The “sensitivity” of law students is getting a lot of press these days. Scott Greenfield wrote about it over at Simple Justice. Then Above the Law picked it up. I had my little post two days ago. And then today, Conor Friedersdorf offered this lengthy examination in The Atlantic.
Friedersdorf’s column does a nice job of making a couple of distinctions, which I’d like to expand on a bit. First, he acknowledges the possibility of rejecting a student complaint without unnecessarily disparaging the student. Here’s what he says:
But if a student told me, “I’m too emotionally upset about police brutality/abortion/Wall Street malfeasance/the war/torture/the new gun law to take this exam now, or to answer an exam question on this subject,” my response would be, Look, forget about when you’re going to take this exam–you and I need a plan to help you to develop the ability to excel at analysis, written expression, and oral argument even when you’re as upset or outraged or emotionally drained as you’ve ever felt, because that is a skill-set this profession demands, and attaining it is going to empower you to succeed after graduation.
Reasonable people can disagree with where Friedersdorf draws the line here. Professors are always going to disagree about what to teach, how to teach it, what exceptions to make, etc. But regardless, Friedersdorf’s response is an example of where I part ways with Scott Greenfield’s “Just Say No!” approach to legal education. Instead of dismissing the student’s request as weakness, silliness, or “special snowflake”-ness deserving of a “smack” and derision, Friedersdorf properly views the request as an invitation to work with the student to improve the student’s abilities as a lawyer–to prepare the student for the practice of law. And he extends that helping hand even if on the merits he might think the student’s request is, in some way, silly.
Second, Friedersdorf discusses both how professors should think about presenting their material (i.e., what topics to include), and how professors should respond to individual student complaints or feedback about that presentation. On this point, however, I think a bit more could be said. Generally, Friedersdorf rejects “activist” professors who “implicitly equate respect and best practices with maximum sensitivity” because:
[non-activist] [p]rofessors who are seeing the real world consequences of such activism are in essence countering that faculty have a different notion of how best to serve and respect their students. As they see it, they best respect aspiring lawyers by opening their offices to individuals with special needs or requests, but otherwise presuming that every student is capable of rigorously analyzing any subject, or at least keen on being challenged to do so, knowing that it’s a vital skill to acquire. These professors are properly averse to presuming that all female students or black students or religious Christians are too sensitive for certain subjects. And they don’t appreciate it when what they regard as respecting the individuality and educational needs of their students is portrayed by activists as callously mistreating them.
(I added that emphasis because I think it is a critical caveat, which relates back to the first point on respectful response. More on that in a moment.)
On the presentation side, Friedersdorf recommends that professors take care to ensure that “a law school’s lectures and exams shouldn’t disproportionately test the emotional mettle of a single group, subjecting them to a curriculum that is more difficult,” while at the same time avoiding “racist and sexist assumptions that [certain people are] less rational or more easily upset.” He says: “I’m uncomfortable assuming that all black students would feel a certain way about a Ferguson exam question, or that no white students would be as emotionally invested in the protests.”
Moreover, Friedersdorf thinks law schools would be better off if:
everyone understood and acknowledged that professors are obligated to help all their students to excel as thinkers, writers, and speakers, especially on subjects that cause them to feel upset–and that many bygone victims of violent crimes find that the hard experience of dispassionately analyzing the law ultimately leaves them feeling empowered.
Let’s just assume all that is true for a moment. Even so, that generalized thinking goes into the presentation of a professor’s material. It goes out the window when a professor is faced with an actual response from a student (or group of students) who, for whatever reason, does feel a certain way about an exam question or lecture or whatever. Given such a response, a professor need not make an adjustment or throw out the question in every case. But the professor should at least approach the issue with some humility.
Maybe, despite the professor’s best efforts in presentation, he got the balance wrong for this one student. Or maybe not. Maybe this is a situation where, when the student comes to the professor’s office after the exam, the professor needs to tell him (to quote Professor Volokh): “As a lawyer, you need to master your emotions enough to deal with such situations. As a student, you have to learn how to do that.” Or maybe not. But the fact that the professor tried his best to structure the exam (or the lecture, or the discussion, or whatever) on the front end is no excuse to not take seriously a complaint on the back end. That doesn’t mean the student is going to get what he wants; it just means that the professor should have a little empathy and try to turn the situation into something that will benefit the student going forward.
Given the emphasized line above about “individuals with special needs or requests,” I’m not sure that Friedersdorf would disagree with the prior two paragraphs. Because imagine the following situation: In preparing for lecture, a professor carefully considers the lesson plan and concludes (as Friedersdorf writes) “that many bygone victims of violent crimes find that the hard experience of dispassionately analyzing the law ultimately leaves them feeling empowered.” Confident in that conclusion, the professor cold-calls on a student with a number of Socratic-themed questions about intimate-partner violence. During the second half of the class the professor gives a short quiz on that and other topics. Unbeknownst to the professor, however, the student he called on witnessed his father kill his mother when he was a child. The in-class Q&A caused this student a good amount of distress, which might have contributed to a lower grade on the in-class quiz.
The student comes to the professor’s office hours and raises this issue with the professor. How should the professor respond? Here is where the presentation vs. response distinction comes to the fore. Even if the professor’s presentation was based on the best of intentions, it seems to have missed the mark for this student. I hope the professor would not respond with something along the lines of: “No, no, no, you don’t get it at all. See, you were supposed to be empowered by that Q&A. What’s wrong with you that you didn’t find that empowering? Other people in your situation certainly do! You’ll never make it as a lawyer with that attitude!” Rather, I hope the professor would have the same sort of empathy Friedersdorf displayed in responding to the student in his earlier example.
And this is where “trigger warnings” come in. Friedersdorf’s reliance on “individual exceptions” to a generalized curriculum depends on those individuals actually coming to the professor’s office to ask for special dispensations. That can be an extremely intimidating experience for a student, especially if the professor has projected an attitude where such requests for accommodation are seen as weakness or as a sign that the student won’t be a good lawyer. But Friedersdorf’s exception for “individuals with special needs or requests” simply won’t work unless those individuals actually come to the professor’s office with their special requests.
Far from something to be mocked or derided, trigger warnings (or whatever you want to call them) are extremely helpful in this regard. The professor doesn’t even need to use the term “trigger warning,” since it is so loaded at this point. Rather, something like this should suffice:
In this class we’re going to be talking about crimes, sometimes violent crimes. In a class of this size it would be foolish of me to think that nobody here has personal experiences with any of the topics we’ll be discussing. I’ve done my best to outline on the syllabus what we’ll be discussing when, so you know what’s coming. And if a specific topic is particularly difficult for you personally, please feel free to come talk to me in my office.
I do something similar with my 1L class, since we spend most of the quarter reading and discussing cases where family members witness the horrific deaths of their loved ones. You can imagine that would be difficult for some students.
But in any event, it seems to me that Friedersdorf should be applauding these sorts of “trigger warnings” since they (1) allow for the individualized treatment called for by his preferred policy, and (2) allow the professor, following the “warning,” to plow ahead with whatever difficult topic the professor wants to cover. Seems like a win-win to me.