Coming Speech Code for Berkeley?

The Volokh Conspiracy, May 4-5

Eugene Volokh, 5/4/2004 08:48:02 AM]

Coming speech code for teachers at UC Berkeley law school? Someone forwarded to me this e-mail, which was sent to all students by the administration at Boalt Hall, the UC Berkeley law school:

Folks:

This semester we had an incident in which a guest lecturer made racist remarks during a class. The incident caused a great deal of hurt and anger in the students who are acquainted with it. I have met with a number of students to discuss the incident and what to do concerning it. While the responsible party was not a member of the faculty or even an appointed lecturer, she stood in the position of an instructor when she made the remarks. The Lecturer in charge of the class did not take steps to address the matter and things grew worse. In an attempt to prevent a recurrence of such an event [an administration official] is working with students to draft language that will go into the handbook that we will provide to Lecturers when we hire them to teach a course. The language will make our policy on this issue clear. We will not tolerate an instructor’s use of racist, sexist or homophobic expressions in the classroom. Boalt has to be a place where all people feel themselves to be a part of the community. We will do our best to make everyone aware of this fact in the fall. I am sorry for the distress caused by what happened this semester.

As to this year’s incident, I will work with the Associate Dean to deal with the personnel issues involved and we will resolve them once exam period is completed. . . .

Naturally, it’s hard to evaluate a policy until we see some specific text. Perhaps “racist, sexist or homophobic expressions” simply means racist, sexist, or homophobic insults (setting aside those used in quotes or hypotheticals), such as “nigger,” “Uncle Tom” (used to suggest that certain attitudes, while permissible from whites, are not allowed to blacks), possibly “bitch” and “son-of-a-bitch,” “faggot,” and the like. I agree that those ought not be used in class, though I’m not sure why the prohibition is limited to those insults and not others. Such slurs are so likely to both interfere with effective teaching and be hard to justify as being necessary to express ideas, again except for quotes and hypotheticals, that it may be consistent with academic freedom for a university department to prohibit them as a matter of sound pedagogy (I think both the conditions are necessary for such a prohibition to be legitimate).

On the other hand, read literally “racist, sexist or homophobic expressions” seems to cover any expressions of opinion that convey a racist, sexist or homophobic message, potentially including, for instance:

Asking whether some or all of the underrepresentation of men or women in certain fields might be caused not by sex discrimination, but rather by biological differences between the sexes that make men’s and women’s temperaments, intellectual capacities, and performance different.
Discussing in class on the book The Bell Curve, and suggesting that the authors might have been right in their conclusion that there are race-based differences in intelligence.
Suggesting in class (whether on constitutional law, family law, or sexual orientation and the law) that one possible argument against allowing same-sex marriage is that opposite-sex couples are better parents than same-sex couples.

If the policy would include such statements, that seems to be quite troubling: The statements may be right or wrong, or good or bad, but it seems to me that they are eminently legitimate issues to raise in class (whether they’re raised by mere “Lecturers,” which seems to refer to non-tenure-track adjunct professors, or by the tenure-track faculty). Any prohibition on such speech would be a severe blow to free and open discussions of ideas in class. UC Berkeley should be trying to foster free and open discussion, and to train students to deal with it even when the discussion makes them “feel” bad, rather than trying to suppress it.

Note that I treat including “will not tolerate” in a teacher’s handbook as a prohibition. Technically, I suppose the school can say that it “will not tolerate” some speech and simply mean that it will not let it go unrebutted, and will criticize the speech when it happens. But in the context of an employee handbook, especially one issued to untenured teachers, I strongly suspect that the “will not tolerate” rule will be understood (by the teachers, by the administration, and by the students) as a ban.

I should mention that I’m not sure such a policy would be unconstitutional. When people are hired by the government to speak — to teach some subject matter, for instance — the government may be entitled to dictate to the employees what to say while speaking on the government’s behalf. I think that as a matter of policy, it makes more sense to leave university teachers with a very great deal of discretion, and control them, when control is necessary, by moral suasion and social norms rather than by formal prohibitions. But my tentative view is that the Constitution does not demand that universities adopt such an approach, sound as the approach might be. (I think control over scholarship is quite different, because there the faculty member isn’t speaking on behalf of the university; as to teaching, the traditional view is somewhat more complex, and in any event I think the university can say that it’s shifting to more of a teacher-speaks-for-the-university model.)

