Free Speech

"The Neoracism in the Suspension of a Law Professor for Nothing Whatsoever at the University of Illinois in Chicago"


That's from a John McWhorter column [link fixed, d'oh!] on the Kilborn controversy, which came out in late January but which I somehow missed; here's the introduction:

Law professor Jason Kilborn cited the N-word (and the B-word) on an exam thusly: n****, b****. It was in a question about an employment discrimination case. He has done so for years previously to no comment – as all reading this but a sliver would expect.

But this year, a group of black students initiated a protest against him for harming them in exposing them to this expurgated rendition of the N-word. That is, in a class training them in litigation in the real world.

One black student claimed that they experienced heart palpitations upon reading the words. During an hours-long Zoom talk with a black student representing the protesters, Kilborn made a flippant remark to the effect that the law school dean may suppose that he is some kind of "homicidal maniac" – upon which the student reported to the dean that Kilborn indeed may be one. Kilborn is no longer teaching the class, is relieved of his administrative duties, and because of the possible physical threat he poses to black students because of the Hyde-like tendency he referred to, he is barred from campus.

No, this is not an SNL parody or a heightened storyline on a show like The Good Wife or Law and Order. This has actually happened, to and with and by real human beings here and now….

(For a relatively new version of Randy Kennedy's and my draft article on this general subject, see here.)

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  1. The link to the McWhorter column goes to your prior post; I believe the column is here:

  2. The embedded link brings up your earlier post, not the McWhorter Substack piece.

  3. One black student claimed that they experienced heart palpitations

    I wonder if that student was familiar with many popular HIP-HOP songs.

    If there were a hearing and the student were called to testify what might happen. I’m sure rebuttal witnesses could be called.

    1. The problem with the Behavioral Intervention Teams is that they are Star Chambers — there is neither a formal hearing nor rebuttal witnesses.

    2. Under Clinton, an artist was paid by the National Endowment for the Arts for his piece, a cross upended in a jar of urine. This was defended because The People needed to see alternate viewpoints. Pissing people off was a noble goal, you see.

      If such things give heart palpitations, isn’t that a good thing? Makes one stronger?

      Similar issue when the pres of Harvard, I think, threw down a challenge gauntlet wondering rhetorically why there weren’t more women at the tippy top of scientific achievement. One such wrote she couldn’t believe what she was hearing and felt like she was going to feint.

      This was likened to an antebellum belle about to collapse into a pile of crinoline with a case of the vapors upon hearing the words of some rake.

      For 80 years, feminism railed to escape the stereotype women were these fragile creatures the law, and men, needed to protect.

      But, once finding they had political power by swooning in such manners, just smash those decades of work to pieces in seconds for this new vector to power.

      1. Sticks and stones may break my bones, but names will give me great political power to crush mine enemies!

      2. Well, if she said she felt like she was going to “feint,” it sounds like she actually did by expecting us to interpret it as “faint.”

  4. Stick and stones are no match for the power of words on the weak minded. And if there is anything we need it’s more weak minded lawyers.

  5. Free speech is history

    1. The kind where you could say whatever you wanted to and nobody was allowed to react to what you said isn’t history, in the sense that it has to have existed at some point in time to be history.

      1. “React”. This isn’t reaction to speech, it’s punishment for speech.

        1. These are not mutually-exclusive options.

          1. Ok, it’s true: If I said “Hi!” to you on the street, and you told me to bugger off, it would be a “reaction” if I walked away giving you the finger, or if I drew and shot you dead.

            But they wouldn’t be relevantly equivalent reactions.

            1. If I just laughed at you thinking you were such a deep thinker, this would be a fair reaction.

              1. If I just laughed at you thinking you were such a deep thinker

                What’s laughable here is your pathetic attempt to deflect from the obvious stupidity of your argument. You’re like the morbidly obese kid who calls all the average-sized kids on the playground, “Fatso”.

                1. And you’re like the ignorant twit who gets on the Internet and calls all the people smarter than he is “stupid”.
                  But you knew that…

          2. Well yeah they’re not mutually exclusive. The point you’re trying to avoid is that it’s the punishment that threatens free speech, not the remark.

            1. People have been free to punish you for things you said since the invention of spoken language. There has never been a time when this was not true.

