Academic freedom: More law professors are treading lightly in today’s classrooms

By Mike Stetz

Jason Kilborn is just one of several law professors to apologize in recent years for using a racial term. The law professor at UIC John Marshall School of Law in Chicago got into trouble because his civil procedure exam question included the N word, and the B word.

But he didn’t spell them out. They simply read: “N______” and “B____.”

Still, a student said she suffered heart palpitations when reading it. The professor had used that same question for 10 years without protest. A call to action for reform was written and signed by more than 400 students.

One wrote: “This is violence against the Black community. He needs to be removed immediately. The lack of action from the administration is disappointing and unacceptable.”

Kilborn is not alone in taking flack. In 2015, a Howard University School of Law professor got into trouble for an exam question concerning a Brazilian bikini wax procedure. Two female students complained, and the professor’s action — which included a follow-up discussion in class — was determined to be sexual harassment. 

Some female students at Harvard Law School have argued that they shouldn’t be taught rape and sexual assault cases because they can be unsettling. One student said she was made anguished by the word “violate” even when used in non-sexual assault cases. 

The growing number of such incidents is something of a new phenomenon for law schools, said Keith Whittington, chair of the Academic Committee of the recently formed Academic Freedom Alliance, which finds such examples extremely troubling.

While such blowback has been more prevalent in undergrad where students are younger and arguably less worldly, law schools enroll older students who supposedly knowingly attend an environment where debate and conflict are part and parcel of the educational process, he said.

Some of today’s students “are not behaving the way law school students should be behaving,” said Whittington, a politics professor at Princeton University. “They should be able to handle more serious debate.”

And it’s causing considerable concern for professors who should be protected under long established rules governing free speech and academic freedom, he said. That’s not always the case, though.

The most recent example comes from Georgetown University Law Center, which fired an adjunct professor for making comments about how her Black students don’t do as well as their counterparts. Sandra Sellers expressed concerned about the pattern. She was speaking with a fellow professor, David Batson, via Zoom after class. They did not know they were being recorded.

She said: “Yeah, unfortunately. You know what? I hate to say this. I end up having this, you know, angst, every semester that a lot of my lower ones are blacks. Happens almost every semester.”

She continued: “And it’s like, ‘Oh come on.’ You know, you get some really good ones, but there are also usually some that are just plain at the bottom. It drives me crazy.”

She added: “So, I feel bad.”

Georgetown Law Dean Bill Treanor said he found the remarks “abhorrent” and “reprehensible.” The school’s Black Law Student Association also condemned Sellers and called for her immediate firing. Students were angered that it took the school four days to do so. Batson later resigned. Both apologized.

But Whittington was surprised by the speed in which the firing happened. Georgetown apparently did not investigate the matter — in particular Sellers’s grading history — because it would likely take more than four days to properly do so, he said

Whittington said that it’s perfectly reasonable for professors to discuss what they perceive is a problem among a subset of students. If they don’t do so how can they help try to solve the matter?

He fully understands why Black students would be offended, but that doesn’t mean the discussion was out-of-line, much less a fireable offense.

“One might even understand why students would complain about such a conversation, especially in the current climate where we are primed to see bad intentions and behavior in racialized contexts,” he said. “It is the responsibility of university leaders to be more deliberate and explain why their concerns in a case like this might be misplaced and why the specific action of sanctioning faculty for having such a conversation would be inappropriate.”

Robert L. Shibley, executive director of the Foundation for Individual Rights in Education (FIRE), agreed. These kinds of discussions between professors can be frank and difficult, but they’re necessary if solutions are to be found said Shibley, who is a graduate of Duke University School of Law.

When it comes to the Georgetown case, it’s disingenuous to call the comments “reprehensible,” he said.

“It’s not the kind of thing that should cost you your job in four days,” Shibley said.

While people can disagree with the appropriateness of the conversation, they shouldn’t disagree with their right, as academics, to have it, he said. 

Law school administrations are failing in their responses, he said. Most want such problems to go away as quickly as possible and that means canning or disciplining the professors to mollify students. Protests can erupt quickly and seem quite charged, particularly because of social media. It’s easy for students to take to Twitter and lash out, for instance. It takes only seconds to chime in with a tweet.

Such harsh and immediate actions against professors give the rest of the faculty little faith that the administration will fight for them. It creates a culture of fear as well as weakens the academic environment, he said. Students need to show more mettle in such instances.

“It’s a professional school,” he said. “And they need to be professional.”

Today’s students are not necessarily more sensitive, but they are “differently sensitive,” Shibley said. Many feel they don’t have to endure negative comments or views that run counter to their beliefs. If they face it, they fight back.