Nonetheless, the constitutional question isn’t open-and-shut — some people disagree with the analysis I just gave, and some courts have indeed struck down faculty speech policies on vagueness grounds, which might well be applicable to a broad ban on “racist, sexist, or homophobic expressions,” though I note again that it’s hard to judge the policy until one sees some precise language. And in any event, regardless of whether there’s a First Amendment violation, I think there would be a very serious academic freedom issue here, if indeed the policy is broader than just prohibiting slurs.

I’ve asked the administration precisely what its intentions are on this, but it seems that they aren’t yet clear: I was told that the goal was to prohibit “racist remarks” (and, presumably, sexist and homophobic ones as well), but the specifics hadn’t yet been decided. Unfortunately, “racist remarks” is of course as ambiguous as “racist, sexist or homophobic expressions.” The potential breadth and vagueness of the phrase worries me, and leads me to hope that defenders of academic freedom will watch the matter closely, and will fight hard any overly broad policy that might be suggested.

In the meantime, if anyone knows the specifics of the incident to which the quoted e-mail refers, I’d love to hear them. The policy should, I think, be judged on its own, but knowing about the incident might provide some useful background.

[Eugene Volokh, 5/5/2004 09:07:54 PM]
First-hand account of allegedly “racist” UC Berkeley law school incident: This is the incident that has led the law school administration to promise a new speech code for lecturers. Paul Nunez, a law student, provides a first-hand account:

A friend of mine . . . told me that you were looking for someone with a first-hand account of the supposed utterance of a “racist” comment during a class at Boalt. Well, I happened to have witnessed the event first-hand and in fact, the instructor was specifically speaking to me when she made the comment. So I’d say I probably have the best possible understanding of the context of the comment. Here’s what happened:

It was NOT the sort of useless racism that one hears from people like neo-nazis and some of the more radical members of Mecha. The class was, in large part, supposed to be a role-playing sort of class whereby we, acting as attorneys, would have to learn to deal with clients and opposing parties (played by the instructors) while trying to formulate and execute a strategy for dealing with the client’s problem. One of the things we had to learn to deal with were crabby, irritable, and imperfect clients. Thus, during one role-playing scenario (in fact, she made the supposedly racist comment while role-playing a negotiation with me in particular), our instructor, acting as the no-nonsense CFO of a small mid-western construction company, commented on the high quality of the company’s product by saying that they didn’t employ inferior illegal Mexican immigrant labor. That was it. Seriously. . . .

If anyone else has a different recollection of this — or the same one — please pass it along.

[Eugene Volokh, 5/5/2004 10:44:06 PM]
Some thoughts about the UC Berkeley law school (Boalt Hall) incident, assuming my correspondent’s account is correct:

As I mentioned earlier, I’m quite troubled by the administration’s statement that:

[T]he handbook that we will provide to Lecturers when we hire them to teach a course . . . will make our policy on this issue clear. We will not tolerate an instructor’s use of racist, sexist or homophobic expressions in the classroom.

If the vague phrase “racist, sexist or homophobic expressions” is defined as anything beyond slurs or utterly irrelevant asides, I mentioned, such a prohibition could seriously interfere with free and open class discussion. And if the speech here — the speech that is prompting the policy — is an example of the kind of “racist . . . expressions” that they’re trying to suppress, then my fears seem in danger of being realized.

How can one, for instance, have a thorough policy discussion in an immigration law class if people are barred from saying that “illegal Mexican immigrant labor” is “inferior”? Maybe it is inferior, and maybe it isn’t. Maybe it’s no worse than illegal immigrant labor from any other country, or maybe it is worse. Maybe America would be better off with more immigration, or less immigration, or more immigration from European countries and less from Mexico. Maybe we should allow immigration without regard to whether it makes us better off, or without regard to the country from which the people are arriving. I don’t know the right answer to this. But I do know that just prohibiting any discussion of the possibility that illegal immigrant labor is inferior, or that illegal immigration from some countries is worse than illegal immigration from other countries, makes it impossible to have a serious debate on the matter. (And of course if the remark is a “racist . . . expression[]” that “will not [be] tolerate[d]” in negotiation class, it would be no less a prohibited “racist expression” in the immigration law class.)

