Via Eugene Volokh, a firsthand account of a recent class session at UC Berkeley's Boalt law school:

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 ... 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.

Folks:

This semester we had an incident in which a guest lecturer made racist remarks during a class. The incident caused a great deal of hurt and anger in the students who are acquainted with it. I have met with a number of students to discuss the incident and what to do concerning it. While the responsible party was not a member of the faculty or even an appointed lecturer, she stood in the position of an instructor when she made the remarks. The Lecturer in charge of the class did not take steps to address the matter and things grew worse. In an attempt to prevent a recurrence of such an event [an administration official] is working with students to draft language that will go into the handbook that we will provide to Lecturers when we hire them to teach a course. The language 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. Boalt has to be a place where all people feel themselves to be a part of the community. We will do our best to make everyone aware of this fact in the fall. I am sorry for the distress caused by what happened this semester.

As to this year's incident, I will work with the Associate Dean to deal with the personnel issues involved and we will resolve them once exam period is completed. . . .

Here's some of what the ever-temperate Volokh has to say about Boalt's announcement that lecturers' speech will henceforth be regulated by a vague, overbroad, and infinitely abusable code:

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"?

[...]

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.

[...]

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.

It's often noted that the concept of academic freedom is largely a joke in an academy where ever more instructors are not tenured. The Boalt situation underscores this. Even if Boalt decides that for legal and ethical reasons it would be a bad idea to impose a vague, overbroad, and infinitely abusable speech code on lecturers, it can still make lecturers' employment implicitly contingent on conformity to its apparently draconian views on classroom expression. Ultimately, there is no need for a speech code at all, except insofar as one would ensure that incoming lecturers understood what was expected of them in the way of self-censorship. All Boalt has to do when one of its contingent faculty violates the school's evident preference for repression over free inquiry is not renew that lecturer's contract. In other words, I think an unwritten speech code probably already exists at Boalt (the tone of the memo testifies to this), and that this unwritten code will continue to exert influence over adjunct personnel decisions regardless of whether a formal policy on speech gets enacted.

How is any of this suprising? The public has demanded that universities be "managed" by lawyers and MBAs, and this is the natural result. Students are now called "tuition-paying units," and the primary responsibility of a professor is to create organization men while not exposing the university to lawsuits.

I wouldn't exactly hold up Boalt as an example of corporate power and attitudes. Somehow, I don't think Boalt is particularly interested in public opinion.

Boalt's faculty is dominated by radical feminists. Think it would be better to look at this as the way these folks would like the world to work if they were in charge. What they would do is pretty clear... punish perceived enemies and reward perceived friends.

I graduated from Boalt recently and this does not suprise me at all. In fact, I'm suprised it hasn't happened before. I managed to avoid situations like this by taking tax classes, admin law, antitrust law, etc. The only reason I went to Boalt was to have the name on my diploma and access to the higher end of the job market. Unfortunately, all this baggage comes with it, too.

And, at least at Boalt, I don't think this has anything to do with students as tuition paying units demanding better/different services. This is really the atmosphere at the school from the top down. In fact, I find it poignant that it was a guest lectureer who made the statements. Any prof (tenured or on the tenure track) would not have uttered such a phrase.

Besides, there's a lot of truth in the instructor's role-playing personna: Illegal Mexican immigrant labor is usually inferior. The people generally don't have formal education or training, and their entry into the country illegally usually means they can't GET that training. Untrained, uneducated labor is inferior in nearly all cases, and usually results in an inferior product. This is a fact of how the world works. Unfortunately, it's not politically correct anymore to acknowledge reality, but instead only speak of how this 'ought to be' in the minds of ivory tower types who would probably also produce inferior product if they ever actually entered the workforce and got a real job...

Eugene Volokh realizes he works at an educational institution that is insane; in response, he rings his hands. Erin O'connor realizes she works at an educational institution that is insane; in response, she quits. Unless and until serious people refuse to participate in educational insanity, regardless of the cost to their so-called careers, educational insanity will continue and increase. Erin O'Connor has shown the way: I wonder if any others will follow.

