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.