Free Speech

Rutgers Law Students Calling for a "Policy" on Students and Faculty Quoting Slurs from Court Cases

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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.

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  1. Interesting observations about treatment of a vile racial slur from a ‘free speech champion’ who has repeatedly vanished the term “c_p succ_r” and expressly banned the term “sl_ck-j_wed” from his blog (at least when those terms are used to describe conservatives), although much stronger comments about liberals were provided the matador treatment (waved by).

    1. Imagine that, someone distinguishing standards for tasteful use of language from discussion of other people’s indecency.

      1. This is a blog that permits (even adores) “phoqueue” while banning “c_p s_ccor” and “sl_ck-jaw_d.”

        That conservative sycophants won’t acknowledge viewpoint-driven censorship at a right-wing blog does little to make your stale, declining political views more palatable in the American mainstream.

        It also makes appeasement of those who like to use vile racial slurs a bit easier to align with standard Republican White nationalism.

        1. So you should be able to use derogatory statements referring to particular individuals in a derogatory manner, but college professors should not be able to quote certain words when they were not being used in a derogatory way.

          Well, ain’t you special?

          1. I use one of those terms to refer to a group of people (those who provide slobbering, unwarranted succor to police officers, mostly conservatives) and the other term to describe a group of people (gullible, downscale conservatives). But no longer at the Volokh Conspiracy, of course.

            I am not so special. Just another member of the liberal-libertarian mainstream. It is this blog treatment of me — censorship, banning — that is somewhat unusual.

        2. It’s because they recognize that you’re the real bigot here Kirkland.

          1. Being called a bigot by Republican racists, conservative misogynists, right-wing gay-bashers, “often libertarian” xenophobes, “libertarianish” Muslim-haters, and any other members of this blog’s carefully cultivated class of commenters doesn’t bother me.

            Carry on, clingers. But only so far as your betters permit.

            1. Is it Artie? Or is it an NPC? Perhaps we’ll never know for sure. I’d bet with the NPC, though.

              1. Artie was banned by the Volokh Conspiracy for the crime of poking fun at right-wingery.

                I am Arthur.

    2. I was wrong. PC is not case. PC is 10000 cases.

    3. Has Prof. Volokh in fact deleted a comment mentioning “cop succor” or “slack-jawed” as opposed to one using them?

      1. Why would you use terms whose use Prof. Volokh has expressly forbidden at this blog?

        Unless you suspect pretext . . .

      2. Honestly, at this point, I’m pretty sure revs either just out and out lying or leaving out a lot of details on what got a post banned on another website several years ago. The all lawyers must die guy is still here and posting targeted attacks at the professor, which makes the whole repeated accusation from the rev smell like bullshit.

        1. I will let others post their positions on this point — whether I am lying — before providing information from the relevant emails.

          (Until then — what was your position on Obama’s birth certificate, the ‘stolen election,’ ‘lock her up,’ the ‘Russia hoax,’ the ‘biggest inauguration crowd ever,’ the ‘coronavirus is under control (in February 2020),’ the Alabama hurricane path, ‘Democrats are the real racists,’ windmill noise cancer, whether Trump directed the Stormy Daniels payment, original credit for Veterans Choice, and similar issues? I might prefer that some people do not consider me a credible source.)

          With respect to your point concerning the continued, frequent presence of vile racial slurs, threats of violence, vulgarity, and the like in comments that are welcome at the Volokh Conspiracy: Can you think of anything that might — particularly in the eyes of a committed movement conservative — distinguish my comments from those of persons who have been permitted to remain after calling for liberals to be gassed, shot in the face as they answered doorbells, placed face-down in landfills, used to produce dog food, sent to Zyklon showers, etc. ?

          Can you think of anything that distinguishes “phoqueue” from “c_p succ_r” other than the politics of the speaker?

          Thank you.

          1. “…before providing information from the relevant emails…”

            Wow. Running this blog really is a thankless job, isn’t it?

            1. I am confident the masters of the Federalist-Heritage-Olin-Bradley-Scaife-Council for National Policy-Family Association-Family Research-Chamber of Commerce-Republican universe ensure it is far from thankless.

  2. Here’s a policy from Australia that seems to work well;

    https://www.youtube.com/watch?v=1EY7lYRneHc

  3. As long as no very specific policy is formulated by proponents of the taboo, you can assume that the taboo is kept vague and expansive to allow for power to be wielded at the pleasure of the wielder.