  6. I once gave an invited lecture about interviewing techniques including what must be avoided and what biases to be aware of in yourself or your interviewing colleagues.
    In example of what are impermissible biases I used the sentences
    “Those people make me nervous”
    “Those people are difficult to train / manage”
    ““Minorities have to be qualified; whites only need to be qualifiable”

    I was asked for the slides that I used and permission to distribute them. After I sent them to the organizers, I was strongly requested multiple times to remove references to “Those people.”
    I refused saying that those were the words I used with no objection from the audience. The group could distribute the slides as I wrote them or they did not have the permission to distribute my work.
    That was ten years ago. The disease were see now has been gathering steam for some while.
    I was asked for

  7. The kids are not alright. And it’s our fault.

    1. You must have a frog in your pocket. It sure ain’t my fault.

    2. The kids have a different attitude to these things, and you can’t deal.

      1. The kids have a different attitude to these things…

        compare (source):
        Moral reforms were designed to eliminate vices that might interfere with the religious revival necessary for the coming rule of God. Horse racing, gambling, and profanity were banned, as were profane songs and indecent dress. Offenders, including blasphemers and sexual deviants, were punished by torture. Savonarola organized young boys to help enforce his policies. These groups of children roamed the city collecting love songs, profane books, carnival masks, and other immoral items, which were piled into a pyramid sixty feet high and sixty feet on each side and burned as vanities (hence “bonfire of the vanities”).

        1. Sounds like we’re getting off lightly.

      2. Do you really think black people get heart palpitations when they see an expurgated version of the word “nigger”?

        1. No more than I believe you that you object to being identified as a racist.

          1. Com’n, James. That is an exaggeration by the grievance group.

          2. And you don’t even have the courtesy to call me a “r*****”. Wow.

            1. If the R***** shoe fits, go ahead and wear it.

        2. Why do conservatives — including right-wing law professors and Republican law blog commenters — strive to use that word so frequently? This is at least the fifth thread in which that word has been used at this White, male, conservative blog during the most recent month, for example.

          (Other than the strong vein of diffuse bigotry found throughout the foundation of the current conservative-Republican-Federalist political and academic coalition, I mean.)

          Carry on, clingers.

          1. “this White, male”
            the true racist, bigot speaks!

            1. I can understand why movement conservatives would wish to avoid the subject of how strikingly White and remarkably male the providers of this blog’s content are, particularly in the context of modern America and the current academy. The percentage of content provided by non-White, non-male Conspirators might approximate one percent. In modern academia, that’s quite a feat — and one difficult to ascribe to happenstance.

          2. The word’s been in the news quit a bit recently, Arthur.

            So people are discussing it.

            And here is a case where someone claims to have gotten heart palpitations upon seeing an expurgated version of the word. Sure seems like something worth discussing to me.

        3. Are you extrapolating from one person to the entire black population of the US?

          1. No. Do you think any black people get heart palpitations from seeing the letter n followed by five underscores?

            1. Almost certainly there are. You can divide them into two groups. Those with severe heart disease, not long for this world, and those who are mentally ill.

              There might be some overlap, admittedly.

              1. Which category do you place yourself in?

            2. Can’t really say, but more white people than I would like to think seem to get erections from it.

              1. Quite the imagination you’ve got there.

                1. Not to kinkshame anyone or anything.

                    1. I’m lying, you should be shamed.

    3. “The kids are not alright. And it’s our fault.”

      The kids are fine, despite your best efforts.

  8. I plan to mandamus the IRS Non-Profit Office to end the exemption of any agency that shows the very smallest viewpoint discrimination. I want to reverse the doctrine that the taxpayer has no standing.

    The alternative is violence in the absence of legal recourse. Democrats burned our cities this summer, and now Democrats are on every commercial for big corporations. Violence sure does work. Any corporation with a Democrat in its commercial should be boycotted.

    1. Prof Volokh should comment on my use of the D******* word.

  9. Professor: We are the Profs who say….. “N****”!
    Arthur: (horrified) No! Not the Proffs who say “N*****”!
    Professori: We are the keepers of the sacred words: N*, B*, and Nee-womm!
    Arthur: Those who hear them seldom live to tell the tale!
    Professor: The proffs who say “N****” demand….. a sacrifice!
    Arthur: Proffs of N****, we are but simple travelers who seek the enchanter who lives beyond these woods.
    Professor: N****, N****, N****, N****, N****
    Arthur: No! Noooo! Aaaugh! No!
    Professor: We shall say “N****” again to you… if you do not appease us.
    Arthur: Well what is it you want?
    Professor: We want….. total fealty

    1. The more apt Monty Python routine, I think is the Life of Brian Jehovah scene.

      1. It is a sign! He has left us a sign!

  10. There was a very popular song last year called “WAP” that was celebrated and outright gushed over by the New York Times–and that used the infamous word. So far as I know, no one from BLM expressed the slightest discomfort with the song’s use of the word. I wouldn’t be at all surprised if the two students who complained about the law professor’s use of the word are fans of the “WAP” song.

