The Legal Beat

Use Racial Slurs In The Classroom!
Posted on Tuesday May 04, 2021

When several law professors encourage me to read an article, I know it is going to be either really good or it will incite me.

The article, “The New Taboo: Quoting Epithets in the Classroom and Beyond,” in the most recent edition of Capital University Law Review, is the latter case.  The article’s authors are professors Randall Kennedy (Harvard) and Eugene Volokh (UCLA). Kennedy is author of articles and books about that “strange and troublesome word” that the article spends much time discussing and repeating. Volokh’s experience with that same word is a bit more controversial, but the link to his blog post lays out his arguments fairly. I didn’t make it through Kennedy’s books, but I did engage in reading some of his articles. And I should disclose I read Volokh’s blog before workouts.

The authors argue that law professors should not be penalized for uttering slurs such as the article’s favorite, “the N-word, (what Kennedy calls the “Atomic Bomb” of racial slurs). The authors suggest that not only should they not be discouraged from using it, but rather white law professors SHOULD use it for proper pedagogy.

The authors adequately explain the thesis of this 66-page tome: “We think that, used properly, such teaching helps convey and reinforce important academic and professional norms of accuracy and precision in use of sources.” Why? Because students ought to be prepared to deal with accurate depiction of facts, whether in court or any other practice experience.  “Accurate quotation is particularly proper in law teaching because grappling with unredacted facts is a professional requirement among jurists, one for which law students ought to be prepared.”

The authors argue that students need to be prepared to face these words in real life. The authors describe professors who have been disciplined for uttering racial slurs, uttering things in other languages that sound like racial slurs, etc., in a variety of contexts.  I presume that the authors think the wielders have been disciplined unfairly in all circumstances.

Students and professors should understand, say the authors, the distinction between “use” and “mention.”  This distinction, according to the authors, is “a sharp divide between using a term to insult someone (which the legal system rightly condemns), and mentioning it, usually in quoting some person or document (which is routine in the legal system).”  Sorry, Elie. Courts mention the word repeatedly because factual accuracy is important. Therefore, the authors claim, we ought to prepare students for that world.

In case you feel like checking, I’ll save you some time: The article uses the “Atomic Bomb” 126 times, not counting variations of the word and words that sound like a racial slur in different languages. The article uses a homophobic slur 77 times. A slur against women appears seven times. There’s truly an offensive word for everyone in this article.

The article points to 9,500 Westlaw-accessible opinions that use the “Atomic Bomb.” Sorry, “including cases, trial court orders, and administrative decisions.” One wonders what the breakdown of those cases are. Out of how many total? How many were employment discrimination claims? My random sample suggests a lot of employment discrimination cases. I’m hoping the authors will provide more data.

Often times, the article pivots and discusses the case of the Chinese word that sounds like the “Atomic Bomb” and things beyond the law. However, I will focus my remarks solely on the objective of their article: To allow white law professors to say racial slurs in class, in particular the “Atomic Bomb.” I will not engage in the larger debate about use of racial slurs in other contexts.  This blog post is going to run long as it is.

• Professors who like to use racial slurs are not necessarily pedagogical giants.

The authors assume that the professors who will use racial slurs are the ones who are devoted to making sure that the students understand the world of law as it really is. Okay, sure, I have seen a few quality teachers encounter serious misadventures with racial slurs.

HOWEVER, that’s not who I hear the most about. In my experience of being a student IN classrooms, the professors most likely to throw out that stuff just want to say it. And it is easy to mask one’s predilection for the “use” of the word by hiding it in “mentions.” As an example, if a professor puts on his syllabus a lot of cases in which the “Atomic Bomb” is wielded, is the professor doing so because the courts use it or because that’s the way he gets his jollies?

In other words, the gap between “use” and “mention” isn’t that wide after all.  In fact, there is quite the correlation between one’s desire to use the word and one’s mention of it. That is precisely the problem. This is not an isolated concern. It is a white law professor fetish (because it is taboo). It is also a racist old white man’s fetish. Let me repeat that: It’s a white man’s fetish. At the very least, the problem with mixed motives is that the racist law professor might be well able to justify his Atomic Bombs with this rationale. And that means use and mention become the same. Whether they have “become our profanity” or not, it should not be something uttered in the classroom.