But beyond this, it sounds like the teacher was role-playing — expressing the views of a hypothetical difficult client, and not her own. That’s not racist conduct, any more than a professor’s hypothetical “Imagine that John Doe calls someone a kike — is that constitutionally unprotected fighting words?” is anti-Semitic. It could be eminently valuable pedagogy, for instance to teach students how to keep their cool when dealing with such comments, or just to remind students that many clients won’t be operating under the social conventions of UC Berkeley.

It could also have been a misfire, with students not getting the message, in which case the teacher should have clarified matters for the students when it became clear that the students didn’t get it. Getting students angry is usually not good pedagogy, which is why when there’s a risk of students getting angry, even because of a misunderstanding, a good teacher should watch carefully for signals that the students indeed misunderstood. But in any event, I see no evidence of any racism on the teacher’s part. At most, there might have been a lapse of attention, for which the solution is an explanation to the students and some advice to the teacher, not public characterization of this as “a guest lecturer [making] racist remarks during a class,” a statement that, even if technically true (which is unclear), is at the very least highly misleading without the context that this was a lecturer playing a character.

Finally, as I understand it from other sources at the law school, the details of the incident are apparently not being made clear to students (or at least weren’t as of yesterday); all that many students know for sure about the incident is what the administration e-mail reported. So if my correspondent is right, the administration’s actions portray a law school instructor as being racist even though that isn’t so. That’s hardly fair to the instructor, whose identity has likely leaked out, but it’s also not good for minority students. If the administration’s goal is to make “Boalt . . . be a place where all people feel themselves to be a part of the community,” then exaggerated accounts that allege racism where there is none undermine the administration’s own goals. So for the sake of transparency, for the sake of clarifying the impetus behind a proposed speech code, and for the sake of preventing minority students from feeling needlessly embattled, it seems to me that the administration should be disclosing the details of the incident, not withholding them.

Again, I stress that this is based on one correspondent’s account (though it matches in considerable measure information that I heard indirectly from a couple of other sources), and if that account is incorrect and incomplete, then some of these criticisms might not apply. But if it is substantially correct, then the UC Berkeley law school’s reactions seem rather misguided, and their proposed speech code seems to pose a serious danger to academic freedom and quality higher education.

