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Saturday, July 09, 2016

Law professor responds to students on "Black Lives Matter" (Updated)

Update, July 10: As noted in the comments, the response states that the professor wore the t-shirt on the day the Crim Pro class discussed police violence against the Black community. But that leads me to a curriculum question: How many of you cover police violence (or, more broadly, Fourth Amendment/excessive force) in crim pro? This seems an odd fit in a course that typically focuses on how police conduct affects subsequent prosecution and the evidence that can be used in that prosecution. I think of excessive force (aside from physically coercing confessions, which has not been BLM's focus) not as a matter of the lawfulness of a search or seizure for evidentiary purposes, but only for subsequent civil damages suits.

Original Post:

This letter by an unknown crim law professor at an unknown law school responding to an anonymous student complaint about the prof wearing a "Black Lives Matter" t-shirt to class is making the rounds and drawing raves in the left-leaning interwebs, as well as Facebook accounts of law profs.

I post it and welcome responses comments. I have not yet figured out what I think.

On one hand, the substantive defense of BLM as a name and a movement is spot-on, especially the idea of focus v. exclusion. So is the defense of the opinion, philosophy, and social context involved in creating, and thus teaching, "law." The student letter is poorly written nonsense, trafficking in "freedom from speech" tropes ("alienates and isolates," etc.).

On the other, the letter comes across as pedantic (especially Part II, where she picks apart the structure of the letter).*

[*] I agree with most of her arguments, especially about the use of CAPS. It is gratuitous in a debate.

I cannot get past wearing a t-shirt (to say nothing of a politically charged one, which seems intentionally provocative) to class.** The professor's argument either means it would be permissible for me to wear a t-shirt with a Confederate flag or an IDF logo to class (a position I doubt the professor would endorse) or that the freedom-of-thought-in-the-classroom ideal is limited only to ideas with which this professor agrees. Finally, I cannot help thinking that something else is going on. Is this really about the t-shirt alone? Is the t-shirt alone the "indoctrination or personal opinions" while the class content was focused on the elements of murder, or whatever? Or is the t-shirt reflective of the broader approach to teaching crim law? This does not make the students' arguments any better, but it would make the stuff about BLM, in the original letter and the response, beside the point.

[**] I have written before aboutpolitical signs and messages in faculty offices, which raises similar issues.

Again, I do not know what I think. But I would like to hear from others.

Update: A commenter notes that the letter identifies one time when the professor wore the shirt "around campus." That being so, I take back all of the above criticism of the professor. The student letter becomes even more inane--the professor wearing that shirt, outside of the classroom, does not impose a personal opinion on them or undermine their learning of the law.

Posted by Howard Wasserman on July 9, 2016 at 06:59 PM in Howard Wasserman, Teaching Law | Permalink


How terribly removed you must be to believe that 1) BLM is irrelevant to criminal procedure, and 2) many of the SCt decisions on police authority in searches/seizures has nothing to do with a social movement that calls for a fundamental re-imagining of police authority, policing in general, and the criminal justice system more broadly.

Posted by: Truth | Jul 13, 2016 3:37:24 PM

I agree with Alice completely. I am not sure how the issues related to the Black Lives Matter movement can NOT come up in Crim Pro. How do you discuss Illinois v. Wardlow without discussing why a young black man might run from the police in a "high crime area." (I teach in Baltimore and the tragic circumstances surrounding Freddie Gray's death served to illuminate many of the issues surrounding the doctrine we covered in class.)

Posted by: David Jaros | Jul 13, 2016 12:53:27 PM

Quick rebuttals to very good comments:

@Stuart Friedman: You are right. Most profs are decent, that's why I said that the damage was most likely to come from the student's peers. However, for a prof to where the T-shirt to class, we can assume this is a pet issue for the prof--one with which the prof is quite emotionally attached. Do you, as a 1L, want to tell a prof (who controls grades and reputation, an thus has control over your future law school career) that he or she needs to cool it on the pet issue? They say hell hath no fury like a woman scorned--unless you've seen a prof defending a pet issue. Perhaps y'all are braver people than me, but I've seen too many occasions the other way to expect a student to openly confront a prof over a pet issue and put his or her academic career at risk.

@Sykes: True, lawyering is face-to-face and contentious. But law school is not lawyering (as any practicing lawyer will tell you). And the student actually has no protection against a prof who takes a dislike towards him or her, whereas a lawyer has a professional board of ethics to protect him or her against a vindictive peer or judge. For these reasons, I think it dishonest to insist the student should not have been anonymous and to count it as a mark against him.

To do so is to assume a more ethical academy than actually exists.

