAL!) might continue playing snowflake, although with reduced audiences.

        1. My fear is the converse, that they’ll become judges and bureaucrats willing to eliminate any scintilla of free speech so as to ensure the safe community they demand.

    2. Michael, you may be correct in your assessment of the students, although, quite frankly, the students I attended law school with some 37+ years ago were really not that different. What is more troublesome is how the adults in the room, namely, the administration and professors, who should know better, feed into the students’ behavior. They are the ones who should be reminding students that as lawyers, they will be representing clients that they might find personally despicable, and dealing with factual scenarios far more troubling than the utterance of a given word. They are the ones who are failing the system, not the students.

      1. “…as lawyers, they will be representing clients that they might find personally despicable…”

        WILL they? Or will they refuse to do so?
        That’s what worries me….

    3. I am also a late in Life Student ( Baby Boomer) who retired to attend Law School in San Antonio. These students who complained are not typical of the students in my class. Despite the talk one might hear about “Millennials” and their “ Entitlement mindset” or “Safe Space demands” the young people I am in school with give me great optimism for the future. These are intelligent, discerning, hard-working kids that expect nothing from anyone and expect to earn everything they get. They are also not at all opposed to hearing ideas or even terms that ” offend” them or challenge what they believe or have been taught. In fact they welcome these discussions. This was evidenced recently in our class on Constitutional Law and our section on reproductive rights. The discussions were passionate but respectful (both in and out of class) no matter what side of the issue one was taking. Take heart. Kids today are tougher than we old guys think! :>)

  2. I am terribly shocked and deeply offended that the Wake Forest Dean’s Office issued a communication suggesting the n-word was used on campus. The Dean’s Office’s casual reference to this word in a communication makes me feel so terrified I am Sitting here shitting in my pants.

    The only possible reason the Dean could possibly have referred to this word is that he is a racist and seeks to put African-American students in fear. What other motive than racism could he possibly have? He could not possibly have have done it because he thought factually reporting a past event was OK, could he? The communication itself evidences otherwise, and therefore the communication itself proves that racism was his only possible motive for issuing it.

      1. Okay, that was clever.

  3. These people are studying to be lawyers. What are they going to do when a witness uses such language — curl up in a ball and cry until the judge dismisses the case?

    1. Demand that the judge throw the witness into jail — and/or summary execution.

    2. Indeed – this is why such characterizations make me skeptical.

      I was very apolitical in my youth, but I do remember having more self-regard than sense. I also remember being perhaps overindulged by college’s permissiveness and eagerness to please it’s students.

      These stories are just that, but hypercharged by partisanship and thus Very Important alluva sudden. You can find the same stories in the 1970s.
      How’d that generation turn out?

      1. “You can find the same stories in the 1970s.”

        Our memories of the 70’s are somewhat different.

        1. I certainly remember them in the late ’80’s

        2. I’m sure they are – I wasn’t alive then. But I’ve read some of the rhetoric about the 26th Amendment.

          What’s the matter with kids today is a refrain that goes back to Ancient Greece.

          1. I agree there’s nothing extraordinary about college students with outsized regard for their own uninformed opinions. We’ve all been there. I’m more troubled by a law school dean who validates their ignorance.

      2. “These stories are just that, but hypercharged by partisanship and thus Very Important alluva sudden. You can find the same stories in the 1970s.”

        Heck, you can even find similar stories in the 1950’s. I wonder if the stories about ’50’s were hyper-charged by partisanship as well.

  4. Let me add that I think the fear of using the word leads to ambiguity. If someone says that he witnessed Shirley call Jane an “n-word,” did Shirley say something that rhymed with “ten word” or did she say something that rhymed with “bigger”?

    1. Neither. Jane is Shirley’s NIECE.

      Lots of perfectly good words that start with N.

      1. Don’t call me Shirley.

  5. What also strikes me as tragic is how many of these coddled snowflakes embrace s*c**l*sm, which has murdered far more people than the KKK. Bernie Sanders would do more damage to the US and world economies than any previous US politician, even Hoover and FDR.

    By all means, smother reality and embrace nonsense, snowflakes. Then wail like demons 20 years later when the next snowflake generation throws you up against the wall for your old-fashioned devotion to what little liberty you have left.

    1. That’s actually happening in Higher Ed today — lots of Leftist professors state that they are terrified of their own students…

    2. Socialism is not Communism. Norway is not massacring their people.

      Damn, but that melodrama is impressive, though.

      throws you up against the wall for your old-fashioned devotion to what little liberty you have left.

