The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

Campus Free Speech

More on the New Taboo: Accurately Quoting Source Documents in University Classrooms

Rutgers Law School, the National Coalition on Censorship, and the Washington Post.


For those of our readers who continue to be interested in this matter:

[1.] The Rutgers Law School co-deans have publicly said (in a letter to the editor of the Washington Post, responding to a Post editorial) that they "are not contemplating policies, rules or speech bans" related to quoting slurs from source materials (presumably whether that's done by students or professors):

As a community, we are learning from the incident in which a White first-year student at Rutgers Law School used the n-word while quoting a legal opinion. We recognize the hurt that the involved students experienced following this incident, and we know that none of the parties acted with any ill intent. This situation raised critical issues about law school pedagogy and provided us with a welcome opportunity to talk as a community of faculty, students, staff and administration committed to anti-racism about productive ways to teach about race in our classrooms.

We are not contemplating policies, rules or speech bans. We have made clear to the Rutgers Law community, including our faculty, that we will not be stifling academic freedom, ignoring the First Amendment or banning words, and we are not seeking to alter existing university policies that protect academic freedom and free speech in the classroom.

None of the parties involved has faced discipline from the law school precisely because we embrace the academic freedom that allows faculty to make individual decisions about the use of inflammatory language in their classrooms. Instead, we are discussing how best to create classroom environments in which all our students feel seen, heard, valued and respected. We are confident that our faculty share that common goal as we work together to train the next generation of leaders for our state and our country.

One of the deans had earlier written, "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," but I take it that this public statement makes clear that this will at most be a decanal request (however much persuasive or institutional force it might have) rather than a formal "polic[y], rule[] or speech ban[]."

[2.] The National Coalition Against Censorship (joined by the American Society of Journalists & Authors, The DKT Liberty Project, The Tully Center for Free Speech, and the Woodhull Freedom Foundation) has released a Statement on Academic Freedom at Columbia University with regard to a similar controversy there; here's the opening paragraph:

The National Coalition Against Censorship and the other organizations signed below are deeply concerned about efforts to punish an adjunct professor at Columbia University for recounting for her class a conversation with a member of the Ku Klux Klan that included racist epithets. A complaint has been filed against the professor, Dinah PoKempner, who was general counsel of Human Rights Watch at the time. Human Rights Watch has since terminated PoKempner….

[3.] The Washington Post invited Prof. Randall Kennedy (Harvard Law) and me to write an op-ed on the subject (recall that we cowrote a law review article on the matter, The New Taboo: Quoting Epithets in the Classroom and Beyond)—you can find it here. Because the Post is paywalled, but doesn't seek exclusive rights for op-eds, after they are first published, we enclose it below (recall that the title and subtitle, as usual, are written by the newspaper):

The case for quoting the n-word in university classrooms

If the slur is mentioned in key court decisions, it should not be taboo in law schools.

Should certain people be forbidden to voice (or even write) certain words in university classrooms? Rutgers Law School is in an uproar because a White student asked a question about legal culpability — and quoted a racial slur in the process. In a Zoom meeting with a professor and other students, the student brought up a 1993 New Jersey Supreme Court case about a conflict that ended with murder, in which a defendant (who did not pull the trigger) had shouted, "I'm going back to Trenton to get my niggers." After accounts of the Zoom exchange spread, students demanded that the school ban the mention of slurs even when discussing cases.

That's not the only such case. This spring, students at Columbia University filed a formal complaint against an adjunct professor, the general counsel of Human Rights Watch, after she mentioned the same racial slur several times in a classroom anecdote while recalling a deposition conducted by a lawyer for the Southern Poverty Law Center, who liberally used the word as part of a ploy to get a member of the Ku Klux Klan to open up. (Human Rights Watch subsequently fired her.)

In 2019, the New School investigated a creative writing professor after students complained that she had used the racial slur when discussing the bowdlerized title of the James Baldwin documentary "I Am Not Your Negro." Baldwin himself did not say "Negro"; the professor quoted him accurately. She was cleared of creating a discriminatory classroom environment, but others have not been so lucky: A tenured professor at Central Michigan University was fired for repeating the slur as he read from a court opinion that was all about how First Amendment law treats that epithet.

We believe that the campaign to make certain words taboo — literally unsayable — dangerously encroaches on academic freedom and freedom of expression. It also diminishes the opportunity for students to learn lessons useful to their future professional careers and to their roles as citizens. (That is true both of racial slurs and of other slurs.) Any word emerging in court proceedings should be repeatable in a law school classroom. As for other university departments, any word that appears in a historical document, novel, film or song should be mentionable for the purpose of study.

