A Data Point on the Use/Mention Dichotomy and Slurs

Just one illustration among many.

An AP story filed yesterday reports on a pending petition for Supreme Court review: In Collier v. Dallas County Hospital District, petitioner is trying to get the Court to consider whether a single use of the epithet "nigger" (there, in graffiti on an elevator wall) can be sufficient to create a "hostile work environment" and thus constitute racial harassment. (Mentions of the word in discussing the facts of a case aren't actionable harassment, see Savage v. Maryland (4th Cir. 2018), but this case involved use of the epithet as a pejorative, not a mention of it as a fact.)

How did the briefs deal with the word? The petition (though not the reply brief), filed by a prominent law school appellate clinic, mentioned the fully spelled out version more than 15 times, though it noted that "this petition generally uses the term 'N-word' and spells it out only when it appears that way in the record or in cited authorities." The amicus brief from a Howard University law school clinic mentioned it almost as many times, though it often also wrote it "n*gger."

The amicus brief from the NAACP mentioned it even more times, though it also often wrote it "n-word." The amicus brief from various academics mentioned it over 30 times, though it also often wrote "n-word," and added the note, "It is with the knowledge of the trauma inflicted by this particular word that the undersigned, on behalf of amici, most reluctantly quote the full word herein and only for the purpose of exposing the sheer violence of the language laid bare. The word has been capitalized every time it is used in this brief, even if it was not capitalized in the source material."

Which party systematically replaced it with "n-word"? Why, the employer-respondent, which defeated plaintiff's racial harassment case below, and doesn't want to see it revived.

And this fits well with the pattern that Prof. Randall Kennedy and I identified in our The New Taboo: Quoting Epithets in the Classroom and Beyond:

[1.] Even lawyers and judges who care deeply about racial equality recognize the value of accurate quotation. Of course, they could have expurgated the word entirely, and would still have been understood. Indeed, that's what the employer's lawyer did. But they didn't take that approach, because they appreciated that accurate quotation can be valuable for lawyers (and for others).

[2.] Likewise, though I expect that most such lawyers and judges would never use the term (or likely most other slurs) as an insult—whether orally or (as in the facts of this very case) in writing—they recognize that it's permissible, and sometimes advisable, to mention it, indeed to mention it many times. Indeed, when one wants to highlight the outrageousness of the use of word (such as by the anonymous graffiti-writer in this case, or by Mark Fuhrman in the O.J. trial), it is often important to expressly mention the word. Conversely, talking around the word is often a good tool for downplaying the word's significance in a case.

To be sure, different people take different views on the subject. Some, as here, mix the full version with the expurgated version. Others only mention the full version. Others (though, based on our research, fewer, at least in court opinions) only mention the expurgated version.

Some add a disclaimer of some sort; others don't. Some seek to send a signal by capitalizing the slur; others don't. Some view "n*gger" (or "fag–t") as an adequate expurgation, while others prefer something that fuzzes out more of the letters. There are different acceptable approaches to this question, as to so many other questions, whether or not they are approaches that I would use myself (or ones that the lawyers on the petitioner's side in this case would use). But this case helps show how many lawyers do reasonably choose to quote the full word at least some of the time.

And, based on that, Randy's and my point is simple:

[3.] What judges, lawyers, and witnesses mention in court cases (whether in hearings or in filings), law professors and law students should be free to mention in discussion of those court cases. That's true in clinical classes; recall that two of the briefs in this case case from law school clinics. But it's also true for seminars and for doctrinal classes.

This is so for the sake of accuracy, itself an important value in the academy, as well as for judges and lawyers. But it also helps acculturate students to the norms of the legal profession, in which they may expect to see such words mentioned often, and indeed may sometimes need to mention such words themselves. And that's especially to the extent that students come to law school acculturated to the contrary norm, under which mere mention of such words is seen as outrageous and deserving of excoriation—a norm that, if not checked, may serve them and their clients poorly.

UPDATE: A Twitter commenter, @JoshABlock, responds, "This *undermines* Volokh's arg that saying the n word in class acculturates students to norms of legal profession. Briefs from the Black plaintiff, Howard U, and NAACP spell out word. Brief from the employer doesn't. Norm is that identity of speaker matters."

I've heard the claim that black people can mention the word, but others can't; Randy and I criticize that at pp. 45-49 of our article. But I've never before heard the claim that lawyers of whatever race who are representing a black litigant are entitled to mention it, but lawyers on the other side aren't. That would be a truly outrageous norm for the legal system to adopt: That litigants from some groups are handicapped in their representation by having to expurgate words, while lawyers for litigants for other groups are free to quote them accurately.

Nor is this indeed the norm, as a recent brief filed by the Tweeter's own organization (the ACLU), and indeed signed by him, illustrates; the brief was in a case that didn't involve race discrimination against blacks, was filed on behalf of the ACLU, Americans United for Separation of Church and State, and the Anti-Defamation League in support of neither party, and yet included this passage:

Even the most invidious discrimination is tolerated against ministerial employees. For example, a religious employer may fire ministerial employees because they are Black, even though such conduct is not related in any way to the employer's religious mission or beliefs. See e.g., Gomez v. Evangelical Lutheran Church in Am., No. 1:07CV786, 2008 WL 3202925, at *5 (M.D.N.C. Aug. 7, 2008) (barring Title VII claims by minister who was called "Nigger" and told that he "would not be able to work with white pastors")…. [T]here is good reason for this blanket immunity; it advances fundamental religious-freedom principles. Yet, it also inflicts substantial costs by denying to ministerial employees the same legal protections that all other people enjoy. Accordingly, the Court should be careful to ensure that the exception is closely tied to its justification and does not extend beyond those who are, in fact, ministers.

And that's just one of many examples of how all sorts of people and organizations routinely accurately quote slurs in their briefs.

What's going on here, it seems to me, is something much more basic: The lawyers on the side of the petitioner are quoting the word because they think that including the full word helps them rhetorically, by highlighting the outrageousness of the insult that petitioner had to see. That will often happen when one is representing a black litigant, but also when one is representing a non-black litigant, e.g., when the lawyer for an employer is explaining that the plaintiff was rightly fired for racially abusing his coworkers, or a prosecutor is explaining what was said by a defendant accused by a hate crime. (See many of the examples given at pp. 36-42 of our article.) And as with the ACLU brief I linked to above, it can happen when one is representing a non-black litigant but citing a case involving slurs addressed to someone who is black, and wanting to stress that a certain legal rule protects even highly offensive behavior. On the other hand, the lawyers on the side of the employer are using expurgation to try to fuzz over the offensiveness.