Dread Scott

In 2014, Harvard prawf Jeannie Suk Gerson raised a problem in the New Yorker, that crim law profs were concerned about triggering their students by teaching rape law.

But my experience at Harvard over the past couple of years tells me that the environment for teaching rape law and other subjects involving gender and violence is changing. Students seem more anxious about classroom discussion, and about approaching the law of sexual violence in particular, than they have ever been in my eight years as a law professor.

Student organizations representing women’s interests now routinely advise students that they should not feel pressured to attend or participate in class sessions that focus on the law of sexual violence, and which might therefore be traumatic. These organizations also ask criminal-law teachers to warn their classes that the rape-law unit might “trigger” traumatic memories. Individual students often ask teachers not to include the law of rape on exams for fear that the material would cause them to perform less well.

One teacher I know was recently asked by a student not to use the word “violate” in class—as in “Does this conduct violate the law?”—because the word was triggering. Some students have even suggested that rape law should not be taught because of its potential to cause distress.

How does one test the merits of a student’s claim of being “triggered”? Prawfs can test for an understanding of law, but there is nothing to do about a student’s claim that she was traumatized. Back then, this was largely laughed at as fringe lunacy. Obviously, students needed to learn about rape law if they were going to practice criminal defense, and there is no cooler job for new lawyers these days than public defender, the purist of the warriors.

But at least when it came to rape, one could understand that someone who was raped could be triggered. Rape, as meaningfully understood, is traumatic. That doesn’t mean it shouldn’t be taught or learned, but that it was within the realm of possibility that it could prove very hard for some students.

In 2021, Jeannie pulls back the curtain again, this time on Dred Scott.

A decade later, during the nationwide grappling with racial injustice that followed the murder of George Floyd, I saw a striking Twitter discussion among professors of constitutional law, a course that I also teach. They were debating whether much of the Supreme Court case of Dred Scott v. Sandford should be excised from constitutional-law courses.

For those who don’t know, Dred Scott held that black people can’t be citizens, and so lacked standing to sue. In the scheme of constitutional law, it’s not merely a huge case, but a fundamental lesson, and one that some might think must never be forgotten. Some, but not all.

Matthew Steilen, a law professor at the University at Buffalo, launched the Twitter thread and advocated for editing the case down to a minimalistic page or so, to omit text that is “so gratuitously insulting and demeaning.” He wondered whether assigning that material is asking students “to relive the humiliation of Taney’s language as evidence of his doctrine of white supremacy.”

Relive? Did Steilen have Dred Scott in his classroom? The language he calls “gratuitously insulting and demeaning” is precisely why Dred Scott needs to be taught, in all its excruciating ugliness. Does he think black law students are unaware that slavery existed? What he does think, apparently, is that the demeaning language is too harsh for their eyes to read, their ears to hear. Except it’s not merely real, but was what Chief Justice Roger Taney wrote.

Jeannie explains why she teaches Dred Scott.

In my own constitutional-law course, I assign Dred Scott as the first case for the first day, which is not uncommon. Doing so immediately foregrounds the centrality of slavery and white supremacy to the country’s origin, as a frame for understanding constitutional law. It shows that the standard techniques of constitutional interpretation that students are learning to deploy have enabled morally disastrous conclusions. It also helps to disabuse students of the impulse to approach the Constitution and the Supreme Court with uncritical worship.

Steilen explains why he won’t, or can’t.

Steilen, who wrote the initial tweet about teaching the Dred Scott case, doesn’t disagree with these principles and has worked to add more content on slavery and the Civil War in his course. But, he told me, “George Floyd has changed everything. . . . I wasn’t sure I could muster the moral authority to stand up there and teach this case.” He explained that omitting it entirely would be “a bridge too far,” but he thought it best to assign just “two paragraphs and move on.” He said, “Taney is making the case that Black people who were enslaved were never part of the people of the United States and could never be citizens. . . . It’s just painful. I’m white and I’m going to stand up there and talk with the students, including Black students, about this stuff?

Steilen may be white, and he may feel as if he lacks the “moral authority” to teach Dred Scott, but that’s between him and his god. In the classroom, he’s neither white nor black, and he’s charged with teaching law, nor religion. That’s what his students pay for. That’s what his law school pays for. It makes him feel bad? Sucks to be him. Get a job teaching tax law.

The trenches are tough, ugly, nasty places, where tough, ugly nasty defendants need lawyers who can deal with their tough, ugly, nasty cases. While this issue is not yet pervasive, it’s likely to follow the same path as the N-word in Supreme Court opinions, which has led to perdition.

Among the changes the movement has spurred are stronger efforts to teach the history and theory of racial injustice, in schools at every level. At the same time, it has brought on resistance, in the form of both the predictable conservative backlash against “indoctrinating” students in “critical race theory,” and the more ambivalent liberal concern not to injure students with an unobstructed view of brutal racism. Sometimes the two converge in advocating the editing out of racist content that is deemed too upsetting to be worth the pedagogical benefits.