Posted by: YesterdayIKilledAMammoth | Jul 12, 2016 4:34:34 PM

Alice - anon @ 1:36 here. So how would you teach BLM in a criminal procedure class? What lessons would you expect the class to learn? What supporting evidence would you use? What reading would you assign?

Posted by: Anon | Jul 12, 2016 9:16:14 AM

Two quick points to Asher. First, as I said, it doesn't make sense to use resisting arrest charges as an independent variable. The same officers who decide to use force decide when to charge resisting arrest. Second, I'm mostly in agreement with your last paragraph. That's why I emphasized, way upthread, that it doesn't make sense to isolate excessive force as an issue independent of police authority to make minor seizures. But on rates of offending, I would like to see your evidence that blacks commit traffic offenses at higher rates than persons of other races. For petty offenses like broken tail lights, how do we measure rates of offending independently of police enforcement practices?

Posted by: Alice Ristroph | Jul 12, 2016 12:10:16 AM

Two quick points to Asher. First, as I said, it doesn't make sense to use resisting arrest charges as an independent variable. The same officers who decide to use force decide when to charge resisting arrest. Second, I'm mostly in agreement with your last paragraph. That's why I emphasized, way upthread, that it doesn't make sense to isolate excessive force as an issue independent of police authority to make minor seizures. But on rates of offending, I would like to see your evidence that blacks commit traffic offenses at higher rates than persons of other races. For petty offenses like broken tail lights, how do we measure rates of offending independently of police enforcement practices?

Posted by: Alice Ristroph | Jul 12, 2016 12:10:13 AM

The Houston sample of arrests that may or may not have ended in shootings does include resisting arrest and evading arrest, which I think are part of the BLM critique (that is, they suggest that black people are shot over trumped-up resistance to arrest). Also, the study's much larger sample of shootings simpliciter isn't limited to shootings following an arrest for some serious crime, and there the study finds that (a) blacks are not more likely to be 'shot first' than whites, i.e., shot before they attack police, (b) that police are not more likely, in the event of a shooting, to incorrectly assess that blacks are armed than to incorrectly assess that whites are armed, and that (c) there are no racial differences in the kinds of crimes for which police were called for in encounters that end in shootings. These findings, particularly (c), undercut what you say about the study and BLM's claims, though I agree with you that the part of the study on Houston isn't entirely responsive to those claims. I don't think the Times column describes those findings very clearly, but you can find them at pages 21-25 of the study:


For the most part, I suspect, the higher rate at which black people are shot, relative to their share of the population, is a function of the higher rate at which black people are arrested or stopped by police, which in turn is partly a function of bias and largely a function of actually different rates in offending.

Posted by: Asher Steinberg | Jul 11, 2016 8:10:44 PM

To Asher and anon at 1:36: if I were teaching a Crim Pro class on police force tomorrow, I'd mention the Fryer study given the recent NYT story about it, and I'd welcome discussion of available empirical evidence on racial bias in policing. Over the longer run, I have my doubts that the Fryer study says very much relevant to the issues raised by Black Lives Matter. Caveat: I've read only the NYT description and not the actual study. According to the NYT, Fryer measured racial bias in police shootings by focusing on police encounters "when lethal force might have been justified," such as arrests for serious crimes like attempting to murder an officer. But BLM is a response largely to killings of unarmed suspects who were stopped for petty offenses. BLM is a complaint about the unjustified use of lethal force. Fryer's study, as described by the NYT, looks for patterns of bias among uses of force most likely to be justified. The NYT column describes a study that seems fairly uninformed about police practices (insofar as it treats resisting arrest charges as an independent variable, for example) and non-responsive to BLM. But I look forward to reading the actual study, which may be more sophisticated.

Posted by: Alice Ristroph | Jul 11, 2016 6:36:21 PM

Stuart Friedman, without commenting on the merits of other arguments, even within a system of anonymous grading, professors often (usually?) give “student participation” grades as a fraction of final grades. This can clearly be abused. It’s one reason I generally don’t give any final-grade credit for “student participation.”

Second, to the extent that it matters—and I doubt it matters much—I would conclude that the professor is likely (though by no means certainly) a woman *only* because of her experience teaching LRW; other allegedly illuminating factors don’t seem to help much, regardless of how “obviously” illuminating they may be for those using particular lenses.

Third, in CrimPro I do discuss excessive force and the racial sub-issues relating to it. Just as I don’t merely focus on test prongs when discussing equal protection in ConLaw, why would I not focus on greater social context when discussing why certain remedies are and are not (or should/not be) available as a response to police abuse? In other words, I see the topic as a good context in which to discuss policy issues for purposes of CrimPro.

