Some thoughts about the UC Berkeley law school (Boalt Hall) incident,

assuming my correspondent’s account is correct:

1. As I mentioned earlier, I’m quite troubled by the administration’s statement that:
   

   [T]he handbook that we will provide to Lecturers when we hire them to teach a course . . . will make our policy on this issue clear. We will not tolerate an instructor’s use of racist, sexist or homophobic expressions in the classroom.

   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.

        How can one, for instance, have a thorough policy discussion in an immigration law class if people are barred from saying that “illegal Mexican immigrant labor” is “inferior”? Maybe it is inferior, and maybe it isn’t. Maybe it’s no worse than illegal immigrant labor from any other country, or maybe it is worse. Maybe America would be better off with more immigration, or less immigration, or more immigration from European countries and less from Mexico. Maybe we should allow immigration without regard to whether it makes us better off, or without regard to the country from which the people are arriving. I don’t know the right answer to this. But I do know that just prohibiting any discussion of the possibility that illegal immigrant labor is inferior, or that illegal immigration from some countries is worse than illegal immigration from other countries, makes it impossible to have a serious debate on the matter. (And of course if the remark is a “racist . . . expression[]” that “will not [be] tolerate[d]” in negotiation class, it would be no less a prohibited “racist expression” in the immigration law class.)

2. But beyond this, it sounds like the teacher was role-playing — expressing the views of a hypothetical difficult client, and not her own. That’s not racist conduct, any more than a professor’s hypothetical “Imagine that John Doe calls someone a kike — is that constitutionally unprotected fighting words?” is anti-Semitic. It could be eminently valuable pedagogy, for instance to teach students how to keep their cool when dealing with such comments, or just to remind students that many clients won’t be operating under the social conventions of UC Berkeley.

        It could also have been a misfire, with students not getting the message, in which case the teacher should have clarified matters for the students when it became clear that the students didn’t get it. Getting students angry is usually not good pedagogy, which is why when there’s a risk of students getting angry, even because of a misunderstanding, a good teacher should watch carefully for signals that the students indeed misunderstood. But in any event, I see no evidence of any racism on the teacher’s part. At most, there might have been a lapse of attention, for which the solution is an explanation to the students and some advice to the teacher, not public characterization of this as “a guest lecturer [making] racist remarks during a class,” a statement that, even if technically true (which is unclear), is at the very least highly misleading without the context that this was a lecturer playing a character.

3. 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. So for the sake of transparency, for the sake of clarifying the impetus behind a proposed speech code, and for the sake of preventing minority students from feeling needlessly embattled, it seems to me that the administration should be disclosing the details of the incident, not withholding them.

     Again, I stress that this is based on one correspondent’s account (though it matches in considerable measure information that I heard indirectly from a couple of other sources), and if that account is incorrect and incomplete, then some of these criticisms might not apply. But if it is substantially correct, then the UC Berkeley law school’s reactions seem rather misguided, and their proposed speech code seems to pose a serious danger to academic freedom and quality higher education.