One of us mainly teaches First Amendment law at a public university, the University of California at Los Angeles. The other mainly teaches race relations law at a private university, Harvard. One of us is White; the other Black. One of us leans conservative-libertarian; the other left-liberal. But we agree on the importance of exploring fully and unflinchingly even disturbing subjects in class. Neither of us "uses" any slurs as insults, the sense in which these words are rightly repudiated. But we do vocalize such terms in reading quotations or posing hypotheticals to reinforce the legal system's norm of accurately quoting source material, and to convey important lessons, including the ways in which epithets have been an integral part of the soundtrack of American prejudice.

Professors we admire have made a different choice, opting to avoid ever articulating the most notorious racial slur. They maintain that mentioning the epithet is so hurtful to some that no pedagogical aim can justify such pain and distraction. We respect their decision, though we disagree with it. We ask that a reciprocal respect be paid to the decisions that we urge.

Slurs are key, complicated, volatile and potentially revealing words in the American lexicon that are often directly pertinent to subjects that professors routinely teach. A class on one of the most infamous murder trials of the late 20th century — the O.J. Simpson case — will be impoverished to the extent that it skirts grappling fully with the epithet that a prosecutor there called the "filthiest, dirtiest, nastiest word in the English language." (It emerged in court that a detective in the investigation had frequently used the epithet.) Likewise for classes on the fighting words doctrine, group defamation, or what is called hate speech, where the word is often the very subject of the case. And the same principle should apply for other slurs. (The Central Michigan University professor who was fired was also condemned by the university for quoting the sign "God Hates Fags," which members of the Westboro Baptist Church have brandished outside military funerals. In an important 2011 case obviously worthy of classroom discussion, the Supreme Court ruled that was constitutionally protected speech.)

We also read these slurs aloud because we believe that commitment to candor and accuracy is an important norm of our legal system. Judges routinely quote epithets, without euphemism or expurgation, in their published opinions. For a recent law journal article on this topic, we found "nigger" quoted in more than 9,500 opinions written since 2000 by jurists as varied as Sandra Day O'Connor, Sonia Sotomayor, Ruth Bader Ginsburg and Clarence Thomas (plus thousands of lower court judges). All of these judges could have expurgated the terms — as some other judges do — but they chose not to, for the sake of reporting the facts as they actually happened. Law students need to be trained to operate in a professional world in which this is a norm.

What about the complaints from those who say that hearing or even reading the most offensive slurs, no matter the context, interferes with their ability to learn? First, feelings of hurt are not unchangeable givens untouched and untouchable by the ways in which institutions respond to them. The more that schools validate the idea that such hurt is justified, the more that emotion will be embraced, and the more there will be calls to broaden and harden linguistic taboos. (There are already signs the prohibition is expanding: At the University of Illinois at Chicago John Marshall Law School this academic year, students called for a professor to be disciplined after he included on a test a question about employment discrimination that featured a redacted version of "n—–," as well as "b—-," noting that the terms represented "profane expressions for African Americans and women." A dean called the language in the question "deeply offensive.") We want to push in another direction, advancing the message that educated people, particularly lawyers, should be able to deal calmly with any word.

The 'cancel culture' debate gets the fight for free speech entirely wrong

Second, complaints of distress cannot suffice to bar teachers from teaching about the facts, whether related to specific words, or to upsetting subjects, such as rape, genocide or slavery. That is especially so when teachers are training students to become professionals who must often deal with awful facets of human nature. Lawyers rendered incapable of concentrating merely by encountering quotes containing slurs are lawyers of diminished value to their clients.

There's a final point. All of the recent controversies over mentions of the most controversial racial slur in classrooms have involved speakers who are White. Those calling for apologies and punishments often expressly demand an asymmetrical rule that Black speakers are given leeway, while non-Black speakers are held to a rigid, strictly enforced injunction. We oppose such discrimination. The one of us who is Black and has had racial slurs hurled at him on numerous occasions rejects the dubious racial privilege that this rule would offer. The other of us who is White rejects the intellectual disablement that this rule would entail.

Prohibiting some teachers, on the basis of racial identity, from saying a word that others are permitted to say violates anti-discrimination laws, and it certainly violates sound academic practice. It is of a piece with other balkanizations of intellectual and artistic life that threaten what should be an open, pluralistic culture that encourages everyone to confront frankly difficult facts.

We are well aware that racism is a powerful force in American life that appears in many guises, some lethal. We believe that opposing racism is imperative, and that vigilance is essential. We also believe, however, that developing a capacity for making important distinctions is a valuable skill and a fundamental goal of education. That is why we insist on recognizing the gulf that separates using slurs as insults from quoting or mentioning them as part of an educational venture.