As the New York Times reported today, a debate has erupted at a New Jersey law school about a white student’s quoting a line of a court case that includes the N-word. This is an increasingly important debate. It may seem simple for people to avoid using this one offending word. However, vague policies coupled with rapidly evolving, poorly communicated changes in what is considered acceptable language, lack of fair process, an atmosphere of fear and a punitive mindset have combined to create a serious threat to academic freedom, intellectual diversity and free speech on campus. These things are making it extremely difficult to have exactly the sort of conversations about race that faculty and students ought to be having now, but are afraid to.

As will be discussed, tenure is not the protection that many people think it is. As the Times reports: “recent uses of slurs by professors during lessons have resulted in discipline and dismissal.” Importantly, these cases generally do not involve professors or students using these words to insult students or anyone else. They involve use of the words in hypotheticals that are the stock in trade of legal teaching or the direct quotation of important legal cases that use the N-word.

Rather than protect academic freedom by clearly stating a policy on racial epithets, administrators leave students and faculty to take their chances through trial and error. This deprives everybody of the right to debate and challenge rules about what can and cannot be said on campus and to attempt to come to a productive meeting of the minds.

Students and professors should know whether there is a university policy against directly quoting court cases, literature, music, and historical documents that use the N-word or other racial epithets. In a more intellectually healthy environment this would produce the sort of debate society should be having more openly these days. Does banning use of the word avoid unnecessary trauma or does it destructively sanitize the past? Should the rules be the same for Black students and faculty as they are for everybody else? Do a person’s intentions matter?

Censorship almost never stops at a single word. The University of Southern California disciplined a business professor for using (appropriately in the context of the class discussion) a Chinese word that some people thought sounded like the N-word. Others, including teachers, having been disciplined or accused of racism for using the word “niggardly”, which has no relation to the N-word other than sounding uncomfortably similar to it.

This tendency of taboo words to morph into increasingly broad censorship is not limited to the N-word. For example, while it is reasonable to push back against professors who use rape hypotheticals in exploitative ways, the pressure to self-censor almost always expands. Harvard law professor Jennie Suk Gerson wrote in The New Yorker that: “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.”

As a result, faculty and students alike have good reason to ask whether they can, for example, use words such as “negro” even in appropriate circumstances. Can a professor even assign a reading that includes the N-word? Or assign a reading written by someone who has used the word in other works? What about gender-based epithets that appear in documents or videos that are relevant to the class material? When the rules are unstated, change rapidly, and seem to be based on the level of outrage expressed rather than a steady process for evaluating whether someone should be disciplined, professors and students will naturally stay very far from anything that might conceivably cross someone’s line.

But doesn’t tenure protect against firings for vague offenses? Not really. First of all, around three quarters of faculty positions at universities these days are non-tenure track. At Georgetown, an adjunct law professor was fired and another resigned under pressure for what they thought was a private conversation about Black students being overrepresented at the bottom portion of the grading curve. It’s important to note that one thing they discussed was whether their own unconscious biases might be responsible for that fact. This is exactly the sort of conversations faculty members should be having and summary dismissal will obviously make faculty very reluctant to have that conversation.

Also, students are not protected by tenure, and the concept of “microagressions” makes it very difficult for them to know what crosses the line. A court recently green lit a lawsuit by a medical student who was banned from campus because he asked questions that were apparently too pointed about a talk on microaggressions.

It’s no wonder that students and faculty alike have grown fearful about expressing opinions on race, gender and other controversial issues. The problem of censorship goes far beyond one word, but there is no question that the N-word is at the core of censorship debate. The best first step in creating clear rules that protect against abuse while allowing ample room for debate on the great issues of our time is for universities to step up to the plate and set out clear guidance on the N-word.

Ideally, these guidelines would:

-distinguish between mere reference to the word and directing the word at another person.

-distinguish between clearly gratuitous use of the word and use that is reasonably related to the class material.

-set out a clear policy against faculty directing any insulting language at students based on their characteristics, as opposed to things that they actually say or write. This should include not only race, gender, ethnicity, sexuality and so forth, but also party affiliation, religion, or what part of the country (or world) they come from.

—set out a clear a disciplinary process that relies on tenured professors, not Human Resources, other administrators or students. Any adverse decision would have to be justified in writing and would be subject to appeal.

It is certainly true that students should be protected from personal attacks and gratuitous use of highly offensive words. But they also need to be protected from punitive actions based on vague standards and procedures that chill freedom of expression and make necessary conversations much harder.



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