    You can further assume that that’s actually the goal: to create a powerful class and a victim class and to perpetuate that dynamic so the victim class must always fear the powerful class and must always try to generally appease the powerful class. There’s no other way for the victim class to safely avoid violating the taboos or to escape punishment.

    That goal is achieved.

    But only because many, many people who should know better (people who actually do know better) are going along with it.

  4. I find all the hand-wringing over choice of language amusing and lamentable. It brings to mind the old children’s rhyme “sticks and stones can break my bones, but words do nothing to me”.

    Maybe some of the adult children need to internalize this rhyme.

  5. Since I avoid unnecessary arguments, I will avoid saying any of these vile slurs or making any compromised gestures…with one possible exception. I refuse give up using the Vulcan salute. But then, I am a Kohen and that symbol is on many of my ancestors’ graves.

  6. Dear Eugene:

    Thank you for this excellent essay.

    There is another aspect of this situation that was not discussed by the NYT that should be raised. When this event happened–in October 2020–the students who were upset by the quotation of the case went to a Black faculty member who agreed with the outrage of the students and who then wrote to other minority faculty members about the incident. She also contacted Co-Dean David Lopez about the incident. The students also complained to the then-director of the Minority Student Program. This all happened last fall. None of these people informed Professor Bergelson or took any action to address the student complaints. And then, when the petition was released–on April 2–the students stated stated that they were making their public accusations and demands because their complaints from the fall had “gone unresolved.”

    This is all very odd. Lopez claims that quoting an epithet in a case is “hurtful” and “triggering.” The faculty member involved claims that what happened constituted “intellectual violence.” But despite their regarding this as a very serious matter, no one thought it serious enough to discuss the matter with Professor Bergelson or do anything to address the student complaints. We were all surprised on April 2 when this matter came to light. Lopez claimed that he “dropped the ball.” That’s hyperbolic understatement. The faculty member involved, and the then-director of the Minority Student Program, have both gone silent about why they did nothing productive to address the matter or talk with Bergelson about the brewing storm. This is all very troubling and raises the question whether the crisis was deliberately planned.

    And the fault does not lie just with the Newark location. The Camden Co-Dean, Kim Mutcherson, put out a statement on April 9 that read, in part: “I’m grateful for you – our students – for holding us accountable and calling out our failures when you see them. I very recently became aware, as some of you may be, of one instance related to a student’s use of a hateful word during office hours for a class in Newark this fall. Though students expressed concerns to a faculty member about this incident, their complaint was not acted on in an expeditious manner.”

    I pointed out to her immediately on April 9 that the student did not “use” the epithet; she quoted it. I asked for a clarification to the Camden community to which she had sent her statement so that everyone understood what the student had, in fact, done. None was forthcoming. With respect to her claim that students had expressed their concerns to a faculty member, I–and a number of colleagues, including Professor Bergelson–thought that she was stating that the students had expressed their concerns to Professor Bergelson, which was not the case. I asked her to correct her statement. She did not. I was later told that Mutcherson was referring to the other faculty member to whom the students brought their concerns and who, for whatever reason, declined to talk with Bergelson or otherwise take steps to help to resolve the matter. But at the time Mutcherson wrote this statement, Lopez had not yet disclosed that there was another faculty member involved to whom the students had complained last fall. His disclosure happened on April 14. Mutcherson’s statement was blatantly unfair to both Professor Bergelson and the student.

    In response to my requests that she correct or clarify her statement, which had upset both Bergelson and the student, Mutcherson accused me in front of third parties of “continually adding fuel to the fire.” I demanded in writing on two occasions to know what she meant and in what ways I was doing that. She did not respond. The only answer she could give is that she was unhappy that I was frustrating efforts to throw Bergelson and the student under the bus.

    At a faculty meeting last week, Mutcherson said, remarkably, that the student petition did not accuse anyone of racism. After I picked myself off the floor in astonishment, I read out loud two paragraphs from the petition that accused the student of making an “intellectually violent and dehumanizing racial slur” and Bergelson of “complacency and complicity” in this act. Mutcherson’s response–in front of the entire faculty–was: “Thanks, Gary, for educating me about racism.” I pointed out that I was not trying to educate her about racism but was trying to educate her about the meaning of words and that it was absurd to say that the petition did not accuse anyone of racism. It is appalling that anyone who disagrees with the Co-Deans or with the faculty–not insignificant in number–who support the view that we should not even allow the quotation of epithets is treated with contempt and disrespect.