    1. “There was a very popular song last year called “WAP” that was celebrated and outright gushed over by the New York Times”

      Was this an attempt to be clever, or just coincidental cleverness?

  11. A lawyer who cannot handle a word is like a doctor afraid of blood.

    I don’t want them practicing.

    1. I have no idea if he’s correctly describing his symptoms or not…I won’t insult a potentially-litigious person by speculating about his motives.

      I will say that *other* people will get the message that it is a useful thing, power-wise, to be able to claim those symptoms.

      1. “I will say that *other* people will get the message that it is a useful thing, power-wise, to be able to claim those symptoms.”
        Just so. It is a power ploy.

        1. It’s all about those *other* people. You can’t trust THEM at all…

    2. “I don’t want them practicing.”

      If they don’t practice, how are they supposed to get better?

  12. This (((white, male))) blog has gone who knows how many days without printing an initial letter followed by several asterisks.

    Get ready, clingers, soon you’ll have those racist asterisks shoved down your throats sideways.

  13. Of course, all PC is case. This loss of freedom is a 100% lawyer operation. The lawyer profession is the most toxic occupation, 10 times more toxic than organized crime. It must be crushed to save our nation. The administration of the school is afraid of ruinous litigation, and has to kowtow to crybaby Democrats. Crush this traitor profession.

    1. More toxic than the stay-at-home twit with an Internet connection?

  14. Conservatives used to believe that all this college wokie snowflake stuff would come crashing down when said Snowflakes left college for the “Real World”.

    One just has to look around at your younger staff, think for example of how snowflakes faired in the NYT newsroom.

    We’re F’d!

    PS: HR departments are the worst…

    1. “Conservatives used to believe […]”

      Who cares? They choose to believe all kinds of crazy shit.

      1. As does the left. Both are rife with crazies.

        1. The left send their defeated champions off to exile. The Conservatives are still kowtowing to Mr. Trump, despite his not yet having done anything to earn it. How’s work coming along on that “Better than Obamacare” healthcare bill you’re going to sign on Day One, Mr. Trump? Is it almost finished?

    2. Conservatives used to believe that all this college wokie snowflake stuff would literally lead to the end of western civilisation, mostly it’s still just cringeworthy incidents with regrettable heavy-handed official responses and conservatives dying dramatically and endlessly on stage to symbolise freedom’s demise.

    3. ” think for example of how snowflakes faired in the NYT newsroom. ”

      They probably outperformed you in knowing whether to use the word “fared” or “faired” when writing for public consumption.

  15. Surprised there has been no commentary on the white male Michigan Tech professor who complained that a senate resolution discriminated against him on the basis of gender and race and now there is a petition to fire him for such a complaint. (Which I believe firing an individual who protests racial discrimination could be discriminatory action/retaliation in of itself).

    1. To question the validity of someone’s offense is sufficient to engender cancellation as well.

      Ehhh, assuming it’s an item from a pre-approved list.

    2. Tech sure has changed since I was there in the 70’s, that’s for sure. Back then they actually MEANT the Tech fight song.

      “We are, we are, we are, we are, we are the engineers!
      We can, we can, we can, we can drink all of forty beers!
      Drink up, drink up, drink up, drink up, and come along with us,
      for we don’t give a damn for any man who don’t give a damn for us!”

      1. “Tech sure has changed since I was there in the 70’s”

        They’re smarter now.

  16. “cited the N-word (and the B-word) on an exam thusly: n****, b****”

    Which B-word? There is one that refers to a female canine, and another that refers to someone whose parents were not married (and probably more). If I count asterisks and assume a one-for-one substitution I would think the female canine, but in that case it’s not the usual N-word.

    1. You’re free to substitute as you see fit. I mean, obviously the words intended are “national” and “broadcaster”, but you can put whatever offends you in there and nobody can tell you different.

      1. And you’d be just as much the fool.

          1. No, just you.
            You seem to be the thin-skinned extremist on the left here.

            1. Eek! There’s leftists everywhere!

              1. …seems to be mainly the imaginary type, though.

  17. Professor Volokh, are readers meant to understand that by use of, “Neoracism,” they are being instructed that avowed anti-racism has become the real racism?

    1. Anti racism has in fact become the real racism .

      1. Anti-racism has become the cultural Commies. Zero tolerance for any cultural Commie. They must be purged from all government involved agencies.