      Kickin’ rad.

      1. “Norway is not massacring their people.”

        Norway isn’t socialist either.

        Its a free market economy with a large “safety net”. It has more billionaires per thousand of population than the US.

        1. Scandinavia calls it socialism. So does the Hated Sanders.

          If that’s not socialism, how do you differentiate socialism from Communism?

          If you want to argue that the difference is merely cosmetic, then it appears we’ve arrived in No True Scotland.

          1. “Scandinavia calls it socialism.”

            Do they?

            “In a speech at Harvard’s Kennedy School of Government, Danish Prime Minister Lars Løkke Rasmussen addressed the American misconception that the Nordic model is a form of socialism, stating: “I know that some people in the US associate the Nordic model with some sort of socialism. Therefore, I would like to make one thing clear. Denmark is far from a socialist planned economy. Denmark is a market economy”. wikipedia, “Nordic Model”

            “how do you differentiate socialism from Communism”

            Simplistically, socialism means the community owns the factory, communism means the government does

            Socialism is just a transition stage to communism according to theory.

            1. I never took you to be an adherent to Marxist theory. I’d say history has proven that particular trajectory to be wrong multiple times.

              Split hairs all you want – the Nordic Model is a pretty well known model of democratic socialism. It’s what Sanders talks about. Regardless of his nomenclature’s accuracy, I think it’s fair to say that Sanders doesn’t want a murder policy

              1. Yeah. Stupid Nordics don’t even understand the Nordic model.

                1. The point is Sanders approves of and aspires to American policies modeled on the Nordics’. You can’t tar him as a dreaded socialist, then turn around and say the Nordics aren’t.

                  1. Except his policies aren’t actually modeled on ‘the Nordics’ (it’s getting hard to count the number of times Sanders holds up Scandinavian countries while proposing policies that don’t represent what any of those countries are doing), and ‘the Nordics’ seem to actually grasp what the difference between socialism and market economies are.

                    Not only am I not sure Sanders actually understands the difference, but if he does, I’m inclined to think he’s a *real* socialist (even if he won’t always admit to it publicly). He’s certainly defended enough countries like Venezuela and Cuba when they did socialist things.

  6. The Dean is a craven moral coward who is ill-serving the students of his school. The protests are not about hurt feelings. They are about who is in control of the education given the students – the faculty or the student protestors.
    I agree wholeheartedly that the Dean is failing to ensure these students are getting an education relevant to the challenges they will face and, further, that I sincerely doubt most of those students will be fit for the practice of law. Which requires the ability to stand up to the worse human behavior has to offer.
    When I was in law school 30 years ago, we had a similar blob of jelly as one of the assistant deans, whose main purpose in life seemed to be trying to circumscribe non-left-wing free speech. One incident I remember was a set-to between two student groups, one showing a farmworker movie called “the Wrath of Grapes” and another hosting a party the same night called “I like grapes”, featuring plates of fruit and free pizza. Which drew a far larger crowd than worshipping Cesar Chavez.
    Our beloved assistant dean decried the pizza party as “deeply hurtful” and tried to enforce an apology. Didn’t happen. The pizza party group got grist for its periodical photocopied newsletter and added to every article thereafter the subscript “DH”, i.e., “deeply hurtful” and mocked that assistant dean into irrelevance.
    Today, I suspect they’d be run off campus.

    1. They definitely would have been tried in absentia by the institution’s Behavioral Intervention Team — and quite likely had some form of mental illness stapled to them.

      And yes, they’d have ceased to have been students….

  7. “the prosecution of a KKK leader for their speech at a rally

    “Their” is plural and hence means two or more…..
    And how many people were prosecuted?!?

    That’s where this is going….

    1. Sorry — I was originally discussing the members’ speech, but then reviewed the facts and noted that the focus was on Brandenburg’s own speech; while editing the sentence, I didn’t edit the “their” to conform with that (but I just did, in response to your post).

      I don’t believe, by the way, that “they” and “their” are always plural, and in this I’m in good company, from Shakespeare and the King James Bible to Austen, Thackeray, and beyond. But when I use them in the singular, it is to refer to people whose sex is unknown; I use he or she to discuss people of known sex.

  8. Regarding point 5, it’s worth noting that Johnnie Cochran’s famous argument about admitting Fuhrman’s use of the n-word in the OJ trial was based precisely on the premise that not only was it wrong to assume black people couldn’t hear that word and be impartial, but that the mere suggestion of that was offensive.

    How far we have slipped.

    1. “How far we have slipped.”

