A law student at Rutgers did something law students do. The student quoted a passage from a 1993 New Jersey Supreme Court decision, State v. Bridges (1993), that included the N-word. That word, together with some of the other worst epithets, can be found in over 10,000 decisions. It can be found in the New York Times. It can be found pretty much everywhere. But does it need to be said?
Black students at Rutgers Law School are petitioning for a policy against the use of racial slurs after an incident in which a white student quoted a racial slur directly from a 1993 legal opinion during a professor’s virtual office hours, The New York Times reported.
The petition also calls for apologies from the student, who has not been identified, and the professor, Vera Bergelson, who told the Times she did not hear the word spoken and would have corrected the student if she had.
Faculty at Rutgers, a public university in New Jersey, discussed Friday whether to voluntarily bar racial epithets from being spoken in class, even in the context of quoting court decisions.
Co-Dean David Lopez backs a policy prohibiting the use of the epithet because “this language is hateful and can be triggering, even in the context of a case.” Some prawfs object, arguing that it “implicates matters of academic freedom and free speech” when it precludes a prawf or student from quoting a decision.
At Volokh Conspiracy, Eugene tells of his law review article with Harvard’s Randall Kennedy arguing that this violation of free speech, and there’s no question that hateful epithets are protected speech, and any prohibition of the use of the word would devolve into broader and more serious censorship of hate speech.
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 “n*****”* 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.
I don’t doubt Eugene is right about the slippery slope. Randy Kennedy may call it the “Atomic Bomb,” but other identity groups will have their own words they demand be placed on the taboo list, never to be uttered by unauthorized personnel. I appreciate why they have drawn a principled line in the sand, for officially making one word absolutely forbidden and its use subject to punishment, but it opens a door that will almost certainly lead to free speech disaster, as already demonstrated by a series of hits and near-misses, not to mention absurd and irrational extensions.
But we still don’t have to say the word.
Eugene distinguishes its use as an intended epithet as opposed to its quoted mention for accuracy. He further replies to the cry of traumatization by arguing that greater exposure to the word will better prepare students to handle the trauma they are certain to experience when they leave the classroom and enter the well.
Can the word not be inherently offensive enough that it need not be backed up by claims of trauma? We’ve all seen and heard the word, and yet we’re not cowering in a corner weeping uncontrollably. It’s the most offensive word in the language but nobody “gets” PTSD from its utterance. Discussion based on such claims are not only false and childish, but distract from the point: It’s outrageously offensive and need not be uttered.
The pseudonymous Lawprofblawg** at Above the Law takes it a step (or ten) further.
The authors do not balance whatever value they claim is achievable solely through uttering slurs with the costs to the audience and to pedagogy. It’s easy for them to not balance those costs when they assume there are none. I’ll be frank here: The injury discussion reads a lot like “we don’t believe it’s that bad. Suck it up.” As the authors put it, “Some have argued that mentioning an anti-black slur in the classroom improperly ‘places a burden on Black students that other students do not face.’ We are skeptical about the magnitude of the burden; indeed, we doubt that it is materially greater than the normal burdens that students may face in many situations.”
There is an undeniable tension here between what compels a prawf or fellow classmate to utter the word and what students in the classroom take away. It may not be intended to be gratuitous. It may very well be intended as a “noble slur,” used to shock and remind as if Lenny Bruce was still alive today.*** but it’s so deeply offensive, so deeply mired in controversy and outrage, that it will overcome whatever putative pedagogical message was intended.
Volokh and Kennedy raise important points, and the notion of creating official rules, with official punishments, for students and prawfs who use the word crosses a line that should not be crossed if we’re to maintain free speech and academic freedom. Yet, LPB is right as well, that the word is offensive, serves no useful pedagogical purpose and will become the issue regardless of any contention to the contrary.
Perhaps this is the most naive conclusion possible, but we must maintain the right to say the word, and then we should maintain the sound discretion to never do so, even if it’s just to quote it. Just because we can does not mean we should. We shouldn’t. We don’t have to. The most valuable aspect of having a right to free speech is that we also have the right to choose not to speak, not to needlessly offend. I choose to exercise that right not to use the N-word and think it’s the best, and only, way out of this morass.
*Eugene spelled the word out. I substituted asterisks because I choose not to use the word. It is simply my choice, and my choice is not to say or write the word. Nor will I allow anyone to use it in the comments, and any comments using the word will be trashed. You’ve been warned.
**I questioned the use of the ‘nym for this post. I’m of the view that if you’re going to challenge a controversial argument, you should have skin in the game, meaning your name attached to your argument. LPB explained his position, which I accept as genuine even if I disagree.
***Bruce had the better solution, to take the sting out of words, all words, by their promiscuous use so that no use of epithets would have the power to offend (much like the perpetually outraged screaming “racist” or “sexist” on twitter). Alas, that didn’t happen and it’s not going to happen.