Posted by: Edward Cantu | Jul 11, 2016 6:03:41 PM

I think the central narrative of BLM is not just about shootings - also that Fryer's study, as to rates of shootings, is unfortunately only about Houston. Other than that, though, I do agree with the spirit of Anon's comment.

Posted by: Asher Steinberg | Jul 11, 2016 5:07:06 PM

I find the student's choice to write an anonymous letter very problematic. One of the many things law school does is prepare students to practice law. Lawyers do not get to make anonymous complaints on anything more substantial than the feedback form provided by a CLE provider. You cannot anonymously complain that a judge is biased or that opposing counsel is violating discovery rules or that an individual or institution has wronged your client. Lawyering is openly confrontational. The fact that you actually have to sign the letter, take the call, and argue in person is part of how the system works. If you can't handle that starting around the time you got your acceptance letter, you might be going to the wrong professional school.

(He commented anonymously . . . .)

Posted by: Sykes Five | Jul 11, 2016 4:49:20 PM

Alice - would the classroom conversation on Black Lives Matter include discussion of the data in today's New York Times article about a Roland Fryer study that finds no bias toward blacks in police shootings and how that contradicts the central narrative of BLM?

Posted by: Anon | Jul 11, 2016 1:36:41 PM

FWIW, reddit claims a woman professor from Whittier.

Posted by: Anon | Jul 11, 2016 8:11:06 AM

Curious whether Professor Kristina Campbell, Esq., B.A., J.D., has any data to support the proposition that the letter writer was not a white man by virtue of the fact that "there is inherent authority for those law professors that very rarely leads to them being addressed as anything other than 'Professor,' while female faulty members are routinely called 'Ms.' or addressed by their first name."

This empirical claim would be easy to establish by looking at student class evaluations, and I seriously doubt that it's true. I certainly never addressed any of my professors as "Sally" or "Jane," no matter what their race or gender. I do, however, encourage my students to call me by my first name, because unlike the insecure anonymous professor in question, I don't derive my authority from insistence on silly titles or inflammatory T-shirts. I derive it from knowing what the hell I'm talking about, and this is obvious to students.

Posted by: anon | Jul 11, 2016 1:24:54 AM

To answer the curriculum question in the updated post: I typically have a discussion of excessive force in Crim Pro. I don't see Crim Pro as primarily a course about what evidence is admissible, and I don't know any Crim Pro textbook that presents the material that way. Crim Pro is a course about the constitutional constraints on police investigations. Excluding evidence is one way to enforce those constraints, but only one.

I also think it's a mistake to treat excessive force as a separate issue from police authority to make more minor seizures. Almost every killing of an unarmed black man begins with a traffic stop or other "minimally invasive" police encounter and then escalates. Thus, my reaction to the curricular issue is the opposite of yours, Howard. It would seem odd to me to teach Crim Pro and NOT address Black Lives Matter and the issues it raises.

Posted by: Alice Ristroph | Jul 11, 2016 12:43:12 AM

The professor's response suggests that he or she wore the shirt to a Criminal Procedure class on a day when the class was discussing police violence. If that's what happened, then the substantive discussion of the Black Lives Matter movement, and the evaluation of counter-claims such as Blue Lives Matter or All Lives Matter, should have happened in that class. I think the anonymous professor makes many great arguments about Black Lives Matter in her/his letter. If you want to raise those issues with students (which seems to me entirely appropriate), why not have the discussion in the classroom rather than wearing the shirt but not talking about what it means?

Posted by: Alice Ristroph | Jul 10, 2016 4:09:57 PM

My instinct is that the prof is a woman, for many of the reasons Kristina identifies. The first web site that I saw with the letter used both male and female pronouns to describe the professor, obviously erroneously, so I am not sure. For that reason, I have avoided pronouns in talking about this story.

Posted by: Howard Wasserman | Jul 10, 2016 12:06:46 PM

That student letter is rather impressive -- not exactly in a good way.

The reference to "on campus" is particularly troubling. The comments here suggest the professor wore the t-shirt to class. But, "on campus" is open-ended. The idea law professors are not going to share their "personal opinions" on campus is ridiculous. I put this aside from the strident nature of the letter itself. if the problem is "in class," and wearing a Confederate Flag t-shirt or any number of hypos suggest possible push-back there, the students are to be faulted for not making their case that well on a basic point too.

The professor's reply is a tad strident too. I fall in that trap myself at times, so you know, stones/glasshouses. Still, professors do have a higher responsibility there. It is also a tad pedantic and patronizing. But, appreciate the effort taken and makes good points.