	Coming Speech Code for Berkeley? The Volokh Conspiracy, May 4-5 Eugene Volokh, 5/4/2004 08:48:02 AM] Coming speech code for teachers at UC Berkeley law school? Someone forwarded to me this e-mail, which was sent to all students by the administration at Boalt Hall, the UC Berkeley law school: Folks: This semester we had an incident in which a guest lecturer made racist remarks during a class. The incident caused a great deal of hurt and anger in the students who are acquainted with it. I have met with a number of students to discuss the incident and what to do concerning it. While the responsible party was not a member of the faculty or even an appointed lecturer, she stood in the position of an instructor when she made the remarks. The Lecturer in charge of the class did not take steps to address the matter and things grew worse. In an attempt to prevent a recurrence of such an event [an administration official] is working with students to draft language that will go into the handbook that we will provide to Lecturers when we hire them to teach a course. The language will make our policy on this issue clear. We will not tolerate an instructor’s use of racist, sexist or homophobic expressions in the classroom. Boalt has to be a place where all people feel themselves to be a part of the community. We will do our best to make everyone aware of this fact in the fall. I am sorry for the distress caused by what happened this semester. As to this year’s incident, I will work with the Associate Dean to deal with the personnel issues involved and we will resolve them once exam period is completed. . . . Naturally, it’s hard to evaluate a policy until we see some specific text. Perhaps “racist, sexist or homophobic expressions” simply means racist, sexist, or homophobic insults (setting aside those used in quotes or hypotheticals), such as “nigger,” “Uncle Tom” (used to suggest that certain attitudes, while permissible from whites, are not allowed to blacks), possibly “bitch” and “son-of-a-bitch,” “faggot,” and the like. I agree that those ought not be used in class, though I’m not sure why the prohibition is limited to those insults and not others. Such slurs are so likely to both interfere with effective teaching and be hard to justify as being necessary to express ideas, again except for quotes and hypotheticals, that it may be consistent with academic freedom for a university department to prohibit them as a matter of sound pedagogy (I think both the conditions are necessary for such a prohibition to be legitimate). On the other hand, read literally “racist, sexist or homophobic expressions” seems to cover any expressions of opinion that convey a racist, sexist or homophobic message, potentially including, for instance: Asking whether some or all of the underrepresentation of men or women in certain fields might be caused not by sex discrimination, but rather by biological differences between the sexes that make men’s and women’s temperaments, intellectual capacities, and performance different. Discussing in class on the book The Bell Curve, and suggesting that the authors might have been right in their conclusion that there are race-based differences in intelligence. Suggesting in class (whether on constitutional law, family law, or sexual orientation and the law) that one possible argument against allowing same-sex marriage is that opposite-sex couples are better parents than same-sex couples. If the policy would include such statements, that seems to be quite troubling: The statements may be right or wrong, or good or bad, but it seems to me that they are eminently legitimate issues to raise in class (whether they’re raised by mere “Lecturers,” which seems to refer to non-tenure-track adjunct professors, or by the tenure-track faculty). Any prohibition on such speech would be a severe blow to free and open discussions of ideas in class. UC Berkeley should be trying to foster free and open discussion, and to train students to deal with it even when the discussion makes them “feel” bad, rather than trying to suppress it. Note that I treat including “will not tolerate” in a teacher’s handbook as a prohibition. Technically, I suppose the school can say that it “will not tolerate” some speech and simply mean that it will not let it go unrebutted, and will criticize the speech when it happens. But in the context of an employee handbook, especially one issued to untenured teachers, I strongly suspect that the “will not tolerate” rule will be understood (by the teachers, by the administration, and by the students) as a ban. I should mention that I’m not sure such a policy would be unconstitutional. When people are hired by the government to speak — to teach some subject matter, for instance — the government may be entitled to dictate to the employees what to say while speaking on the government’s behalf. I think that as a matter of policy, it makes more sense to leave university teachers with a very great deal of discretion, and control them, when control is necessary, by moral suasion and social norms rather than by formal prohibitions. But my tentative view is that the Constitution does not demand that universities adopt such an approach, sound as the approach might be. (I think control over scholarship is quite different, because there the faculty member isn’t speaking on behalf of the university; as to teaching, the traditional view is somewhat more complex, and in any event I think the university can say that it’s shifting to more of a teacher-speaks-for-the-university model.) Nonetheless, the constitutional question isn’t open-and-shut — some people disagree with the analysis I just gave, and some courts have indeed struck down faculty speech policies on vagueness grounds, which might well be applicable to a broad ban on “racist, sexist, or homophobic expressions,” though I note again that it’s hard to judge the policy until one sees some precise language. And in any event, regardless of whether there’s a First Amendment violation, I think there would be a very serious academic freedom issue here, if indeed the policy is broader than just prohibiting slurs. I’ve asked the administration precisely what its intentions are on this, but it seems that they aren’t yet clear: I was told that the goal was to prohibit “racist remarks” (and, presumably, sexist and homophobic ones as well), but the specifics hadn’t yet been decided. Unfortunately, “racist remarks” is of course as ambiguous as “racist, sexist or homophobic expressions.” The potential breadth and vagueness of the phrase worries me, and leads me to hope that defenders of academic freedom will watch the matter closely, and will fight hard any overly broad policy that might be suggested. In the meantime, if anyone knows the specifics of the incident to which the quoted e-mail refers, I’d love to hear them. The policy should, I think, be