      Hard to measure when you’re sliding down a slippery slope into a bottomless pit.

  9. Perhaps, if you have to say it to express a sufficiently necessary thought, pronouncing it like the river would reveal the etymology, express the thought, and not phonemeically trigger. Law profs tend to develop case name pronunciations at odds with the “official” list at Yale, and it’s accepted as a harmless eccentricity.

    Alternately, there’s always “Throatwarbler Mangrove.”

    Mr. D.

  10. How representative of the student body were these complaining students?

    The squeaky wheel gets the grease, which is sure is an offensive phrase in so many ways.

    But the complainers, and the Dean who caved in to them, are going to give the world the impression that all the students are can’t-keep-up, can’t-stand-the-pressure snowflakes.

    1. Its not a snowflake move its a power move using a snowflake veneer. If you get a professor fired or suspended, or even just make a dean twist themselves in a pretzel to apologise, you are making a power move to show who is in charge.

      I can imagine a woke white “snowflake” listening to a remote lecture on his earbuds doing a slow burn that he’s still got to earn a grade rather than pass/fail. All the while his music is playing is playing on the speaker in the background:
      All my niggas ballin’ like Curry
      Ya bitch, mix that bitch like a McFlurry (Damn)
      All my chains icy, I’m lookin’ furry (Ay)
      Hmm, your bitch yeah she is purdy (Purdy)
      Nigga, hurry (Ay)
      I promise you, I’ll pop you like I’m Curry (Ay)

      Then the professor uses the “n-word” quoting a seminal Supreme Court decision….

  11. Prof. Curtis, IIRC, did some work on the Fourteenth Amendment, saying it applies to the states. That was some time ago, so I imagine he’s well-entrenched and tenured by now. Yet still he caved. Or at least the Dean *claims* he caved.

  12. If F. Lee Bailey had asked Furhman if he had ever referred to black people as the n-word in the last 10 years, Furhman could have honestly answered no.

    1. These kids will go from law school to the following:

      1. Judicial clerk ships,
      2. Associate attorney positions at major law firms,
      3. Attorney positions in government agencies,
      4. Attorney positions in major corporations, and/or
      5. Associate professor positions at law schools

      Those coming from elite law schools will be put on the “ceiling unlimited” track where they can aspire to reach the very top (as opposed to the rest of us who get to do the work but never reach leadership or executive positions). With luck, these kids will never face the real world but they will get to make and/or enforce the rules that the rest of us have to live by.

    2. At first he did. His first question was something like “have you ever referred to a black person as a _____ in the past 10 years?”.

      But Bailey was very smart. He then broadened his question in his follow ups, and Fuhrman has admitted he didn’t quite get what Bailey was doing.

      This is all on the prosecutors, though. Once Ito ruled, contrary to caselaw, that it could come in, it was perfectly clear even without the tapes that Fuhrman had said it. You had a bunch of witnesses, some of whom thought OJ was guilty, who had come forward to say it.

      The prosecutors, who work with the LAPD in every case and who relied on police perjury to get convictions, didn’t have the balls to sit a high ranking LAPD officer down and say “look, we know you said the n-word in the past 10 years, so you are going to get up on the stand on national television and admit you said it or WE’LL treat you as a hostile witness and bring it out ourselves, and you will become a social pariah who cared more about his own image than ensuring justice was served”. But they needed to do that. Every prosecutor is obligated not to adduce evidence they know is false.

  13. I generally agree this this post, but I can imagine Prof. Volokh’s kid in, say, third grade:

    “Mrs. Johnson, my daddy explained the use-mention distinction to me the other day. Anyway, I know we can’t use ‘shit’, ‘piss’, ‘fuck’, or ‘giant pulsating donkey boner’, but can we use ‘ass’?

    1. That kid sounds like the “Johnny” character is many jokes about naughty boys.

      1. One of my favorite jokes: First day of school. Third-grade teacher asks the kids what they did during Summer vacation.
        Mary: “I took a ride on the choo-choo.” “Nice, Mary, but we’re using grown up words now — you took a ride on the train.”
        Billy: “We got a new bow-wow.” “Great, Billy, but we’re using grown up words now — you got a new dog.”
        Johnny: “I read Winnie-the-Shit!”

    2. TwelveInchPianist: I appreciate your implied point (and the ambiguity of the word “ass”) — but, thankfully, law school is not the third grade.

      1. Yet.

        Which is your point, I think.

  14. Criminal defendants should watch their language – think of the poor law students who have to learn about what they said!

    “Give me the money or I’ll kill you – and I assure you I’d say this regardless of what race you were.”