The use-mention distinction is a quaint argument for the side of the utterer, but it means absolutely nothing to the recipient. It is uttered by the prof, and the reason may not matter at all. To the extent someone thinks it is pedagogically significant, it might be only from one side of the classroom.

And authors open the door further in Footnote 42. “We think that it is also legitimate to use such words in hypotheticals, rather than quotes, though we agree that there the need to do so may be less pressing.” And here is where use-mention distinction fails most spectacularly. Who is the most likely to come up with a hypothetical where one simply MUST utter the “Atomic Bomb?”

• Reading slurs in the text of cases is different than having the professor utter them and quote them.

Students are not as naïve as the article might seem to suggest. Despite Kennedy’s acknowledgement in the article that he has been called the “Atomic Bomb,” the article then forgets the lived experiences of students. Asserting that we need to get them ready for the real world by uttering racial slurs in class misses the point: Black students have heard the “Atomic Bomb.” Often times, they have heard it from racists. Perhaps even from teachers and professors. Those are not mutually exclusive sets, by the way. The legal academy is not diverse.

“Atom bomb” dropping means signaling to them you are no different, despite your protestations otherwise. They have had to deal with it. So, when a professor claims they are saying it out of the goodness of their heart or “pedagogy,” I wonder if students will be inclined to believe them, or wonder, quite rightly, whether the professor is just racist. To the extent that law schools are woefully lacking in student diversity, the professor is creating quite an isolating experience for a few of the students. And if your school lacks diversity in faculty, then also for your isolated Black faculty member who has heard that you like to utter the “Atomic Bomb” in class.

Regardless, even if students take you at your word, you’ve said it. That automatically puts you in a different category of people. And it isn’t a good category. To this day, I think about the teachers who uttered racial slurs and that is the ONLY thing I remember from them.

For those of us who have personally experienced this masterful piece of … pedagogy, what happens when the professor utters the word is not what the professor thinks is going to happen. The class is not incredibly diverse. The “Atomic Bomb” is uttered. Where do you think the white students are going to look to see if there is a reaction? What will your Black students be thinking about as you have shined that spotlight? I’ll give you a hint, it’s not about the professor’s lecture. This is observable to the professor.  The Groupme chats asking, “WHY THE F**K did he just say that?” are not. Even in a racially diverse class, Black students will feel put on the spot.

By uttering the slur, the professor has injured future learning. They have changed the dynamic of the classroom and signaled to their students what value the professor places not on learning, but on them. That effect will be amplified if the students wind up being spokespeople for their race after the professor says the racial slur. More on this later.

And when a professor utters the slur, who else are they encouraging to utter it in after-class discussions? I’m just spitballing here, but most classes probably have some students who are not sympathetic to race issues. As the professor utters the word, will the professor be (quite wrongly) educating them as well that it’s okay to drop that Atomic Bomb when discussing the case in the halls of the school?

Teaching is not done in a vacuum. Law isn’t physics. Using a racial slur, no matter the “noble” intentions of the professor, will be laden with the malodorous context of the word. Black students have seen incredible violence and racism. They have experienced it. From authority figures. Then they get to school, and their white professor is attempting to demonstrate “historical accuracy” in the one place they thought they might get a break. Black students are familiar with the white savior complex in education. Or, as two other authors put it, it is “curriculum violence, the “deliberate manipulation of academic programming” that injures the learner’s well-being.

There are no backsies. And no one can give you a “pass” to utter racial slurs.

• The authors ignore the costs of uttering racial slurs and the value of less offensive alternatives.

The authors are lightning quick to dismiss the injury to Black students from the uttering of the slurs in class. Also, in my opinion, they mischaracterize the origin of the injury.