Some schools seem to know this sensitivity exists and look to placate it. At the University of Michigan Law School, after Donald Trump was elected president, the school’s psychologist held an event to sooth students. It included “self-care activities” such as coloring, play dough, Legos and bubbles. The event was mocked by some.

Whittington noted how past students used to demand more free speech. During the Vietnam War era, they wanted to openly protest the war and draft.

“Today, students on the left are pushing for free-speech restrictions,” he said. “It’s an odd reversal.”

Guest speakers at some schools get heckled. That happened at City University of New York School of Law when John Blackman, a conservative law professor at South Texas College of Law, was invited to speak by the school’s Federalist Society. For the first 10 minutes, protesters stopped him from speaking. His talk was about, um, free speech.

Many — and not just conservatives — were troubled by the action. Nadine Strossen, a professor of Constitutional Law at New York Law School and the first female national president of the American Civil Liberties Union, wrote this on the Oxford University Press blog:

“To be sure, campuses and other arenas in our society must strive to be inclusive, to make everyone welcome, especially those who traditionally have been excluded or marginalized. But that inclusiv­ity must also extend to those who voice unpopular ideas, especially on campus, where ideas should be most freely aired, discussed and debated.”

And at least one Black professor came to the defense of the UIC professor who used a shortened version of the N word on his exam. John McWhorter, a professor at Columbia University, wrote on his blog, It Bears Mentioning:

“If a black student is traumatized to such a degree by seeing “n*****” on a piece of paper, then that student needs psychological counseling. We all understand the history and power of the N-word, but we all also understand the simple issue of degree. That student who got heart palpitations needs help, and what the suits at the University of Illinois in Chicago should have done was gently direct this student to the proper services, which the school surely provides, for people who have fallen away from the ability to cope with normal life.”

What did the school actually do? It released this statement after the controversy flared: “The Law School recognizes the impact of this issue. The Law School acknowledges that the racial and gender references on the examination were deeply offensive. Faculty should avoid language that could cause hurt and distress to students. Those with tenure and academic freedom should always remember their position of power in our system of legal education.”

Uncomfortable topics are often discussed in law school because the law often focuses on divisive societal issues, experts note. Go to law school and be prepared for some spirited and probing debate.

“No one is forcing you to be a lawyer,” Shibley said. “And there’s no way to avoid things that may be disturbing. Students have the responsibility to handle that.”

This has affected some of the nation’s top law professors. Ronald S. Sullivan Jr., a professor at Harvard Law School, is a well-known defense attorney. But students called for his ouster as dean of one Harvard’s residential colleges when he joined the defense team of Harvard Weinstein, the movie producer accused — and later convicted — of a host of sexual assault crimes.

“For victims of sexual assault and rape on this campus who already feel disempowered by the sheer lack of activity in reprimanding such behavior, the developments of Dean Sullivan's professional work are not only upsetting, but deeply trauma-inducing,” wrote Students for the Removal of Winthrop Dean Sullivan.

Sullivan had defended his role in an email to students: “To the degree we deny unpopular defendants basic due process rights we cease to be the country we imagine ourselves to be. In fact, most of the due process rights we hold dearest derive from lawyers who represented unpopular defendants.”

Harvard did not renew his deanship. Sullivan later left the Weinstein’s defense team.

Both the Academic Freedom Alliance and FIRE look to offer support to professors facing these attacks. Even if tenure does protect some from termination, they can still be the subject of public humiliation and/or lose academic standing and positions.

“For our group, we want to make sure schools live up to the protections afforded faculty,” Whittington said. “When this happens, professors feel isolated and alone.”

It’s reached the point where Eugene Volokh wrote on his blog, The Volokh Conspiracy, a post called, “Why I Wouldn’t Recommend Adjunct Teaching at Law Schools Now.” It can be too dicey, he said.

“Any sufficiently controversial statement, in class or out, can lead to a firestorm of accusations of bigotry, prompt denunciation and firing by the dean, and huge risk to your day-job career.

“We're not talking here about a quiet parting of the ways, a discreet conversation in which the Dean tells an adjunct, ‘we won't need you to teach the course next year.’ We're talking about public excoriation by students and public condemnation by administrators, often leading to prominent media stories, which will routinely come up whenever the adjunct's name is Googled.”

Look at the Georgetown case. It was covered by the Washington Post, the New York Times, the New York Post, Newsweek, Slate, CNN, TMZ, ABC, NBC, CBS, FOX, Yahoo News …

When the Academic Freedom Alliance was formed in response to this trend more than 200 faculty members joined. That number surprised Whittington. He thought it might initially attract a few dozen. It has attracted professors who lean both right and left, he said.

Whittington has taught at Princeton since 1997 and he never personally has had students raise issues regarding his teaching. But like others, he saw how it was growing problem.

“It’s hitting all institutions,” he said. “It’s something I just couldn’t ignore.”