  15. You’d think institutions of learning would appreciate trying to educate students that a “bad” word can be said in contexts without intending offense, and the listener can choose not to be offended by it if no offense is meant.

  16. A society of officious intermeddlers eventually gets tedious. If there was a genuine accord between the Dean and the Professor, and education will now continue apace with no oxen being gored, I see no victims here.

  17. Two thoughts –

    i) As years pass I am increasingly offended by being “profiled” on all manner of government and corporate “forms” and “applications” as “White” without an opportunity to show pride in my ethnic origins or my grandparents native tongue. Now if there was a “White” Congressional Caucus or religion of “White Liberation Theology” I would not subscribe but at least I would “feel” equal. And,

    ii) It would appear the Dean needs to be “schooled”. I nominate Former LA Senator Elbert Guillory; let us begin with one of his 2015 campaign ads – https://www.youtube.com/watch?v=6HA-HYYHfNg

  18. “most offensive word in the American language — the n-word”

    The Dean thinks there is an “American language” separate and apart from English.

    1. On this point at least the Dean could cite H. L. Mencken.

    2. Bob,
      Seriously? I take it you have never been to England. Or ever watched British shows. There are many many words commonly used there that Americans might find very offensive. Other than ‘nigger,’ I think “cunt” is about at the top of verboten words here in America. But jokingly referring to a friend as a silly cunt is commonplace in England. “Having a fag” or smoking a fag is also common–or, at least, was when I lived there. So, the Dean was not only making a valid point; he was making a necessary distinction…albeit one that flew over your head.

  19. The dean’s written apology sounds just like something thugs from the Red Guard would have forced out of some Chinese academic during the Cultural Revolution. Given the circumstances that existed in China during that time, I can forgive anyone who found it necessary to issue such a statement, but forgiving someone who signed that kind of document in 2020 America is far more difficult. If anything, academic leaders are supposed to stand for intellectual integrity, not for the lack of it.

    1. “… academic leaders are supposed to stand for intellectual integrity…”

      They wouldn’t BE academic leaders if they had intellectual integrity…

      To get ahead in academia today, one has to be intellectually flexible enough to never offend any of the protected groups, and has to admit that 2+2 equals whatever he/she/it is told that it must equal today.

      1. The Conspirators proved quite the counterexample.

  20. The argument that “snowflakes” will somehow curl up and die or not be able to handle their careers as lawyers afterwards if not exposed to offensive language is absurd.

    That said, law professors absolutely should be able to quote words as they were spoken and should do so without euphemism. Because if we censor these words, where does it stop? What other uncomfortable truths do we learn are better left unspoken? And are we to presume that students really are incapable of distinguishing between the quoting of words and the actual epithet being directed at them? Of course students are fully intellectually and emotionally able to make that distinction and should be expected to do so.

    This does not imply gratuitously exposing students to speech that makes them feel uncomfortable. But if a professor has a good reason, for example, better communicating the issues at stake in a case, they should use these words. Obviously, different persons will have different views on what is necessary or useful or not, but in general our classrooms should have room for different opinions on what is useful and we shouldn’t shield adults from truths only because it makes them uncomfortable. That discomfort is part of the stakes that the law is called upon to resolve. That discomfort is what makes our law both infuriating and a source of hope. That discomfort provides the motivation to fight for change and avoid the danger of backsliding. And most important of all, that discomfort is part of our history as a nation that we hope to overcome.

    Lawyers are sometimes elite members of our society. Especially when they are such, they should not be immune to or shielded from truths that make them uncomfortable. Not just for their own sake, but the sake of those they represent.

    1. I agree for a different reason — one tends to see what one expects to see — regardless of what is actually there.

      The average law student of today was born in the 1990’s — with parents who themselves have no adult memories of 1966 and what society was like back then. Much like none of us have a context of understanding the terror that a shout of “fire” had in a crowded theater back in 1919, when movie film was made of explosive nitrocellulose and modern fire alarm systems didn’t exist.

      Hence it is the duty of the professor to put the case into the context of the times. That means not only mentioning exactly what it was that Brandenberg actually said, but explaining why the state would have had a greater police interest in stopping him back in 1966 than today.

      It’s like trying to explain _Lord v. Veazie_ to students who have always seen logs going to the mill via truck — and don’t know that logs were once transported down the river, a practice Maine banned in 1975.

    2. The argument that “snowflakes” will somehow curl up and die or not be able to handle their careers as lawyers afterwards if not exposed to offensive language is absurd.