Let’s assume that the authors are correct that there is value in uttering a racial slur in some mandatory law school classes. Can that value be achieved through a less offensive alternative? The article argues no, implying that those who do offer less offensive alternatives are not fully preparing their students for the racial slurs to come and not accurately portraying the past.

Even in the practice of law, there is a distinction in the utterance. Sure, a student seeking a career in employment law or criminal defense is likely to come across racial slurs a lot — in transcripts, testimony, and sometimes coming out of their clients’ mouths. But does that mean they should tolerate it when it comes out of their supervisors’ mouths? If it is casually bandied about the office? Context matters.

The authors do not balance whatever value they claim is achievable solely through uttering slurs with the costs to the audience and to pedagogy. It’s easy for them to not balance those costs when they assume there are none.  I’ll be frank here: The injury discussion reads a lot like “we don’t believe it’s that bad. Suck it up.” As the authors put it, “Some have argued that mentioning an anti-black slur in the classroom improperly ‘places a burden on Black students that other students do not face.’ We are skeptical about the magnitude of the burden; indeed, we doubt that it is materially greater than the normal burdens that students may face in many situations.”

Had they looked at the education literature, they might have encountered the discussions there of hate speech. Racism in schools, online or not, have the effect of lowering student learning outcomes, self-esteem, and happiness.  The authors suggest that would not be so when a student gets to come to class every day and wonder what racial slur the professor will use today. How about the literature that suggests the increasing polarization of topics such as racism? How about the literature on race-related stressors in college students?

In other words, education is a two-way street (with lots of externalities), and a professor’s utterance may have just blocked the ability of students to hear what the professor is saying. Not because the students have never heard the words before. Not because students haven’t handled the words (and worse) in everyday life. The harm is because their professor said it, and they will never look at that professor the same way again.

The article also ignores the externalities of such a classroom endeavor, too.  In a time when law professors are openly discussing their views of Black law students in the most racist way possible, is it a good idea to attempt to convey information in the most racist way possible, too? It might be unfair, but you might end up there with the vestige of professor Amy Wax if you follow the article’s advice. Imagine the recording I could make of someone reading aloud from the author’s tome. “Atomic Bomb” over 100 times.  Pedagogy?  Are you sure?

• The article assumes that because the “Atomic Bomb” is forbidden and other words are not, that the onus should be on inclusion of the word and not exclusion.

The article points out the “Atomic Bomb’s” peculiar history as taboo. Which isn’t surprising, given Kennedy’s work on the subject. The authors suggest other words are not so curtailed, including offensive AAPI terms and misogynistic terms. Moreover, even racists terms are not dealt with equally.  Here, let me quote: “There are, however, other words with toxic associations: KKK. Lynching. Nazi. Auschwitz. Genocide. Rape. They are not epithets, but much in life is worse than epithets.”

Let’s take each one of these arguments separately. First, it is true that other offensive words do not have the same level of taboo as the “Atomic Bomb,” but isn’t that a point against using the “Atomic Bomb?” Also, the authors were mighty selective as to which words they chose in their discussion to set up the parallel.

Second, did you catch the feint in the quotation? KKK and Nazis are describing the perpetrators, not the victims of oppression. And, those words are the very terms those groups sought to be called! In other words, they are triggering precisely because those are the groups that commit hate, including wielding the offensive epithets around.

By the way, “KKK” only appears seven times in the article.

I have more quibbles, but this is a blog post, not a reply. The bottom line is perhaps I have more faith in our students’ ability to read context, and less in the ability of colleagues to engage in a well-rounded pedagogy in which any benefit of utterance of the racial slurs would outweigh the sizable costs.

Having said all that, the article caused me to do some serious thinking (and research) about the issue. For that, I thank the authors.

Context matters. A white professor uttering the “Atomic Bomb.” In class. The people lacking in historical perspective are not the students. Look in the mirror.

LawProfBlawg is an anonymous professor at a top 100 law school. You can see more of his musings here. He is way funnier on social media, he claims. Please follow him on Twitter (@lawprofblawg). Email him at [email protected].

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