Earlier in the year, Professor Eugene Volokh used the "n-word," both in class—in teaching a First Amendment case—and outside of class when recounting the incident to a colleague. As you may know, Professor Volokh has strong views about why he chooses to use incendiary language—even when vile—in his classroom, without euphemism or alteration. While he has the right to make that choice as a matter of academic freedom and First Amendment rights, so long as he is not using this or other words with animus, many of us—myself included—strongly believe that he could achieve his learning goals more effectively and empathetically without repeating the word itself. That is equally true in casual settings outside the classroom. Slurs, even when mentioned for pedagogical purposes, hurt people. The n-word is inextricably associated with anti-Black prejudice, racism and slavery; it is a word that carries with it the weight of our shameful history and the reality of ongoing anti-Black racism. I am deeply sorry for the pain and offense the use of this word has caused, and I very much respect the important work our Black Law Students Association undertook, using speech to counter speech, in the flowchart they distributed around the building.
Volokh's reply?
I want to respond here by explaining why I think I was right, and why I will continue to accurately quote things in class and outside it.
Volokh offers five (5) justifications for his use of the word. Stiegler took particular issue with one of them:
[4.] Moreover, law schools are training people to become lawyers. Lawyers have to deal with facts as they are, regardless of how unpleasant those facts may be. They need to read cases that contain nasty words and describe nastier actions.
. . .
And indeed every day, lawyers of all races, religions, ethnic groups, and sexual orientations handle cases—whether in criminal law, employment law, education law, civil rights law, family law, or elsewhere—in which they hear extremely offensive material. They handle these situations with professionalism, and don't let the casual cruelty, callousness, and hatred that they read or hear about get them down.
. . .
I do not for a moment think that black lawyers allow themselves to be debilitated by hearing material about racism, gay lawyers about hatred towards gays, Jewish lawyers about anti-Semitism, and so on, whether that material describes violent attacks, contains epithets, or whatever else. I think that, as law students and law professors, we should follow this example.
Volokh's argument relies on an inaccurate view legal practice and the ideal attorney, does not account for the dynamic between professors and students, and fails to acknowledge the impact that his words have on his audience.
First, there's a difference between being "debilitated" by something and suffering stress, offense, or discomfort as a result of something. While lawyers may not always become debilitated in the circumstances Volokh describes, it's unrealistic to claim that they do not suffer some form of stress. Students, likewise, may not be debilitated by Volokh's use of the n-word, but it adds to the already stressful environment in which most, if not all, law students operate.
Second, Volokh's claim that attorneys don't let "casual cruelty, callousness, and hatred . . . get them down," is false. Volokh uses an idealized, unfazed attorney as a model that law students should not only aspire to be, but should already be. Shannon Kilpatrick makes this point in a series of tweets reacting to Stiegler--noting that lawyers should not aspire to be "unemotional robots" and that having an emotional response to negative circumstances motivates attorneys to right wrongs. It is, at best, questionable that a professor's use of offensive language in a law school class will effectively desensitize students against that sort of language. But if such a desensitization scheme were to succeed, the result would be a group of jaded, unemotional attorneys unable to effectively react to instances of vile behavior. Taking offense at the behavior of one's own client or adversary is crucial--as attorneys can work to control their client's behavior, or exploit the bad behavior of an adverse witness, party, or attorney.
Third, Volokh's overall claim is false: lawyers often do become debilitated by the stresses of the job. Much has been written on the stress of the legal profession, and the impact of this stress on attorneys' mental health. Many attorneys think that their mental health is worse off because of their work. As for mental health issues in legal academia, I highly recommend this three-part series of posts by Brian Clarke (here, here, and here). One instance of offensive language often will not result in the depression and anxiety that these articles and posts describe. But each instance contributes to the broad range of stressors that students and attorneys face every day.
Volokh's fifth argument in his post is worth noting as well:
[5.] Indeed, the implicit message of the claim that black law students, in particular, need to be protected from hearing cases that contain [the n-word] because they find it so "painful" or "challenging" (to quote the Dean of Wake Forest's law school) or offensive or even traumatic, is that young black lawyers will likewise be sharply disturbed by hearing the word in the everyday reality of their practices—in courtrooms, in depositions, in witness interviews, wherever it is part of the facts of a case or of a relevant precedent. If this were true, then this would suggest that black lawyers are going to be less effective than white lawyers, because they are so pained, challenged, disturbed, and distracted by simply hearing the word.
As I mentioned in item 4 above, I do not for a moment believe that black lawyers actually are less effective lawyers, precisely because I do not believe that they are so easily wounded simply by hearing the facts of a case. But I also don't believe that black law students (or other law students) are likewise so easily wounded.
I believe that students and lawyers of all identities are perfectly capable of handling the often ugly reality of the world, as reflected in the precedents and in the cases before them. And I think it does them no service to tell them that they are somehow entitled to be so shielded from that reality that they don't even hear some aspects of that reality.
Volokh's point in his fifth argument ignores the backlash to his use of the n-word, as well as students' requests that he not use the word. It also uses his students as a shield for his own behavior by claiming that because they are tough and capable, he should be able to act in ways that these tough students will be able to withstand. Doing so shifts the spotlight from Volokh's own behavior onto his students and accusers.
Volokh attempts to shift the onus to whoever is accusing him of insensitivity--claiming that criticism of his use of the n-word implies that students will be "sharply disturbed" by his doing so, and that the accuser is therefore "suggest[ing]" that African-American lawyers will be less effective than white lawyers. This argument goes a step too far with its unsupported assumption that if people are disturbed or offended by certain language, they will be less effective lawyers. People can be offended, but still get their jobs done. And as I've already noted above, being affected by vile language or facts is a mark of empathy, not ineffectiveness--and recognizing the impact this language has on oneself and others can help attorneys craft arguments that appeal to a range of judges or jurors.
Even though people can perform under difficult circumstances, this does not mean that multiple instances of offensive language or behavior do not eventually take a toll. And it does not mean that people in Volokh's position shouldn't take steps to minimize the negative impact their actions will have on others. Taking such steps isn't coddling, it's basic decency.
Moreover, attorneys faced with similar instances of offensive or vile language and behavior operate under different circumstances than law students. Many attorneys choose their clients, and if a potential client behaves in a way that the attorney finds offensive, the attorney may simply choose not to work for that client. Some attorneys like public defenders have clients appointed to them, but these attorneys can exert pressure on their clients to change their behavior, as offensive actions and remarks are unlikely to play well with judges and juries. Attorneys with existing clients, or who have less of a choice of who they choose as clients, can exercise this control as well--using the threat of a bad outcome or sanctions as motivation to get clients in line. And if it is the other side that is acting badly, effective attorneys will document this behavior to use it against the other side at deposition, trial, or in a motion for sanctions.
Beyond choosing whether to take his class in the first place, students in Volokh's class have little ability to exert control over Volokh's actions. And the limited availability of classes or spaces in those classes often removes students' ability to choose what course to take altogether. Volokh's post makes it clear that he is unwilling to change, as an apology from the dean resulted in nothing more than him doubling down on his behavior.
Volokh's arguments rely on an unrealistic portrayal of practicing attorneys, a failure to acknowledge the stress of the legal profession, and a refusal to consider the dynamics between professors and students.
My original plan for this post was to expand on the argument that Stiegler made in his series of tweets and the argument I made in my own thread here. That argument--in short--criticizes the (all too common) use of bad practices in the legal world to justify unusual and offensive teaching techniques. I'll get to that argument in my next post.
Labels: criticism , law school , practice of law
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