The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
As Prof. Randall Kennedy and I have noted, slurs ("nigger," "nigga," "fag," "cunt," "kike," "spic," etc.) appear in over 10,000 court cases available on Westlaw, as well as a vast number of briefs and other court filings (most of which aren't even visible on Westlaw).
Unsurprisingly, after class last Fall, a student at Rutgers Law School in New Jersey asked a professor about one of those 10,000+ cases—State v. Bridges (1993), decided by the New Jersey Supreme Court. The passage, from which the student quoted part of the last sentence, reads:
On September 2, 1988, defendant, Bennie Eugene Bridges, attended a birthday party with some fifty to sixty young people for sixteen-year-old Cheryl Smith in the basement of her home in Roebling, New Jersey. At about 12 a.m., Bridges had an argument with another guest, Andy Strickland. Shortly after the heated exchange, Bridges left the party, yelling angrily into the basement that he would soon return with his "boys." As he drove past the house on his way to Trenton, Bridges again shouted, "I'm going back to Trenton to get my niggers."
The student quoted the word, I take it on the sensible theory that, when you're studying court cases, you're entitled to talk accurately about what those court cases say. And the material appears to have been quite closely linked to the topic of the discussion ("the circumstances under which a criminal defendant could be held liable for crimes committed by his co-conspirators"). According to the student's lawyer:
The textbook contained only a summary of the case, which left it unclear why the defendant would have been charged with conspiracy to commit murder when he was not involved in the shooting in question. The student wanted to know more so she looked up and read the full case on Lexis [including the passage quoted above], which shed significantly more light on the situation …. This went a long way towards explaining why the defendant had been charged with conspiracy.
So she was doing what any curious student should do—delving further into the facts of a case and reporting back what she had learned.
The N.Y. Times (Tracey Tully) reports what happened then:
In early April, in response to the incident, a group of Black first-year students at Rutgers Law began circulating a petition calling for the creation of a policy on racial slurs and formal, public apologies from the student and the professor, Vera Bergelson.
"At the height of a 'racial reckoning,' a responsible adult should know not to use a racial slur regardless of its use in a 1993 opinion," states the petition, which has been signed by law school students and campus organizations across the country.
"We vehemently condemn the use of the N-word by the student and the acquiescence of its usage," the petition says.
Professor Bergelson, 59, has said that she did not hear the word spoken during the videoconference session, which three students attended after a criminal law class, and would have corrected the student if she had.
Soon after the professor's office hours in late October, a white classmate contacted the student who quoted the epithet to say that she should have avoided using it.
The student, a middle-age woman studying law as a second career, offered her phone number to continue the discussion and also arranged for a lengthy conversation with the third student, her lawyer said.
One of the students later told a Black classmate; a recording of the meeting, which is no longer accessible, was discovered online and shared.
Black students from the class who were offended by the slur expressed their concerns to another professor, who alerted a dean, David Lopez, soon after the incident, several officials said.
There's a lot more in the article; those who have read my previous posts on similar controversies, or Randy's and my just-published article ("The New Taboo: Quoting Epithets in the Classroom and Beyond"), know what I generally think of all this. But here I just wanted to mention a few items:
[1.] Though one of the Rutgers co-Deans, David Lopez, asked that people not quote such slurs, even when discussing a precedent that mentions them ("I share the views of several of our faculty members who understand and express to their students that this language is hateful and can be triggering, even in the context of a case, and ask that it not be used"), I'm glad to say that several Rutgers professors have publicly disagreed:
Among the professors who have signed a statement in support of Professor Bergelson and the student are some of the school's most prominent faculty members, including [former Rutgers deans] John Farmer Jr., a former New Jersey attorney general, and Ronald K. Chen, the state's onetime public advocate….
"Although we all deplore the use of racist epithets," said Gary L. Francione, a law professor who also signed the statement, "the idea that a faculty member or law student cannot quote a published court decision that itself quotes a racial or other otherwise objectionable word as part of the record of the case is problematic and implicates matters of academic freedom and free speech." …
Prof. Adam Scales is also expressly quoted as someone who opposes any such expurgation policy. So is Prof. Dennis M. Patterson, who is quoted specifically as to the unconstitutionality of outright prohibitions on such quotes. Others have similarly spoken out this way to their colleagues.
[2.] I'm also pleased to say that Prof. Bergelson and the student have refused to provide the public written apologies that other students have demanded. Prof. Bergelson, who was born in the Soviet Union, mentioned to me (in response to an e-mail I sent her) "the similarity between this attack on me and the Soviet collective condemnations and public self-accusations"; that was part of the reason for her refusing to apologize, I think.