        1. At long last, sir, have you no shame?

          1. I find no shame in complying with IRS rules on non-profits.

            1. Have you no functional neurons? Can you not trace the links between related items?

              1. Hint: Try Googling the phrase “at long last, sir, have you no shame?” if it doesn’t seem familiar.

      2. No it really, really hasn’t.

    2. EV is of course quoting the subtitle of the linked McWhorter article. And McWhorter explains his meaning of the term it in his essay “The Neoracists”.

      1. Sure, I got that. Volokh chose the quote for a headline. I’m unclear what Volokh endorses. So I asked.

        1. It’s the subhead of the article he linked to. Would you rather he chose “Black Fragility”?

    3. *looks at Stephen’s comment, shocked it’s not 5 paragraphs*

      That word count is rookie numbers, you gotta pump that word count up!

      1. Yeah, mad_kalak. You gotta write long on this blog. Too many knee-jerk jerks with reflexive bad answers.

        At the cost of some length in your comments, you can preclude whatever nonsense you can anticipate (maybe, “suppress a little,” would be better than, “preclude”), and trim the dialogue down to more-substantive reading. Of course I prefer succinct clarity, but I rarely have time to deliver it.

        Long enough for you?

      2. “That word count is rookie numbers, you gotta pump that word count up!”

        AND you forgot to rant about section 230 and how it oppresses you.

    4. I wouldn’t go so far as to say “the” real racism, because that would imply there aren’t other sorts of real racism about.

      But it has certainly become “a” real racism. Once you decide all members of a race are guilty of something on account of their race, how can you NOT be a racist?

      And it is decidedly more likely to be imposed with the force of government than more ‘conventional’ racism.

      1. ” Once you decide all members of a race are guilty of something on account of their race, how can you NOT be a racist?”

        Depends on how you reach that decision.

    5. If the ‘new racism’ is when a college administration reacts poorly to an incident that could probably have been talked through calmly but firmly, then the ‘new racism’ is basically ‘poor HR.’

      1. “Poor HR” is perfectly capable of being racism, Nige. Historically a lot of racism WAS “poor HR”, as a matter of fact.

        The fact of the matter is that you’re going to encounter words you don’t like in the course of employment law, (Life in general!) and you’ll have to know how to deal with it. And you can’t learn how to deal with it if they can’t even be referred to in the course of your education.

        Anybody who can’t deal with words being referred to this obliquely really needs to go into a less stressful line of work. Something that involves long periods of quite solitude, and has good psychiatric coverage. Maybe become a Trappist monk?

        That’s what the complaining students needed to be told.

        1. ‘“Poor HR” is perfectly capable of being racism,’

          Yes. But not this.

        2. “The fact of the matter is that you’re going to encounter words you don’t like in the course of employment law, (Life in general!) and you’ll have to know how to deal with it.”

          So someone learned that the way he did it wasn’t the right way to deal with it… or did anyone learn anything?

  18. Well, if nothing else, Black law students are learning the power of aggrievement.

    1. Which is why I refer to the “protected” groups as grievance groups.
      Interestingly the one grievance group that is paid scant attention to and is very widely discriminated against is the group of people over 60, that is even more true if the person is male and/or white.

      And before James can fire off a snark, that dscrimination does NOT have vaccination priorities as a counterexample.

      1. I’m a white male over 50 in the technology business. AND I’m not old enough to go to the front of the line for vaccination. Tell me all about the discrimination, I’ve never heard of it.

        1. When is the last time that you applied for a job?
          If you have never heard about age discrimination, you’re lying plain and simple.
          The comment “X is overqualified for the job is age discrimination.” It is used frequently as an excuse to hire a kid at much lower pay.

          And I anticipated your BS about vaccinations. If you have a problem with it why don’t you file a suit against the CDC

          1. Are you really this stupid?

            I mean, REALLY?

            You can’t possibly be…

            1. Wow, you don’t even have the courage to answer the question. Instead you resort to a bullshit insult. I;ve hired hiundreds in my career. How much experience do you have? Come on give us a number and no BS.
              Are you really that cowardly? Really. You answer is typical of your usual modus operandi.

              1. I resorted to an insult, but it isn’t bullshit.
                You really ARE stupid enough to double down on your own stupidity.

  19. As I related in the Thursday thread, not making sense is the point of exercises like these.

    Just as O’Brien made a point of holding up four, not five, fingers, when he demanded Winston see five, the point here is to get people used to submitting to arbitrary and unreasonable actions.

    If people expect demands to be reasonable, they tend to evaluate them for reasonableness, and fail to comply when they fail to be reasonable. if your goal IS to exercise power with consent, to reasonable ends, that’s fine, even preferred.