    Tracey Tully reports: “Professor Lopez and his co-dean, Kimberly Mutcherson, said in a statement that the discussion underway had nothing to do with ‘stifling academic freedom, ignoring the First Amendment, or banning words.’” That is wrong. This debate has everything to do with stifling speech and academic freedom. Lopez and Mutcherson have both stated their opposition to even quoting epithets, and have refused to state that the professor and student involved did nothing wrong, or defend them from the student accusations of racism that have been made widely and and shared around the country. That is tantamount to having a de facto policy that stifles speech and academic freedom.

    I have been at Rutgers for 32 years. I left a tenured position at another law school with a much higher rank even back then to come to Rutgers because I embraced its commitment to social justice reform and diversity. And it was an exciting place in the days of Arthur Kinoy, Frank Askin, Nadine Taub, Al Slocum, and others. But now, we have lost sight of the big picture in favor of the most insidious sort of identity politics that seeks to divide us rather than uniting us in seeking a broader understanding of justice for all. Rather than, as Kinoy used to say, “putting heads together” about how to address the violence of racism, we tear apart our institution–and impose a great deal of suffering and distress on Professor Bergelson and the student–over the matter of quoting a New Jersey Supreme Court case where Justice Alan Handler, now retired but one of the most liberal members of the Court, quoted the record of a case where a defendant–a Black man–uses a word in a non-slur way. It is both tragic and unbelievable. It is odd to be on the left throughout one’s career only to find that failure to embrace identity politics is sufficient to take away your membership card

    And it’s not just the quotation of epithets and its not just Rutgers. It’s discussion about anything that can be fodder for identity politics. Two years ago, I was giving a lecture at another school in which I was pointing out the legal and economic similarities between the regulation of animal use and the regulation of slavery. Two Black students interrupted and objected to my lecture because I was, according to them, “appropriating slavery.” I pointed out that slavery existed in non-race-based forms and that my observations applied to those contexts as well (as I have pointed out in my work). But I asked them whether, even if we focused on race-based slavery, they thought that my observations about similarities were invalid. They said that they did not; the problem was that even if what I was saying was valid, I should not say it because I am white. The academy is in very big trouble.

    Again, thank you for your essay.

    Gary

    Gary L. Francione
    Board of Governors Professor of Law
    Rutgers Law School

    1. Time for the morally bankrupt institutions to finally go financially bankrupt. I don’t see why we continue to subsidize these ideological gulags with taxpayer hard earned dollars. If someone wants to pay 50K+ a year for this kind of garbage, who am I to tell them how to spend their money. But, they shouldn’t expect any of my tax dollars to go to their “choice.”

      1. The NRA is a different discussion, even among gun nuts.

        1. Kirkland, the NRA isn’t being subsidized by taxpayers…

          1. The NRA pays its taxes?

            1. Depending on what acronym you’re using. Any evidence that the National Rifle Association hasn’t paid taxes it owes?

              1. Any evidence the NRA pays taxes? Or is it a taxpayer-subsidized freeloader and bunch of parasitic leeches?

                1. So it pays all the taxes it owes! Awesome! It’s an organization. Its members pay taxes.

                  1. So do churches. And symphonies. And ballet companies. Does that mean churches, symphonies, and ballet companies are not freeloaders?

                    The NRA is subsidized by better Americans, who carry their weight in society by paying taxes.

                    The NRA is not alone — far from it — in that parasitic territory. Its attempted abuse of bankruptcy laws and flouting of nonprofit laws, however, seem extraordinary. Let’s hope the culprits are fined and imprisoned.

                    1. “So do churches. And symphonies. And ballet companies. Does that mean churches, symphonies, and ballet companies are not freeloaders?

                      That’s what it means, Arthur.

    2. “The academy is in very big trouble. “

      I fear that the academy is mortally wounded…

    3. Good inside information from Prof. Francione. Tough to be a Dean. Tough to be a prof. Much pointless stress at reduced pay.

      As a New Jersey taxpayer, the purpose of Rutgers is to educate future lawyers, to get licensed, and to practice law. Other purposes such as the thought police, enforcing policies of the Democrat Party, righting social wrongs are a form of fraudulent misuse of my money. My money includes all federal exemptions, subsidies and grants.