If it’s too upsetting to read or hear, then law might not be the right place for a student. If it’s too upsetting to teach, then these law students deserve a tougher teacher. And if a prawf thinks  teaching Dred Scott isn’t worth the pedagogical benefits, then they should be pumping gas for a living.

23 thoughts on “Dread Scott

  1. Elpey P.

    One problem with selective hand-wringing over condescending narratives of traumatic exposure to concepts – like performative outrage over impersonal references to slurs – is it implicitly acknowledges indifference if not acceptance by one’s own standards of all sorts of other dehumanizing assaults on non-favored identities. If someone experienced having a knife stuck into their spleen or being called a ______, who really gives a shit. It’s not like *those people* have the same capacity for trauma, and/or need special paternalistic protections.

    Reply
    1. SHG Post author

      You concern yourself with internal rational consistency, while others just check for who is higher on the victim hierarchy.

      Reply
      1. Kathryn M Kase

        I suspect Steilen’s students would have great sympathy for the person who is called a racial slur. Where they’re going to have trouble as lawyers (assuming they make it that far) is knowing how to represent the person alleged to have uttered the slur or to have engaged in sexual contact without consent. Seems to me that law professors overly concerned about causing trauma by even broaching these subjects are destined to graduate classes of prosecutors. And we all know where that leads. (Why, hello Reign of Terror!)

        Reply
        1. Elpey P.

          But will they have great sympathy for the person who hears a classroom reference – perhaps their own, in fact – to a racial slur which is hurtful and crude but isn’t one which stops traffic when referred to non-euphemistically? Either it’s Oppression Olympics or those slurs can apparently cause no traumatic memories to trigger.

          Reply
  2. Bryan Burroughs

    What’s worse: teaching foundational court cases which were abhorrent in their logic and language or dealt with traumatic topics, or infantilizing blacks and women so far as to believe they can’t handle it even discussing it.

    Reply
  3. Jeffrey M Gamso

    Oh, the trauma.

    One of my decades-ago law-school classmates was so frightened by the cases she had to read for the criminal law class that she kept her pistol on the table next to her while she studied. Yet, somehow, she made it through the class and ultimately graduated.

    Of course, she might have shot up a few people along the way. (I never asked her.)

    Reply
    1. Rengit

      Now I finally understand they meant when they warned at 1L orientation, “Look to your left, look to your right. One of the three of you won’t graduate”. Because one of you will be dead or have sustained grievous bodily injury.

      Reply
      1. Jeffrey

        I actually have a recollection of a law student a few years before me who was sleeping when his roommate came into the apartment. Startled, he naturally assumed the intruder to be a thief/burglar/rapist/killer/whatever, grabbed the gun from under his pillow, and shot his roommate to death.

        Of course, all this was in West Texas. Your law school’s mileage may vary.

        Reply
  4. B. McLeod

    If the students have aspirations to someday function as lawyers, they need to learn the law. Schools should adopt a “zero-tolerance” policy for any use of the T-word.

    Reply
    1. Hunting Guy

      Give it a couple of years and there won’t be any lawyers that can try any case with sex or racist language involved.

      What’s that going to do for all the folks that aren’t snowflakes that need lawyers?

      Let them sit in jail? Call SHG out of retirement? Outsource to India where they don’t have that problem?

      Reply
  5. AH

    Obviously the decision does not reach the level of abhorrence of Dred Scott, but excerpts from Hirabayashi v. US (about my actual grandfather) were read at my bar call and I was proud, not triggered. So was he.

    Reply
  6. JEA

    When I was in law school (1999-2000) some of the students persuaded the Crim Law Professor to spend half of the semester on death penalty cases. Shortly before the exams I met with the Professor and made the pitch to him that he should limit the exam to non-homicide matters because the the emotional issues surrounding murder cases would be emotionally taxing and would not be the best test of the material. My theory was that I could cross off half the syllabus when studying for the final exam and I could spend more time prepping for other classes.

    This was twenty years ago so the Crim Law Professor declined, my proposal.

    Reply

Leave a Reply

Your email address will not be published. Required fields are marked *

All comments are subject to editing or deletion if I deem them inappropriate for any reason or no reason. Hyperlinks are not permitted in comments and will be deleted. References to Nazis/Hitler will not be tolerated. I allow anonymous comments, but will not tolerate attacks unless you use your real name. Anyone using the phrase "ad hominem" incorrectly will be ridiculed. If you use ALL CAPS for emphasis, I will assume you wear a tin foil hat and treat you accordingly. I expect civility from you, but that does not mean I will respond in kind. This is my home and I make the rules. If you don't like my rules, then don't comment. Spam is absolutely prohibited, and you will be permanently banned.