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Thursday, August 25, 2016

More on the University Chicago letter

A few additional points to Rick's post, on the letter from the University of Chicago on trigger warnings and safe spaces.

First, as I said in a comment on Rick's post, I always have understood trigger warnings as featuring an opt-out on top of the warning: "This is what this material is like and if you need to absent yourself from this material, you may." Consider this example of a content warning, from Angus Johnston, a history prof CUNY who took to Twitter to criticize UC:

At times this semester we will be discussing historical events that may be disturbing, even traumatizing, to some students. If you suspect that specific material is likely to be emotionally challenging for you, I’d be happy to discuss any concerns you may have before the subject comes up in class. Likewise, if you ever wish to discuss your personal reactions to course material with the class or with me individually afterwards, I welcome such discussions as an appropriate part of our classwork.

If you ever feel the need to step outside during a class discussion you may always do so without academic penalty. You will, however, be responsible for any material you miss. If you do leave the room for a significant time, please make arrangements to get notes from another student or see me individually to discuss the situation.

Like Rick, I have on occasion included a light heads-up on assignments (e.g., "This is a sexual harassment case and involves sexually explicit conduct"). I have never considered offering an opt-out. Interestingly, Johnston explains that he originally drafted the warning in reverse--the opt-out first and invitation to discuss second; he switched to lead with the discussion because it "centers dialogue — before, during, or after class — as central to the academic project."

Second, Johnston and The New Republic argued that the letter violates the academic freedom of those professors who wish to provide trigger warnings. This seems to me to over-read the letter. I read it as stating that the university would not provide official trigger warnings in its own programs and activities (e.g., no trigger warning when a controversial speaker comes to campus); that it would not officially designate campus spaces as "safe spaces" (e.g., the dorm is not a space where you are free of offense from what someone else says or has in his dorm room) (Kevin Drum agrees); and that it would not make trigger warnings official university policy. But the letter said nothing about what individual professors could, could not, or must do. A university spokesperson confirmed that "professors maintain broad latitude to engage in teaching practices as they see fit or to accommodate student requests."

This was not good enough for TNR; it insisted that the fact that trigger warnings are not banned "doesn’t get at the problem: the University administration is clearly making a stance on a pedagogical decision that has traditionally been left up to professors. That in itself constitutes a chilling effect and breach of academic freedom." But that is nonsense. A university can--and arguably should or even must--take a stance on many things, including pedagogy, without offending academic freedom. Academic freedom only demands that the university not prohibit or punish any professors who disagree or reject that stance. So academic freedom means the university should not fire the professor who writes a book denying the Shoah; it does not mean the university cannot make public statements that the professor is an idiot. Similarly, academic freedom means the university should not fire a professor for giving his students trigger warnings and opt-outs; it does not mean the university cannot make public statements rejecting trigger warnings as inconsistent with robust, free, and mature debate.

Posted by Howard Wasserman on August 25, 2016 at 09:46 PM in Howard Wasserman, Teaching Law | Permalink


Howard, I agree that it both misreads the letter, and is wrong on the merits, to say that the University's stance somehow offends academic freedom. On the contrary.

Posted by: Rick Garnett | Aug 26, 2016 10:17:58 AM

"Trigger warning" is an awful term. But most of us take the time to point when we might be wading into sensitive material - it's just the decent thing to do. Similarly, in the abstract, it's easy to say "I don't provide opt-outs." But, imagine that a young woman (or man) comes into your office and says "I was brutally raped and I'm having difficulty with some of the material in criminal law." Wouldn't you make some exceptions for that student? I'd like to think I would. Maybe not calling on them to talk about the cases or helping them learn the law divorced from the worst facts? I see a lot of strawmen surrounding "trigger warnings," but not very many real problems. Everyone just seems to be envisioning this gaggle of uppity black lesbians who refuse to read about American history because patriarchy. I think this says more about our fears as academics than anything else.

Posted by: Steve Clowney | Aug 26, 2016 12:25:41 PM

"Maybe not calling on them to talk about the cases or helping them learn the law divorced from the worst facts?"

I'm not quite sure if everyone would agree with the first part (believing that is part of learning) and the second to me requires a bit more discussion. How would one go about that? Is someone brutally raped who has such a reaction likely to be okay with "kinda bad" rape cases? With respect, not trying to be crude here, that's a hard onion to slice.

The warning cited in the opening discussion ("disturbing, even traumatizing") sounds like a reasonable "trigger warning" that various professors would support and not quite the same as "light" warnings like "involves sexually explicit conduct." The "opt-out" can be a range of things too such as an ability to step out in certain cases without penalty.

The New Republic remarks might be wrong, or right, but "nonsense" to me is too strong. The situation has various shades.

Posted by: Joe | Aug 26, 2016 12:53:19 PM

Genuinely curious: Has the "opt out" issue, in particular, actually been a serious problem for any of you? Strikes me that this is another one of those perceived "epidemics" that is the function of a small handful of anecdotes that have been inaccurately described as representative of a huge (but almost nonexistent) nationwide problem.

Posted by: Marty Lederman | Aug 26, 2016 1:30:59 PM

Marty: I have not experienced this and do not know of any colleagues who have. But I would offer a few caveats to that. First, I don't teach any of the classes in which the complaints tend to arise (which seem to be Crim, First Amendment, and international law classes that address Israel/Palestine). Second, the problem does not always take the form of an explicit demand for an opt-out, but of behind-the-scenes complaints, whether to profs or administrators, about some material and how it is presented, which has the effect of pushing professors in the direction of opt-outs (this is what Jeannie Suk described in her magazine essay and what I have heard about at my school with respect to an international law.

But I think you're right that this is more anecdotal than systemic or epidemic. I also wonder whether it is more prevalent in undergrad than law school.

