Emory University’s resolution agreement with law professor threatens academic freedom

By September 20, 2018

Earlier this year, Harvard Law School Professor Randall Kennedy told me that about once a year, he finds himself “writing a letter to some place in defense of a teacher who has been dismissed for Xeroxing part of my book.”

His book? “nigger: The Strange Career of a Troublesome Word.” The offending content? The word “nigger.”

The word has a sordid and horrific history. But Kennedy, who is black, is wary of banning it. He told me that when Washington, D.C. authorities enacted a policy banning any publication that used the word in schools, the first publication to be removed was The Crisis magazine — the magazine of the National Association for the Advancement of Colored People.

“[P]eople ought to be attentive to the problem with banning, the problem with prohibition, the problem with silencing,” said Kennedy. “What we should want is a citizenry, a populace, that is educated, that is strong, that can listen to various things, and not be traumatized, not be silenced, not be hurt.”

Blanket prohibitions of specific words are blunt tools, divorced from context, that often result in injustices against the very people they seek to support. And in the case of educators, such bans compromise their ability to teach on any number of subjects, from history, to literature, to the law.

The case of Emory University Professor Paul Zwier

Just this week, Emory University School of Law announced its resolution to a controversy involving a professor who used the word “nigger” in a first-year torts class.

Professor Paul Zwier, a white man, was discussing a civil rights case involving a hotel manager who refused to serve a black man named Emmit Fisher by taking away his plate and calling him a “negro.” Zwier instead allegedly used the word “nigger” in discussing the facts of the case. Students protested and Zwier apologized, but the university nonetheless removed him from class and proceeded to investigate student complaints.

In a letter to the Emory faculty after the incident, Zwier explained that he didn’t remember using that word specifically, but that it was possible that he made a mistake in relaying the facts of the case.

“I do know that the ‘N word’ was used in a following case that we would have discussed on [the following] Tuesday,” wrote Zwier. “In other words, it might be that this case was on my mind from the last time I taught it, and it is the source of my having thought that the word was also used in Fisher. In any event, the use of the word was not gratuitous.”

Offensive words in the classroom

How should we think about the use of offensive words in the classroom? Do they always constitute expression protected by free speech and academic freedom norms? It depends on the context.

The gratuitous use of a racial slur, targeted at an individual student inside a classroom, probably would not be covered by a professor’s right to academic freedom. In any case, it seems likely that Zwier did not use the word gratuitously, as he said. And even if his alleged use of the word was a mistake, it was not targeted at any student, and was used for a pedagogical purpose — i.e., describing the facts of a particular case. Zwier said that his “purpose [in the class] was to discuss on Tuesday how tort law evolves away from requiring contact for battery into intentional infliction of emotional distress.”

Not only must professors be able to use certain words that are relevant to the course material they are teaching, they must also be free to sometimes make mistakes when discussing such material. If Zwier made a mistake by using the wrong word — or epithet — in discussing the facts of a case, the appropriate response is a non-punitive correction that doesn’t chill or censor speech germane to teaching a course subject. Instead, Emory chose to suspend Zwier, investigate him, and suggest to the rest of the faculty that certain words are verboten on campus regardless of how they are used.

Emory announces a resolution to its investigation

In announcing the resolution of the investigation, Emory University School of Law Interim Dean James B. Hughes, Jr. wrote to the law school community that not only had Zwier issued an unqualified apology, but that he and the law school had also agreed to the following “steps” to “address the harm that has been inflicted on our community”:

  1. For the next two years, Professor Zwier will not teach any course in which students do not have the ability to choose their professor (mandatory first-year courses).

  2. Professor Zwier has volunteered to revise the teacher’s manual for his textbook(s) to include suggestions of ways in which faculty who use his text might avoid offending students when covering racially sensitive materials.

  3. Professor Zwier will work with a small group of student leaders and faculty (with the assistance of experts from Emory’s Faculty Staff Assistance Program) to create opportunities to engage in dialogues focused on racial sensitivity, and he will agree to participate in the resulting dialogues. (This would be similar to some of the activities that formed a part of Emory’s Transforming Community Project.)

  4. Professor Zwier will participate in sensitivity and unconscious bias training, to be prescribed by [the Office of Equity and Inclusion].

Taken as a whole, these steps send a chilling message to other faculty and leave them in the dark about their expectations as instructors. Of course, Zwier is free to accept the steps, but nowhere in Hughes’ statement does he tell faculty how they should approach course content that involves offensive words and phrases.

The law is full of potentially offensive words, and even non-offensive hypothetical scenarios have landed professors under investigation. Can professors speak or write the words, or assign content that uses them — like, for example, The Crisis magazine — or can’t they?

Is it ever permissible to say a racial slur aloud in class as part of pedagogy? Longtime followers of FIRE’s work might recall our defense of Brandeis University Professor Donald Hindley in 2007. Hindley was a 50-year veteran of teaching who was found guilty of racial harassment and had a monitor placed in his classroom because of his use of the word “wetback” in his Latin American Politics course — in the context of his criticizing its use.

If you’re a faculty member at Emory today, the safest course of action may be self-censorship. For a school that just last year earned FIRE’s highest, “green light” rating for its policies on expression, this is a troubling development.

Emory is a private university not bound by the First Amendment. However, it has committed itself to core principles of free speech and academic freedom, and claims in official policy to place “a very high value on freedom of speech and on the opportunity for intellectual stimulation that can be a product of controversial content.”

And what about the law students, many of whom might one day enter a courtroom where the word is used in the context of a case? Put another way, how does avoiding certain words or content help a student confront the words or content if they might encounter them sometime during the course of their career?

We’ve seen this concern in other areas of the law, as well. In 2014, Harvard Law School Professor Jeannie Suk Gersen wrote about some students who “ask teachers not to include the law of rape on exams for fear that the material would cause them to perform less well.” The justification is that such material might be traumatic. Gersen reports of one student who asked her instructor not to use the word “violate” in class because the word was triggering. “If the topic of sexual assault were to leave the law-school classroom, it would be a tremendous loss—above all to victims of sexual assault,” wrote Gersen.

Kennedy told me that “when we allow the authorities to keep things from us, sometimes with the belief that actually they’re saving us or keeping us from hurt, they’re not keeping us from hurt. … actually, they are hurting us. They are preventing us from using the opportunity presented to strengthen ourselves. How can we be strong if we don’t know what’s out in the world?”

A recurring dispute

This is not the first time a faculty member has run into trouble for using the word “nigger” in the course of their teaching. Earlier this year, Princeton University Professor Lawrence Rosen used the word in a pedagogical context in an anthropology course on “hate speech, blasphemy, and pornography.” After students protested his use of the word, calling it offensive, Rosen voluntarily chose to cancel the course.

But Princeton’s response to the incident runs in stark contrast to Emory’s. Instead of punishing the professor, his department chair, Carolyn Rouse, wrote an editorial “In Defense of Rosen” in the student newspaper:

The students signed up for a course about hate speech, blasphemy, and pornography, so Tuesday’s class introduced them to the topics of the course. Like every semester, at Princeton or Columbia Law, professor Lawrence Rosen started the class by breaking a number of taboos in order to get the students to recognize their emotional response to cultural symbols. By the end of the semester, Rosen hopes that his students will be able to argue why hate speech should or should not be protected using an argument other than “because it made me feel bad.”

Rouse’s defense of Rosen is of the sort we would hope most universities would issue when their professors use offensive words in the context of teaching about offensive words. Universities should stand by their faculty in such situations. To do anything less is to threaten academic freedom, send unclear messages about the scope of that freedom, and compromise the quality of the education students receive.

Schools: Emory University