judged on its own, but knowing about the incident might provide some useful background. [Eugene Volokh, 5/5/2004 09:07:54 PM] First-hand account of allegedly “racist” UC Berkeley law school incident: This is the incident that has led the law school administration to promise a new speech code for lecturers. Paul Nunez, a law student, provides a first-hand account: A friend of mine . . . told me that you were looking for someone with a first-hand account of the supposed utterance of a “racist” comment during a class at Boalt. Well, I happened to have witnessed the event first-hand and in fact, the instructor was specifically speaking to me when she made the comment. So I’d say I probably have the best possible understanding of the context of the comment. Here’s what happened: It was NOT the sort of useless racism that one hears from people like neo-nazis and some of the more radical members of Mecha. The class was, in large part, supposed to be a role-playing sort of class whereby we, acting as attorneys, would have to learn to deal with clients and opposing parties (played by the instructors) while trying to formulate and execute a strategy for dealing with the client’s problem. One of the things we had to learn to deal with were crabby, irritable, and imperfect clients. Thus, during one role-playing scenario (in fact, she made the supposedly racist comment while role-playing a negotiation with me in particular), our instructor, acting as the no-nonsense CFO of a small mid-western construction company, commented on the high quality of the company’s product by saying that they didn’t employ inferior illegal Mexican immigrant labor. That was it. Seriously. . . . If anyone else has a different recollection of this — or the same one — please pass it along. [Eugene Volokh, 5/5/2004 10:44:06 PM] Some thoughts about the UC Berkeley law school (Boalt Hall) incident, assuming my correspondent’s account is correct: As I mentioned earlier, I’m quite troubled by the administration’s statement that: [T]he handbook that we will provide to Lecturers when we hire them to teach a course . . . will make our policy on this issue clear. We will not tolerate an instructor’s use of racist, sexist or homophobic expressions in the classroom. If the vague phrase “racist, sexist or homophobic expressions” is defined as anything beyond slurs or utterly irrelevant asides, I mentioned, such a prohibition could seriously interfere with free and open class discussion. And if the speech here — the speech that is prompting the policy — is an example of the kind of “racist . . . expressions” that they’re trying to suppress, then my fears seem in danger of being realized. How can one, for instance, have a thorough policy discussion in an immigration law class if people are barred from saying that “illegal Mexican immigrant labor” is “inferior”? Maybe it is inferior, and maybe it isn’t. Maybe it’s no worse than illegal immigrant labor from any other country, or maybe it is worse. Maybe America would be better off with more immigration, or less immigration, or more immigration from European countries and less from Mexico. Maybe we should allow immigration without regard to whether it makes us better off, or without regard to the country from which the people are arriving. I don’t know the right answer to this. But I do know that just prohibiting any discussion of the possibility that illegal immigrant labor is inferior, or that illegal immigration from some countries is worse than illegal immigration from other countries, makes it impossible to have a serious debate on the matter. (And of course if the remark is a “racist . . . expression[]” that “will not [be] tolerate[d]” in negotiation class, it would be no less a prohibited “racist expression” in the immigration law class.) But beyond this, it sounds like *the teacher was role-playing* — expressing the views of a hypothetical difficult client, and not her own*. That’s not racist conduct, any more than a professor’s hypothetical “Imagine that John Doe calls someone a kike — is that constitutionally unprotected fighting words?” is anti-Semitic. It could be eminently valuable pedagogy, for instance to teach students how to keep their cool when dealing with such comments, or just to remind students that many clients won’t be operating under the social conventions of UC Berkeley. It could also have been a misfire, with students not getting the message, in which case the teacher should have clarified matters for the students when it became clear that the students didn’t get it. Getting students angry is usually not good pedagogy, which is why when there’s a risk of students getting angry, even because of a misunderstanding, a good teacher should watch carefully for signals that the students indeed misunderstood. But in any event, I see no evidence of any racism on the teacher’s part. At most, there might have been a lapse of attention, for which the solution is an explanation to the students and some advice to the teacher, not public characterization of this as “a guest lecturer [making] racist remarks during a class,” a statement that, even if technically true (which is unclear), is at the very least highly misleading without the context that this was a lecturer playing a character. Finally, as I understand it from other sources at the law school, the details of the incident are apparently not* being made clear to students (or at least weren’t as of yesterday); all that many students know for sure about the incident is what the administration e-mail reported. So if my correspondent is right, the administration’s actions portray a law school instructor as being racist even though that isn’t so. That’s hardly fair to the instructor, whose identity has likely leaked out, but it’s also not good for minority students. If the administration’s goal is to make “Boalt . . . be a place where all people feel themselves to be a part of the community,” then exaggerated accounts that allege racism where there is none undermine the administration’s own goals. So for the sake of transparency, for the sake of clarifying the impetus behind a proposed speech code, and for the sake of preventing minority students from feeling needlessly embattled, it seems to me that the administration should be disclosing the details of the incident, not withholding them. Again, I stress that this is based on one correspondent’s account (though it matches in considerable measure information that I heard indirectly from a couple of other sources), and if that account is incorrect and incomplete, then some of these criticisms might not apply. But if it is substantially correct, then the UC Berkeley law school’s reactions seem rather misguided, and their proposed speech code seems to pose a serious danger to academic freedom and quality higher education.
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