Here's my story, sad but true, about a prof that I once knew. (God bless Dion and the Belmonts.)
The Place: NYU School of Law;
The Time: Fall, 1989;
The Class: Torts;
The Professor: an eminent scholar and attorney with one Supreme Court victory under his belt - so he was more than just a teacher. He wasn't particularly well liked as a first year teacher however. He was thought of as difficult and vague. Typically liberal, well intentioned, and on the 'right side' of most political and social issues. Was considered too demanding by his first year tort students. People that got through that and took his advanced courses were both thrilled and enriched by the experience.
The case: New York Times v. Sullivan. The landmark 1st Amendment case from the glory days of the civil rights movement in the 60s. For those not familiar with it - the Sheriff of Birmingham, Alabama had just finished brutalizing civil rights marchers with nightsticks, fire hoses, etc. The NAACP placed an ad in the NYT condemning the sheriff. Sheriff sued the NYT for libel and won a huge judgment in the lower courts. The Supreme Court overruled in a landmark decision that still forms the precedential heart of press 1st Amendment freedoms.
The following conversation took place while discussing the case:
Prof: So as an attorney how would you have represented the sheriff?
Student: [student was an Asian-American female to the extent anyone considers that relevant] I wouldn't represent him.
Prof: Excellent answer - and this raises a very interesting set of issues. As an attorney you are under no ethical obligation to represent anyone. The choice is yours. If for any reason you wish to decline to represent someone, for whatever reason, it is your choice. But consider this, as a first year lawyer you might be instructed to help in that representation or you might just need a new client. [I thought then and now that this was a good piece of real-world teaching] Now, do you think how the sheriff approached you about it - it might make a difference to your decision?
Student: Possibly.
Professor: Well do you think that you would have a differing response if a) he came to you and said, I try so hard to do the right thing, my name has been smeared, I didn't do anything wrong, please help me, or b) he came to you and said, what right do those New York Jews have coming down here and interfering with how we deal with those uppity n ... s [he used the common racial epithet here]
Student: Well, in this case I probably wouldn't represent him in either instance. I would have fought for civil rights and would not have taken on the representation.
End of exchange.
Well, all hell broke loose after the class. Students were agitated and upset. Various student groups went to the Dean to protest. (If memory serves representatives from BALSA, APALSA, and GLSA [[Black and Latino, Asian-Pacific, and Gay-Lesbian student groups]. Representatives from those groups sat in on the next class to make sure their members were no longer intimidated by this racist professor.
The Professor was flabbergasted. He did apologize. He was humiliated and found himself detailing the many things he had done in the 60s to fight for civil rights - including pro bono desegregation cases - but he also said - didn't you realize that I was speaking in the voice of the Sheriff of Birmingham Alabama? Did anyone doubt that these were the type of words that man would have used? No one answered and that point seemed to have been lost (at least publicly) on most of his students. The fury abated the next day and no more was made of it. The school administration, apart from hearing out the groups, took no formal steps and I have the impression that they did try to point out the obvious contextual use of the term and to point out also that there was no harmful intent involved in the use of that word. However, the professor stopped teaching 1st years after that year but increased his advanced seminar schedule. I do not know if this was his choice or not. I assumed it was - and perhaps I would have done the same after an incident like that.

One last point about the incident. As noted, the professor was not particularly well liked by 1st year students. We did have other professors that were beloved. In particular, our Criminal law professor was something of a radical (I know - you're shocked) and was well liked both because of his pleasant personality and his radical views of the criminal justice system. I always felt that if he had used the same word in a similar context (say about a NY cop using the word while eating down a suspect) those same people that protested might have thought it was cool that this professor was bringing reality to the class room. This is about when I started thinking that speech codes were not aimed at offensive speech - but at offensive speakers.

But if you're both tenured, and a professional who could easily have a big-time career outside the law school, then just what is the excuse for not saying "Kiss my a**" in response to such idiotic "complaints" instead of knuckling under? If the people who have the greatest imaginable career security won't do this then who the hell will? It's all very depressing.

Steve, can't say that I disagree with you but on the other hand these folks are faced with an awful Hobson's choice. It takes a mighty strong person to say kiss my a** and then have his life made a living hell in perpetuity as he or she becomes branded with the appelation 'racist'. I get the impression that fighting back would lead the powers to be to conclude - see, he is a racist - he won't even say I'm sorry. Let's escalate this. (Most groups right or left in my view thrive on the escalation rather than the reduction of conflict. "I'll see your "kiss my a**" and raise you a sit in, or detah threats, or bad press, etc. ) It is a cost that not many (or too few depending on ones viewpoint) are prepared to make. I don't know that I would.
It's a worn out scenario, isn't it?