Posted by: Howard Wasserman | Aug 26, 2016 1:43:41 PM

For those of you not following both threads, I will quote in full Rick's explanation (written in a comment to his prior post) of what warnings may do as part of the broader education of new lawyers:

In my experience (so far), my mentioning/acknowledging/reminding that the facts in some of the cases (in particular, in the book I use, several child-abuse and partner-abuse cases) are ugly and painful seems to be received not so much as an invitation to opt-out or leave (I cannot recall anyone asking to do either) as just a reminder that the practice and study of law don't take place simply in a sanitized zone of appellate-court opinions but instead connect with real-world pain, wrongs, and violence. I guess my goal is to be sure they feel like there's nothing strange, or unlawyer-ly, about finding some of the cases difficult to read and think about. I don't think I would let a student "opt out" of a subject, as in "I don't want to study, or be tested on, the law of homicide", but I have, on occasion, gone along with students' requests to not be "cold called" on a particular day. This all feels different, to me, than allowing the possibility of students' taking offense -- say, to the arguments in a particular opinion or dissent -- to determine what we teach.

Posted by: Howard Wasserman | Aug 26, 2016 1:45:46 PM

I always preface the sexual violence section of my criminal-law course at SOAS, University of London, by flagging that the cases might be difficult for some students and that, if so, they should feel free miss those two lectures and get my notes -- no questions asked. I have normally had one or two students take advantage of that option -- and at least three say after the course was ended how much they appreciated the sensitivity.

Posted by: Kevin Jon Heller | Aug 26, 2016 2:19:41 PM

I think much of the mess comes from "trigger warning" usually not being the right word (or even a particularly valuable concept in the classroom).

At face value, "trigger warnings" seem to be alerting students to the existence of a possible trauma trigger -- something that may set of a previously-traumatized student's PTSD. Naturally that's something most people want to avoid doing. The reason it's not very useful in the classroom is that trauma triggers are rather unpredictable. The Noel episode of The West Wing is actually a pretty good representation. After surviving a shooting, Josh isn't triggered by discussions of gun violence; he's triggered by music playing in the lobby that his subconscious is associating with the cacophony of police and ambulance sirens. Trauma triggers are just too personalized and unpredictable for trigger warnings to be particularly helpful -- it's something that's going to have to be up to the student to be aware of manage themselves.

What most people seem to be talking about when "trigger warnings" come up are actually "content warnings." That's just a polite heads-up about what you're about to read. Most of us can handle violence, gore, etc, but we like to be forewarned. If you're going to discuss the McDonald's hot coffee case in class, your students ought to be able to handle seeing the victim's burns, but it's just good form to tell them what they're about to see before you put it up on the projector.

What I think people are finding absurd is when the two ideas get blended. A content warning that the hate crime case you're about to read about has a whole lot of language you'd expect in a hate crime case gets mislabeled as a "trigger warning," giving the implication that hateful language is a common trauma trigger. Or students who'd like a content warning mistakenly ask for a trigger warning, giving the impression that kids these days lose their ability toucans at any mention of patriarchy or colonialism.

Posted by: Derek Tokaz | Aug 27, 2016 8:58:58 AM

"This was not good enough for TNR; it insisted that the fact that trigger warnings are not banned "doesn’t get at the problem: the University administration is clearly making a stance on a pedagogical decision that has traditionally been left up to professors. That in itself constitutes a chilling effect and breach of academic freedom." But that is nonsense. A university can--and arguably should or even must--take a stance on many things, including pedagogy, without offending academic freedom."

Careful what you call "nonsense." The version of academic freedom you're describing is perfectly reasonable and coherent. But it's been rejected by the University of Chicago as a matter of long-standing and frequently reaffirmed official policy. From the 1967 Kalven Committee Report:

"Since the university is a community only for these limited and distinctive purposes [the discovery, improvement, and dissemination of knowledge], it is a community which cannot take collective action on the issues of the day without endangering the conditions for its existence and effectiveness. There is no mechanism by which it can reach a collective position without inhibiting that full freedom of dissent on which it thrives. It cannot insist that all of its members favor a given view of social policy; if it takes collective action, therefore, it does so at the price of censuring any minority who do not agree with the view adopted. In brief, it is community which cannot result to majority vote to reach positions on public issues.

"The neutrality of the university as an institution arises then not from a lack of courage nor out of indifference and insensitivity. It arises out of respect for free inquiry and the obligation to cherish a diversity of viewpoints. And this neutrality as an institution has its complement in the fullest freedom for its faculty and students as individuals to participate in political action and social protest. It finds its complement, too, in the obligation of the university to provide a forum for the most searching and candid discussion of public issues."

Posted by: Andrew MM | Aug 31, 2016 1:57:10 PM

Fair enough. But the university must have room to state and implement its own positions with respect to that expression and those expressive spaces that it controls--university-invited speakers, official university events, extra-curricular uses of classrooms and other university spaces and forums, etc. That, it seems to me, is different than taking a collective position as to how all its members will act. So even if you take the Kalven Cmte position, the letter, perhaps understood in this narrower sense, did not interfere with anyone's intellectual freedom.

Posted by: Howard Wasserman | Aug 31, 2016 5:20:41 PM

On a very narrow reading of the letter, sure, though it would have to be narrower than you're supposing—restrictions on "extra-curricular uses of classrooms and other university spaces" to the extent of banning (or even discouraging) tigger warnings would certainly infringe on the Kalven position. But I don't find that narrow reading plausible, especially since official university events or speakers (as opposed to those sponsored by a particular school, institute, or division) are relatively rare, I believe. They certainly don't constitute a significant part of the undergraduate experience, and there's absolutely nothing in the letter to suggest that the meaning is so constrained.

Posted by: Andrew MM | Sep 1, 2016 7:47:04 AM

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