      Students and faculty are free to advocate off campus. On campus, the purpose is education to pass a licensing test. Any other activity should not be tolerated, and is a misuse of my money. If people stole from a law school checking account what would officials do? They would call the cops and have them arrested. That is a hint about the remedy to all the stress you described and are undergoing. Pull the taxpayer money, subsidies, and grants of these Democrats, tearing down our country and promoting the interests of the tech billionaires and of the Chinese Commie Party. Then expel them all, to the curbs of the streets of Camden, late at night.

      If you fail to carry out the fiduciary responsibility to the taxpayer clearly written out each year in your IRS Form 990, then return all the tax money.

    4. Professor Francione….Welcome to the People’s Republic of NJ.

      This ‘Alice in Wonderland’ system at the People’s Indoctrination Teaching Academy (aka: PITA for short, or Rutgers) of addressing grievance will claim many more victims. It is a logical extension of progressive ideology.

    5. War is peace. Freedom is slavery. We’re not accusing anyone of being racists, but they were being racist.

  7. So is the question whether there should be a policy at all, or what the policy should be?

  8. In my adult life; I’ve never used “nigger” outside of quoting court cases or quoting witnesses while in court. I, of course, get how hurtful and impactful the term can be. Especially when directed at a particular person, or group. Of course.

    But I really struggle to find a non-bad-faith explanation for some of the alternatives that have been offered by the “Never. Under no circumstances. Never ever.” side.

    I can accept that people can and will be truly offended by seeing “nigger” in written materials. But for those people, I absolutely cannot believe that they would not be similarly offended by seeing “n*gger” written. Or, “ni**er.” Or, with enough context, even “n_____.” I mean, one looks at the actual word, or the modified word, in context, and understands what the word is, right? (Or, there’d be no point in removing a few of the letters.)

    Is there really someone claiming, “Well, I’m offended by the full word. But if you remove that “i,” then the offense goes away? I don’t believe that. I cannot believe that. But if I am correct, then what is the justification for modifying the written word? I tried looking for research that would show that people are actually less offended by seeing expurgated terms. If that research is out there, then I hope someone here can provide a link.

    I’m much opposed to infantalizing women (or blacks, or Jews, or gays, etc etc etc etc etc) by assuming that we/they/you are so delicate and fragile that these people need to be protected from seeing hurtful words BEING ACCURATELY QUOTED. I don’t see how that is not more harmful in the long term.

    (And don’t get me started about the irony of this censorship happening in *law school* . . . the last place on earth where one would expect students to need psychological or emotional protection from non-specific hurtful and/or unpleasant words.)

    1. santamonica811: This reminds me of this expurgation fail, from Muhammad v. Caterpillar, Inc.:

      Plaintiff reported that Boem called him a “black fag—t a—” because Boem believed Plaintiff had got Dole in trouble.

    2. “Never. Under no circumstances. Never ever.” That rule applies to white people, not to others. It thus has a disparate impact based on race and violates the Civil Rights Act according to the Supreme Court (https://en.wikipedia.org/wiki/Texas_Department_of_Housing_and_Community_Affairs_v._Inclusive_Communities_Project,_Inc.)

    3. “In my adult life; I’ve never used ‘nigger’ outside of quoting court cases or quoting witnesses while in court….

      “I can accept that people can and will be truly offended by seeing “nigger” in written materials.”

      You just now used the word outside of quoting court cases or witnesses.

      1. Yes, but you’re not an idiot. You get the context and that I’m quoting the word for a specific ‘educational’ use, and not using an offensive term in casual conversation, at the workplace to harass someone, etc..

        I’ve been reading the VC since just about Day One. So, I still think of it as aimed at lawyers, law students, legal scholars, and so on. I think (rightly or wrongly) as all the OPs and the subsequent threads as education in some real sense.

        I trust that you genuinely can see the difference between saying/writing something here and saying something out in the real world, yes?

        [Note: I have also taught law classes, although only to high school students and future paralegals. I have used awful words there as well, always in the specific context of fighting words, censorship discussions, etc.. You are free to see this as another example of my casual and incorrect use of “always.”]

        1. Just b___ing your b___s. Sorry to offend.

  9. Pretty funny. Connecticut State Supreme court used the word NIGGER, 36 times in the opinion that it was not protected speech, but a fighting word.

    https://thefamilycourtcircus.com/2020/08/27/connecticut-speech-police/

  10. The ultimate irony here is that it wasn’t initially used as a slur — he was threatening to bring back his buddies. His friends. Or whatever adjective that is less offensive than the one we used last week.

