(Quasi)Racist Speech and Speech Codes at Boalt

[Apologies for the long post. Free speech is something I feel strongly about. Also, numerous people have been writing about this issue, and I would like to gather all the available information together.]

Res Ipsa Loquitur has a post about a controversy I had been following that I thought had blown over. Petty Bourgeois writes about a recent incident at Boalt involving alleged racist speech by a guest lecturer and the University's reaction. That reaction includes:

(1) McGovern [the guest lecturer who made the allegedly racist comments] will not be asked back to Boalt

(2) New language prohibiting statements of this kind is currently being
drafted by the two minority students who were in the classroom at the time the
comments were made. This language will be put into the official
guidelines/policy for adjuncts and visiting lecturers.

Petty doesn't have the details on what occurred, but another website has more details.

Eugene Volokh at the Volokh Conspiracy has a post that contained an e-mail from the Boalt Hall administration mentioning an incident of racist speech had occurred and that a policy for acceptable language in class would be drafted. That new policy is what Petty posted.

Eugene's opinion on the announced ban is mixed, but his rough conclusion is that:

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.

What is even more startling is a first hand account of the incident which was subsequently posted by Eugene after he was e-mailed by a Boalt student. Here is the relevant part of the e-mail:

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 this is the incident that prompted the speech code, then it seems like an obvious over-reaction. On the other hand, if Boalt is legally allowed to have a speech code (as Eugene argues), then it does not matter what bad reason they use to justify it.

One final note. Eugene has some comments on the wisdom of instituing such a policy:

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...



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.

I oppose speech codes such as this, anyway. It is particularly troubling if the event which prompted Boalt to act was so innocuous, and that students were kept in the dark on what really occurred. If anyone attending Boalt has any more information on this, please send me an e-mail. Also, if anyone with legal expertise has an opinion on prohibitions on professors' conduct in the classroom; I would love to hear more about this. When I return to Berkeley I will follow this up by trying to meet with the professor whose class this occurred in, as well as the Boalt administrators who helped draft this policy.

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