      It may or may not be, but it is not what anyone said. What was said was that they will be exposed to offensive language in their careers, and if they are unable to handle it now, if they are trained now to think that they can run to an authority figure to shield them from such language, then they won’t be able to handle it in their careers.

      Their complaints were immature; the dean’s patronizing response was the problem.

  21. “I also don’t believe that black law students (or other law students) are likewise so easily wounded. I believe that students and lawyers of all identities are perfectly capable of handling the often ugly reality of the world, as reflected in the precedents and in the cases before them.”

    you have good Prof. Volokh believing, and you have the substantial numbers of actual law students behaving in significant ways that show him to be wrong. I tend to believe in the students actions and deeds as the true reflection of reality.

    1. I think there’s a difference between “upset” and “injury”.

      Indeed, I really think that the appropriation of the term “injury” or “harmed” is one of the worst aspects of the modern political correctness debate.

      I do understand there’s a sense in which things that upset a person do injure them. But it’s a really amorphous, psychic injury, and the whole point of using the terminology of “injury” is to attempt to conflate, e.g., people who get upset at something said on a college campus with people who got bricks thrown through their window by the KKK or who had dogs sicced on them in Selma.

      The students are upset. They don’t like hearing the word. There are probably some less savory motives too (like the joy of exercising power over an authority figure like a college professor), but certainly they are upset by hearing the word.

      But that doesn’t mean they are really injured by it. Indeed, far from being injured, there’s probably a huge pedagogical benefit from being exposed to distasteful fact patterns in a law class.

      And I don’t think we should particularly credit students’ accounts when they are clearly being performative.

      1. What I notice is the utter contempt that the older generation — who personally experienced the actual racism — have for the young Black men of today.

        1. I suspect it is only a small percentage of black young adults- specifically, some folks at selective colleges along with their white allies- who feel this way. But they get a lot of attention.

        2. I would not be shocked to learn that those who complained were white, not black.

  22. Coincidentally, this is the subject of the most recent (rerun) set of “Doonsbury” strips. A student gets a bad grade (well-deserved!) in a class, and is triggered. We’re up to the actual trial right now–he, of course, sued for all his supposed damages. Original strips must have been at least a decade or two old by now. Everything old is new again….

  23. He said “Jehovah.” Stone him!

  24. This is curious coverage from a blog that censors words such as “c@p succ*r” and “sl+ck-*aw” and will ban a commenter for making fun of a political group.

    1. Fortunately for you, they don’t yet ban people for being so far from right they’re not even wrong.

    2. “This is curious coverage from a blog that censors words such as “c@p succ*r” and “sl+ck-*aw…”

      The nice thing about a blog with comments is that we can explain things to each other and help each other understand things.

      You see, Arthur, you can say cock-sucker or slack-jaw, or nigger for that matter. You just can’t call other commentators cock-suckers or niggers. That’s the whole distinction that the post is talking about.

      OK, I’ve done my good deed for the day, enlightening my fellow man and helping others understand.

      1. I didn’t even know that “slack-jaw” was an obscenity — nor do I really want to know why…

        1. It’s not an obscenity — it’s just a personal insult, with an extra dash of superciliousness thrown in.

  25. I wonder if the people now scrying hardest time find an instance where a white person gives perceived offense to a white person, are exactly the same personality type as those who a century ago scried hardest to spot an instance of a black person offending a white person and were eager to call in the lunch mob.

    Indeed, I suspect the motivation is the same – virtue-signaling righteousness to ones crowd and getting pleasure from putting the bad people down – and I suspect if these people had been around a century ago, they would have been the ones at the head of the lynch mob holding the noose and urging the crowd on.

  26. Some comments have prompted me to modify my views.

    These students probably aren’t “snowflakes” at all. That is, I expect that when faced with someone who can retaliate against them (like a judge or boss, etc.) they will be respectful and ignore bad language. Only in the face of someone they think they can bully and intimidate will they “discover” that they have been offended and demand punishment.

    I think it’s called “kiss up and kick down.” If the judge or senior partner farts, proclaim that it smells like roses. If the janitor doesn’t doff his cap rapidly enough, go to HR and say he used some bad word.

    1. “Lawful evil creatures consider order as the means by which each group is properly placed in the cosmos, from lowest to highest, strongest first, weakest last…lawful evilness allows each group to structure itself and fix its place as compared to others, serving the stronger but being served by the weaker.”

      /Gary Gygax, Dungeon Masters Guide, 1979 edition, p. 23

  27. It is well-nigh incredible, the amount of effort people spend these days in pretending to be offended.

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