    HE SAID IT….

  11. Man, Volokh has a burning obsession to keep this word around. I can’t think of anything he writes more about here lately.

    1. Queen Amalthea: Randy and I just published an article on this. That article is probably the leading scholarly work on the subject, at least when it comes to mentioning epithets in law schools. I say this descriptively; maybe the article is flat wrong, but it really is the primary academic treatment of the topic.

      And now this very topic is in the news — indeed, in what remains likely the most prominent newspaper in the country. Never mind the subject; say this was the leading article on the right of publicity. Wouldn’t you expect an academic blogger who has just written an article on the right of publicity to write about high-profile controversies on the right of publicity? Wouldn’t you expect that, if someone’s career is being potentially threatened because of what the author thinks is a misunderstanding of the right of publicity, the author might feel obligated to come to that someone’s defense? Indeed, what’s the point of academics blogging if they don’t blog about subjects on which they are especially knowledgeable?

      So this volume of blogging on the subject (which is actually a small minority of all my posts in recent weeks, see here) is pretty normal for the typical topic on which an academic blogger is expert. But it sounds to me like you think for some reason that I should write less about this topic than an academic author would normally write on a topic on which he’s an expert.

      I can see why, if you don’t like my thesis, you wouldn’t want me to write about my thesis. But why should I go along with your preferences on this?

      1. This blog regularly permits that word in comments, some of which are quite far afield from the usage formally discussed in that article, while vanishing or banning less objectionable terms, at a forum that caters to the side of the aisle featuring White nationalists and race-targeting vote suppressors . . . and expects that circumstance to avoid notice, comment, or objection?

        Even a solid, rather than scant, academic veneer could not mask that stain.

    2. And why do you think that he has that “burning obsession,” “Queen Amalthea?” The implication that is hardly under the surface of your remark is that Professor Volokh is a closet bigot. Is that what you think?

      1. Maybe it’s just appeasement of bigoted fans or ideological allies?

        1. I apologize for the waste of a “maybe.”

    3. Sorry, but the days of saying only some can use this word are over.

      You can say nobody can use it or that anyone can use it. I dont care which option you choose, but a choice does need to be made.

  12. I think the person who was convicted of conspiracy could have conveyed the same concept by saying “I am going to Trenton to get some associates of mine who happen to be black.”

    These criminals should be careful with their language, and keep in mind that people will be studying their language later and possibly getting triggered by it.

    1. OK, I am going to ask this: why was a 16-year-old’s birthday party still going strong at midnight?

  13. To be blunt, the students need to grow up, act like adults, and demonstrate some semblance of perspective and context in an educational environment. It is beyond pathetic for institutions of higher learning who are supposed to be opening the minds, thoughts and experiences of students that the law school would coddle the students. The ” inmates are running the asylum “. Not everyone will agree with you and what you may believe. All blacks don’t think alike. All whites don’t think alike. I long for the time when liberalism meant actually discussing and arguing with people with other ideas. Have these law students been exposed to the SCOTUS opinion in Skokie? The Nazi Party marching in parade through the streets of Skokie, IL which had a very high percentage of population who were Jewish. In comparison to those facts, the students seem ridiculous in their reactions. The cancel culture is a hecklers veto that has allowed the academic world to turn students into intellectual mush, who flee to pillow and puppy filled safe rooms to protect their ears and hypersensitive feelings. Grow up!!!

    1. To be blunt, the students need to grow up, act like adults, and demonstrate some semblance of perspective and context in an educational environment.

      This. One of the reasons we are at this point is because schools are so afraid of their customers. The line should have drawn long ago that this stuff is protected by academic freedom and that student petitions advocating any sort of administration response will be ignored. When students started getting scalps, they got bolder.

      1. Should we prefer the academic freedom and courage exhibited on conservative-controlled campuses?

        1. Why would you want to reduce academic freedom to the dismal level of Oral Roberts or something?

          You think this is some brilliant riposte, but it’s just advocating a race to the bottom.

          1. “Why would you want to reduce academic freedom to the dismal level of Oral Roberts or something?”

            I do not.

            Conservatives do.

            1. So what? I don’t care what conservatives want.

              Hypocrisy arguments are boring and dumb. You only make yourself look boring and dumb by constantly making them.