And she should know: Her grandmother was executed by Stalin's regime in 1950, and another relative, the Yiddish writer David Bergelson, was executed in 1952 in the Night of the Murdered Poets. I can't speak for her, but I have often thought to myself: When others have paid so dearly for speaking the way they thought was right, how can we give in when the danger to us is so comparatively small?
The student is also represented by Samantha Harris, a leading campus free speech litigator (formerly at the Foundation for Individual Rights in Education). That too is very good, I think: Having an experienced free speech lawyer who can point out to the university the perils of violating students' rights is very helpful. (Of course, such lawyers can be quite expensive, even before any serious litigation begins; I wish there were funds available to help protect students in such situations.)
[3.] Finally, this incident reminds me just how quickly some supposedly narrow restrictions can slip into much broader ones.
When I was involved in a similar controversy a year ago, people told me: Of course this word is mentioned elsewhere in the legal system, for instance when clients or witnesses testify about it or talk about it when being interviewed. But it's different when a professor, who is in a position of power in the classroom, says it. Yet of course once one rejects the use-mention distinction, and treats quoting a slur as forbidden, that applies equally to all speakers. And sure enough, here a student with no classroom power is being hounded as well.
Others told me: Sure, the word is written and can be written, but it shouldn't be said out loud. But of course once one rejects the use-mention distinction, that logic applies to speaking as well as writing. (Surely we'd agree, for instance, that sending someone an e-mail calling them a "kike" or "nigger" or what have you is reprehensible, because writing really isn't that different from speech in this respect.) And indeed, as Randy's and my article chronicles, in just the last year we've seen a flurry of cases where professors were condemned for writing the word.
Others told me: Look, it's just one word that you shouldn't say; you'd be free to quote all other words, but this word is different. But of course that logic can't hold, either; as Randy's and my article chronicles, in just the last year we've seen similar demands to expurgate the word "fag" (which has a starring role in the most important recent Supreme Court case on offensive speech, Snyder v. Phelps (2011); the Westboro Baptist Church there displayed various signs near dead soldiers' funerals, including "God Hates Fags").
Plus, if the theory is that slurs are traumatizing because they bring up mental images of bigoted violence, then surely discussions of actually bigoted violence (slavery, lynching, hate crimes, and the like) could do the same, and face similar calls for expurgation. And, sure enough, since I started to blog about this matter, we've seen exactly such calls; for instance, as we note in our article,
Others have faulted professors who "expose Black students to images and videos of brutalized Black bodies … and explore texts that detail Black suffering" alongside those who "say the n-word without hesitation" (in quoting materials such as "white LGBTQ activist Carl Wittman's 'A Gay Manifesto'"). Likewise, the Oxford University student union adopted a policy called "Protection of Transgender, Non-binary, Disabled, Working-class, and Women* Students from Hatred in University Contexts," demanding the removal of "ableist, misogynistic, classist or transphobic" "hate speech" from any course reading materials.
But that just focuses on slippage that we predicted; there's so much we couldn't even predict, because it would have seemed so far-fetched. How about a dean (who is also the president of the American Association of Law Schools) condemning a professor for being "deeply offensive," "caus[ing] hurt and distress," producing "mental trauma," and "demonstrat[ing] a lack of respect, decency, and civility," because the professor had written "n_____" and "b____" in a fact pattern on a law school exam? As you might gather from knowing my work on this, I'm not expurgating the words here; the exam really did just say "n_____" and "b____," in a problem related to a racial and sexual discrimination lawsuit. So apparently even expurgating doesn't get you off the hook.
Or how about the Great USC Homonym Panic of 2020, where an accomplished business school lecturer was replaced in his course in the middle of the semester because he quoted—in the middle of a lecture on filler words (such as "um" or "er") in a business communication class—the Chinese filler word nei-ge? His sin was that this Chinese word, which he mentioned as an example because he's an expert on U.S.-China business and a fluent Mandarin speaker, sounds like "nigger" in English.
If Randy and I had come up with this as a hypothetical consequence of placing a taboo on certain words, I expect we would have been roundly condemned as creating a ridiculously unrealistic straw-man scenario. And yet there it is. We prefer to "avoid these ends by avoiding these beginnings."
Of course, perhaps Randy and I are mistaken. Perhaps some version of the New Taboo ought indeed be adopted in law school classrooms. Perhaps faculty and students teaching and studying a subject should be forbidden, whether by rule or by social norm, from accurately talking about the source materials (precedents, court records, and the like) of that very subject.
But I'd like those who disagree with us to say a bit more about how the taboo is to remain contained (or even whether they want it to be contained). And I hope that those who are considering whether to accede to the taboo will consider how far it is likely to spread.
UPDATE: I updated the post slightly 25 minutes after putting up, because I got some more information about the matter from the student's lawyer.