What would they do about an instructor who came in and did a role-playing bit as a troublesome client in an EEOC hearing situation, saying, "I called her a half-witted politial correctness ideologue," and now I am being picketed by low-IQ special interest groups, and a host of university administrators and faculty, who contend that the phrase, "political correctness ideologue" is a hateful phrase, designed to insult, stigmatize and belittle decent well-intended advocates of political correctness"?

And how would you represent, effectively, and abu Gharib guard charged with abusive misconduct, if you agreed to take on the representation? Run that whole hornets-nest idea past the faculty PC gurus, and have them suggest how they would square their most extremist PC beliefs with the notions that everyone is entitled to competent and diligent representation and the rule of law is a principle that in all individual disputed situations functions in an advesarial manner.

As for Boalt, you know, we really can't get enough of that stuff here at Berkeley.

Law students, as a group, are a bunch of babies. Law school is supposed to toughen them up; that's the difference between professional training and a purely academic grad school. As part of training students to be professional dvocates, law schools are supposed to teach students to think rigorously, to defend themselves logically in public in response to fierce attacks and to remain calm and analytical when all hell is breaking loose around them. Teaching them that they are entitled to get all upset and to take offense whenever someone says something that hurts their feelings, well, I hope that I get to face those students across the table someday, because I'll know how to push their buttons.

DBL, you are right on point here. :)

My alma mater is not alone in placing a goood deal of emphasis recently on clinical as a supplement to academic work. (oral advocacy, housing, urban law clinics, etc.) That is done with the express purpose of providing students with a dose of real-world experience while in law school. A positive step for the most part imho. Of course, since it really is not the real-world the experience is sanitized often to the point of meaninglessness. I spent two semesters in housing court working on landlord tenant disputes - and it was brutal.

As DBL suggests, 'pushing buttons' is litigation 101. You can't run to the Dean if an attorney tries to bait you during a deposition.

One war story: a colleague/partner of mine at my old firm, a self-described New Yorican ( a New Yorker of Puerto Rican descent, was engaged in a nasty piece of litigation. His opponent continually baited him, made racial cracks, etc. in their numerous personal exchanges. This carried on into the deposition phase of the matter. The transcript was littered with this stuff. Did he complain? No. Did he respond? Yes - the nastier the opponent got - the more polite his reply. The outcome: Well my partner moved for summary judgment (a motion to end the case before it goes to trial). Included in his motion papers were numerous references to and quotations from the deposition testimony to support his arguments. Of course, he managed to wrap around enough text in quoting the transcript (a lot of the opponent's vitriolic and racist interjections/comments were made - foolishly enough - on the record and found their way into the stenographic transcript)to include the offensive remarks. Of course he also included his own overly gentile and professional responses.
My friend won his motion and our client won his case. Believe it or not the other guy complained he had been sandbagged, that our partner was unethical, and that he was the victim of political correctness by the judge, etc. It was beautiful. (I have no clue as to whether the Judge was influenced by the inclusion of the stupid remarks, it certainly didn't hurt - but I love the fact that the other guy thought so.).
My friend, who was furious at the guy - never let his anger get in the way of his judgment.
The lesson - don't whine, don't complain, figure out a way to turn it to your advantage.

In other words: don't get mad, get even. And 'revenge is a dish best served cold'.

I can come up with some other soppy ones if you want.

Claire, yes that revenge served cold quote did cross my mind although I hesitated to use it. :)
Suppose the sequel to the book "Everything I need to know about life I learned in kindergarten" could be named "Everything I need to know about the law I learned on Star Trek." (That title alone would probably guarantee a good advance.)
Come to think of it, that's not a bad idea. Erin, or anyone else out there interested in working with me on that one? (I have seen maybe only 3 episodes of Star Trek in my time and have seen none of the movies -so I could probably give it a fresh perspective.)

Go for it, Stolypin, but it's probably been done.

"In other words: don't get mad, get even. And 'revenge is a dish best served cold'."

How about: "Don't hate your enemies. It clouds your judgement." --Michael Corleone

thinloi, you can't go wrong with the Godfather. As to the rants about unhappy lawyers - see above and below - I think you can't go wrong with Hyman Roth - "This is the life we chose." end of story.

The problem with having people "stand up to the system" by quitting is that such tactics will only work if the system being left would fail without those that are leaving.

I don't think that would be the case with academia. I think if all the ... Mmm ... Non-PC compliant teachers left, there would be more than enough PC compliant people willing (although perhaps not as able) to take their place.

Which would just make the situation worse, no?