        2. If you as a progressive democrat party hack in Philadelphia are capable, put into practice context and perspective. “Conservative-controlled campuses” are at best an endangered species if not a unicorn! However, in response to your question, yes. If you can find these Conservative-controlled universities and they should apply the same standards. Classical liberal arts colleges were based upon the freedom of ideas and agreeing to disagree. I would make a distinction between speech/thought and conduct. Everyone is free to speak and think what they want. I do believe that there is conduct that can be regulated. If a university gives notice of the regulation, they can and should be allowed to regulate alcohol, tobacco, sleeping arrangements, chapel attendance, etc. Students can think and speak as they want and can respectfully express in all discussions and classes their opinion.

          1. Yo…you need to stop making sense, floridalegal. 🙂

          2. ” “Conservative-controlled campuses” are at best an endangered species if not a unicorn! ”

            That is a profoundly dumb statement.

            There are many dozens, likely hundreds, of conservative-controlled campuses. They are mostly nondescript fourth-tier or unranked schools — with mediocre students, unaccomplished faculties, undistinguished alumni, censorship- and superstition-shackled campuses, scant research achievements — so they don’t get much notice (especially favorable notice) but they exist.

            Do you wish to take another crack at it?

        3. A bit of free education for you. I know of several religious oriented/ principles accredited liberal arts colleges and universities that freely admit and allow atheist, agnostics, and those of different religious beliefs. They do have rules for conduct but, all students are free to believe, think and have their own opinions. There are standards of civil discussions. Exhibit a level of courtesy and civility. If you want to argue and debate the scientific evidence/process/reason/probabilities between big bang macro evolution and intelligent design theories, there are PHD’S/ scientists who will debate and disagree with you. If you are an atheist, there are people who will present their thoughts and basis for their beliefs in God and the Bible and you are free to disagree and make up your own mind. If people of different religious or theology want to argue, disagree and debate, that’s fine. Do you believe that religious missionaries who travel around the world or express their opinions are doing this with the intent to hurt, disadvantage, and belittle those who don’t share their beliefs? They believe that they are informing others to provide something better. You are free to wallow in your antipathy, hate, mockery,
          and intolerance to others who have chosen to think and believe something different from you. It would be my hope that you will eventually see your hypocrisy and demonstrate a degree of the tolerance that you profess. Some self determined or cultural determined ” identity ” has nothing to do with how or what an individual may think or the opinion they may have on a particular subject.

  14. So I will say that I agree that the push to expurgate slurs and other no-no words (or ideas) from the mouths of law students and academics is anti-intellectual, underinformed, and destructive of discourse.

    But I also have to note that a better strategy for resisting this push needs to be found. Stating simply that the existing standards of academic discourse can adequately address objectors’ concerns while permitting parties to discuss issues civilly – and thereby rejecting the primary objections – only feeds into the very power dynamic that motivates these people. In other words, being the haughty professor talking down his nose to these people, comparing what they’re doing to the worst abuses of soviet regimes, etc. – this only emboldens them, convinces them that they are right, gives them more power.

    We need a better strategy for engaging them. The strategy that I’d suggest is to co-opt the movement. The basic structural problem here being that BIPOC voices and perspectives are underrepresented in forming these policies; the anti-racist solution, then, according to their own ideology, is to bring those voices and perspectives in. Task them with grappling with these actual issues, instead of issuing petty diktats from the sidelines. Ask them to justify, in coherent, academic terms, whatever policies they might call for. What is the harm? What is the solution? Make them answer these questions, like they’re the informed adults they purport to be. When they struggle and fail, perhaps you’ll have changed some minds.

    1. ” BIPOC voices and perspectives are underrepresented in forming these policies”

      Oh, really?!?

      If anything, BIPOC voices are *overrepresented* in forming these policies. When was the last time a BIPOC got into trouble for calling someone “racist” — which, IMHO, is every bit as much of an offensive slur.

  15. I’ve seen this in other programs that prepare people fo work in fields where it’s similarly damaging, so I don’t think this is exclusively a law school issue, but I think schools need to consider how far they can go in protecting students from being “triggered” before they cross a line of leaving them unprepared for their field.

    Law requires dealing with facts as they are, and the law intervenes specifically when the details are unpleasant. If reading the facts of a case is too triggering for you, you might not be suited to be a lawyer.