    But if your goal is absolute, unreasoning obedience, you don’t want people expecting your demands to be reasonable, and evaluating them on that basis. And the best way to achieve that IS to be unreasonable, and prove to people that there’s no point in expecting you to be reasonable, just obey.

    A lot of the craziness going on right now makes perfect sense if you assume we’re being conditioned to accept life in a totalitarian state.

    1. Yep. It has the effect of keeping most reasonable people mum. Which is the point.

      Don’t be the first to stop clapping for Stalin. In modern America you won’t go to the gulag, not yet anyway, but you’ll lose your ability to earn your daily bread.

    2. “But if your goal is absolute, unreasoning obedience, you don’t want people expecting your demands to be reasonable, and evaluating them on that basis. And the best way to achieve that IS to be unreasonable, and prove to people that there’s no point in expecting you to be reasonable, just obey.”

      A concise summary of Trumpism, but it doesn’t seem that Mr. Trump is the one complaining in this case.

      1. It’s March 5th. Is Trump President again, yet?

        1. Now it’s the 6th. Somebody better check to see if the corpse has risen.

          1. Egads! Now it’s the 11th. Did he oversleep?

      2. I don’t recall Trump leaning into the “just obey” part of that formula much, though I’ll agree that he was occasionally unreasonable.

        1. Brett,
          He was so unreasonable most of the time that Biden did not even have to mount much of a campaign to defeat him. I’d say that he displayed all the marks of a fool.

          1. How much do you have to campaign when you’ve got most of the media operating as unpaid campaign workers?

            1. Against the most unpopular President of the modern day? Not very.

            2. Brett,
              Trump was Biden’s most forceful campaigner.

            3. So much for the myth of the master media manipulator.

              1. Nige,
                I don’t think he failed at manipulating as much as he created a powerfully compelling message that he was unfit to be President.
                Had he just told the public to follow the CDC and expressed sympathy for those lost to or damaged by SARS-CoV-2, he could have won easily.
                Instead he managed to campaign vigorously against himself every day.

                1. Funnily enough I thought that was also the compelling message of his 2016 campaign.

                  1. Perhaps, but he had not managed to alienate so many people in 2016 and did managed to tap into working class anger effectively.
                    True that he used the same style in 2020, but he also made damaging statements that eroded segments of the public every day.

                    1. In 2016, Donnie had the distinct advantage of running against someone even more unpopular than he was, and then he followed up by spending 4 years not even trying to become more popular, and surprise! Not getting to run against Hillary again, he didn’t have any goodwill in the tank to draw on.

                    2. Not more unpopular enough to lose the poular vote, always worth remembering.

                    3. If the popular vote counted for anything, which it does not.

                2. Admittedly it could have looked that way, after the media got done filtering everything he had to say.

                  This is a serious challenge to the GOP no matter who they run in the future: Once you’ve got the media pretty much united against you, there’s not really anything you can say that will help you, because, who would hear it?

                  1. Who would hear the eternal right wing whining about the media? Everyone, over and over again. If anything the media went easy on Trump.

                    1. That is because they did not have to do anything to wound Trump. He was shooting himself in various body parts every day.

                    2. The media was against him because they just reported the things he did and said.

                    3. Accurately reporting what Trump says and does is actively working against him.

                  2. “Admittedly it could have looked that way, after the media got done filtering everything he had to say.”

                    All the incredibly biased press had to do was get out of the way, and let Trump deliver his message right to the people, instead of hiring competent press secretaries or bothering to lie convincingly.

                    It was always
                    A) tell some batshit-crazy lie
                    B) Leave the press-secretary dangling trying to find a way to make the batshit-crazy lie vaguely plausible
                    C) Double down on some new batshit-crazy lie that contradicted the plausibility of whatever the press secretary managed to come up with.
                    D) Look confused, wondering why the majority of Americans weren’t simpering and applauding on all the cues.

                  3. Brett,
                    That is just whining.
                    It’s blaming the media for Trump”s single handedly executing the most spectacular political flame-out in the past 50 years

                    1. It wasn’t entirely single-handed. He believed the Congressional R’s would be able to put together the “replace” part of his “repeal and replace” plan for the ACA, and he, and we, are still waiting for that replacement bill. any day now… He put Jared in charge of just about everything, and surprise?(!) Jared wasn’t able to solve all of the nation’s problems on a tight schedule and a budget of $0.

                3. “I don’t think he failed at manipulating as much as he created a powerfully compelling message that he was unfit to be President.”

                  This implies that he somehow managed to tell the truth about something.

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