I can understand the students -- who sound like aggrieved sorts who have an overblown persecution complex -- wanting to be anonymous. It's ill-advised and perhaps the professor could have discussed the matter in class as a teaching moment. As to the personal characteristics, I'm unsure -- I'd guess the professor is black. The legal writing hint of one comment is interesting. Maybe so. Don't know. But, other than that, I think these days people very well are disrespectful to a range of people, white/black, men/women.

Yes, I'm not sure how being open with their complaints would have put them in any serious danger of backlash and inability to express criticism is not exactly a good thing for a law or "professional school" student. As to civil, the letter is generally civil, but the professor notes the lack of a polite title. Also the caps was a bit rude. And, their tone was heavy-handed. I think it was a tad uncivil in that regard. So, I would forgive the students, but not take them off the hook.

Posted by: Joe | Jul 10, 2016 11:50:05 AM

A lot of people are assuming this professor is a male. I assumed that the professor is female because: a) the professor mentioned not being addressed by their title in the letter from the students; b) the professor mentions having taught legal writing previously and; c) the fact that the students felt entitled to write the letter at all. I would be shocked if this professor is either white or male, because there is inherent authority for those law professors that very rarely leads to them being addressed as anything other than "Professor," while female faulty members are routinely called "Ms." or addressed by their first name. Additionally, the vast majority of legal writing professors are women. So to me, it seems highly unlikely that the professor who wrote the response is a man - but I would be happy to be proven wrong on that score.

I also have to say that I think sending an anonymous complaint about a professor is not behavior that students in a professional school should be encouraged to undertake. As others have mentioned, a student's disagreement with a professor is an opportunity for dialogue, not an occasion to demand silence or capitulation to any particular point of view by either party. As the professor notes in the response, reasonable people disagree all the time and if one hopes to make their career in the law, one needs to learn how to engage in dialogue with those whom one does not agree. In my opinion, the student(s) missed an opportunity to have a discussion with their professor and their classmates about the many issues surrounding not only the BLM movement, but of what our criminal justice system demands in terms of equal protection and due process for everyone. The proper response to speech that is perceived as offensive isn't censorship - it's more speech.

Posted by: Kristina Campbell | Jul 10, 2016 11:22:05 AM

No one one was going to beat him up. His safety was never in any danger. Also, in case you were wondering, people saying mean things about you isn't lynching.

Posted by: John | Jul 10, 2016 10:47:28 AM

This is first year crimlaw. It is anonymous grading in most law schools which is designed to protect the student against the hypothetical retaliation that could occur from a petty professor. Most law school professors that I've met relish a good debate and respect someone who can hold their own. I disagree with "I Killed a Mammoth's" position.

Posted by: Stuart Friedman | Jul 10, 2016 9:35:15 AM

"The student risked everything."

Right. In addition to what you said, there's also the possibility that activists might lodge complaints with the Bar when the student seeks admission to the Bar.

The prof was lucky he didn't wear a T shirt saying "Make America Great Again." If he'd done that there would have been more than an anonymous letter.

Posted by: AYY | Jul 10, 2016 2:38:14 AM

The only salient point the professor made was point #5--and even that one isn't as air tight as some seem to think.

What we have missed here is that the student disagreed and wrote a letter to the prof. The student disagreed with the prof and did so civilly. Who cares if the student's arguments were crap? The first thing that should be said is, "This student displayed a proper way to disagree."

Finally, we've also missed that there is an atmosphere were students who disagree with a certain position feel the need for anonymity. The only reason can be safety, whether the student fears retaliation from the prof or (more likely) his or her peers.

So for the prof who wrote this letter:

Premise #1: You (the student) risk nothing by disagreeing with me and so you should do it in the open.

Critique: The student risked everything. Simply look at the ridicule he or she has taken on this website of intelligentsia. The argument has not been taken seriously. The process of disagreement as a learning experience has not been taken seriously. And we have seen example after example of reputations destroyed because someone holds a social idea which contradicts the majority of peers. If the student's ID was known, his or standing among peers could plummet, putting at risk law review membership and advancement (and, thus, future career), letters of recommendation from faculty, students willing to join him or her in study groups (thus putting at risk grades) and then just general student quality of life from being accepted by peers.

Posted by: YesterdayIKilledAMammoth | Jul 9, 2016 11:04:15 PM

The law prof says that the shirt was worn on a day when the class topic was police brutality against African-Americans, so it was in class.

Posted by: Tung Yin | Jul 9, 2016 10:19:51 PM

Good catch. If the professor was just wearing the shirt around campus and the students objected, a six-page letter was unnecessary. The appropriate response would have been "shut up."

Posted by: Howard Wasserman | Jul 9, 2016 8:15:10 PM

Note the letter says the Professor wore the t-shirt "on campus," which is different than "to class."

Posted by: AP | Jul 9, 2016 7:27:07 PM

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