    If the students complaining in this case aren’t just posturing and actually couldn’t take the incident in question in stride, they probably shouldn’t handle any case at trial, because they can’t be trusted to handle the rough and tumble of a court room. They’d clearly have a hard time working in criminal law. They’d have a hard time in civil rights law. I’m not sure they could handle the details of employment cases. They seem unlikely to be able to full grapple with the cases in Constitutional law. There could be triggering backstories in family law cases, or even, less frequently in say, medical malpractice cases.

    Obviously there are plenty of other roles for lawyers. These issues aren’t likely to come up when handling pensions, or mergers, or drawing up wills (though some elderly clients might prove quite triggering there). But, if there’s so much in law that a person can’t be trusted to handle professionally, it seems irresponsible to give that person a law degree without at least including some sort of asterisk.

    1. More to the point: If someone is “triggered” that badly by hearing the N-word in a quotation, what do they have to do to avoid ever hearing rap music? They must be barely capable of getting from home to their therapist, and way too incapable of handling life to be taking college courses.

      Or else they are lying in order to gain power over others. I don’t think there’s a therapy for that kind of sickness…

  16. Only a cultist would think a word has some sort of quasi-mystical properties such that it is only okay for certain groups to use the word.

    Wokeness is a vile blight on the earth

    1. They don’t think that. They pretend it. It gives them cover to wield power.

  17. I like how all the learned and experienced folks here at VC (including the university professors), demand that young students, some perhaps from less-than-favorable backgrounds (or even those from favorable backgrounds but who are simply inexperienced), think and act like adults who have the education, experience, and expertise to make calls about where and when to use certain words (like nigger).

    I always thought universities were actually places to learn, face new ideas, grow.

    But no, we’re demanding young people act like fully tenured law school professors.

    1. Law students, at a minimum have a college/ 4 year degree. It would be rare to find a student under the age of 21. Anyone, of any background, who has reached the age of 21 should and could be considered and treated as an adult. I personally believe people are capable of hearing differing opinions and thoughts at younger ages. I see no justification for protecting the ears of anyone over 21.

    2. “think and act like adults”

      Like the average clinger who comments at right-wing blogs, attends Trump rallies, joins a militia, or registers as a Republican?

      1. Compared to you, Johnny One Note sounds like Al Hirt.

        You’re beyond boring. Try to mix it up a little.

        1. If responding to the God-gays-guns White nationalist drumbeat of a right-wing blog precipitates a one-note performance, who is to blame?

          Carry on, clingers. Be thankful your betters are gracious.

          1. Continue to wallow in your hate, antipathy, and intolerance to those who have exercised their fundamental rights to agree or disagree with you ????

  18. The N word will never go away until people of color stop using it themselves in casual conversation and it is outside of professional meetings. Even the short hand version gets way to much use.

    Just peruse youtube for some popular poc video creators and the word is common.

    the idea of a free pass because you belong to the group it is associated with really needs to come to an end.

    1. Look what you n****s made me do!

  19. “If liberty means anything at all, it means the right to tell people what they do not want to hear.”

    And if a public university can ban one word, it can ban others — e.g. “Russia Collusion.”

  20. Sure. Have a policy that it’s always quoted accurately, never euphemized, and if a student can’t handle it, they aren’t cut out to be a lawyer, because they will likely have to deal with far worse.

  21. I understand the wish that people not “say the n-word _without hesitation_”. If in Russia in a literature class people were reading Gogol’s works where he freely uses the word “zhidy” (derogatory for Jews), I’d want some sign that others find that as troubling as I do. But here, the law student clearly did give that sign. Maybe that’s the right balance: a norm not of censoring, but of giving some sign of shared discomfort.

    1. The “right balance” cannot include pressure to forbid the referencing of a slur if the reference has a legitimate purpose, is not unnecessary and gratuitous, and is not a veiled attempt to actually use the slur.

  22. Read Professor Volokh’s law review article. I found it fascinating. It’s well worth a read.

    One of the things the article discusses is that certain gay activists want to turn the word “fag” into an unspeakable pejorative — which immediately reminded me of the film “An Officer and a Gentleman.” In the theater release, the drill sergeant, played by Lou Gossett, Jr., belittles a recruit by saying that only “steers and queers” come from Texas. For television, the line was edited to “fags and stags,” which made less sense.

  23. I can’t help but wonder what legal jobs will be open to these black snowflakes if the hiring parties get wind of their behavior while at Rutgers.

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