A classroom divided: how the debate over racial slurs and academic freedom splintered the law school

by Matthew Chupack & Madi Olivier

Dec. 1, 2021 | News

On a cloudy late-September afternoon, throngs of Emory Law School students departed their classes and rushed Bacardi Plaza to engage in a walk-out protest.   

As the swarm of students overflowed the plaza’s ground-level capacity, many had to stand on the stairs and the overlooking bridge. Tables that normally dotted the plaza were moved aside to accommodate the swath of over 100 law students, administrators, including Law School Dean Mary Anne Bobinski, and faculty who were supposed to be teaching classes at the time.  

“It was way, way more crowded than any event that I’d ever observed at Bacardi Plaza,” said Ariana Ortiz (22L), president of the Latin American Law Student Association. “I went inside to facilitate the walking out, to help guide students out, and it was the vast majority of students who were walking out of class in solidarity with the protest.” 

The uproar was a response to Associate Professor of Law Alexander Volokh’s use of a homophobic slur in a lecture earlier that month—the most recent in the school’s history of slur usage by professors in the classroom. Volokh was teaching his torts class at the time of the walk-out. 

Several law students who spoke with the Wheel confirmed that Volokh used the F-slur without warning on Sept. 2 while discussing Snyder v. Phelps, a case involving the Westboro Baptist Church. One of these students, who identifies as bisexual, was in the class when Volokh used the slur.   

“[Volokh] decided that he wanted to refer to the Westboro Baptist Church by their ideology and not by their name, so he says, ‘The God hates F-slur church. Those guys,’” the student said.  

The student, who requested to remain anonymous because Volokh is still his professor, said hearing that language in school was upsetting and irresponsible. “I got sick to my stomach,” the student said. “I’ve done school for a long time. Before I came here, [using slurs] has never been necessary.”  

Volokh, who chairs the University Senate’s Open Expression Committee, told the Wheel in a statement that he had a pedagogical purpose for using the slur. He wanted to prepare them to discuss slurs with “clinical detachment” while working on court cases in the future.   

Expurgating downplays the offensiveness of the term,” Volokh wrote in an email. “I think it’s appropriate to get the full force of the term in a case where the offensiveness is relevant to the legal principles being covered.”   

Volokh’s use of the derogatory term divided the law school and reignited a debate over slurs and academic freedom in the classroom.   

Many students and professors were outraged by this incident and other episodes of law professors using slurs in the classroom. Students who organized the walk-out protest created flyers asking the community “stand in solidarity with [their] Black and LGBTQ+ communities” and “against the use of slurs in our classrooms.” Others created a petition to change the University’s Open Expression policy.   

Black Law Students Association President Annia Rochester (22L) said that seeing so many people at the walk-out was uplifting, noting that it was “helpful that there are some people who are willing to kind of stand with us and support us.”  

Law students from different identity groups spoke during the walk-out. Professor of Law George Shepherd, who also spoke during the walk-out, told the Wheel he felt the protest had a feeling of “great anger” at both Volokh for using the slur and at the law school administration, which did not discipline him.  

“There’s no excuse for a faculty member to use such a slur,” Shepherd said. “There’s always some other pedagogical means to get across the same message.  

But others defended Volokh. They argued that he and other professors should have the freedom to use slurs when they have an academic purpose. At the same time as the walk-out, some students decided to engage in a “walk-in” counter protest where they sat in Volokh’s class while he taught.  

One of those students was Carlton Powers (23L), who said he admires Volokh and wanted to support his former professor. “I felt like he needs to know some people stand by him for one reason or another,” Powers said. “He’s not alone.”  

When Volokh concluded class and left the room, many students remained seated. The walk-in counter protest wasn’t as organized — Powers didn’t even know about it until the day before — so they didn’t plan speakers. But Powers stood up and took the podium at the front of the room.  

“I said what I have also said online, publicly, that I thought he was a good teacher and a good person,” Powers said. “I personally felt that it was OK for him to say what he said in the context in which he said that.”  

History repeating  

This wasn’t the first time an Emory law professor’s use of a slur has caused turmoil at the school. Since fall 2018, at least four different law professors have received backlash for having admitted to saying or having allegedly said the N-word in an academic setting.    

The most recent of these incidents came three days into the semester, when Bobinski, the school’s dean, wrote in an Aug. 18 message to students that a professor used the N-word in a class. Bobinski said the professor was referencing a previous incident where a law professor used that slur. The professor apologized to his students in the following class, according to Bobinski.  

“The University does not ban the use of particular words or the expression of controversial ideas,” Bobinski stated in a letter to students a week after her first message. “However, a faculty member’s use of racially-charged, derogatory language — such as the explicit ‘n-word’ — with students, without a clear pedagogical objective, is highly inappropriate and is not protected.”   

The professor is no longer teaching this semester, Bobinski wrote. The University declined to identify the professor when asked by the Wheel.   

Rochester said it was “jarring” when she first heard about a professor using the N-word in her first week at the law school. But after hearing this has occurred several times in recent years, Rochester just felt disappointed.    

“You just feel tired because it’s the same thing over and over again, and somehow it always manages to be frequently within the first week of class,” Rochester said. “Friends and I joke that it’s like a ritual at this point, that it just keeps on happening.”  

Rochester, who also spoke at the walk-out, met with Bobinski a week after the professor used the N-word this semester to discuss how she thought the law school should respond. Rochester’s main requests were to listen to student opinions on the matter.  

“Something I would have liked to see and I have requested but didn’t happen, is for the dean to hold a town hall just to discuss how students from that community are feeling,” Rochester said, “and how they are taking concrete steps to make sure these things don’t happen.”  

Assistant Vice President of Communications and Marketing Laura Diamond told the Wheel that Bobinski was unavailable for an interview.   

Before this semester, the last time a professor’s use of the N-word in class sparked controversy was fall 2019, when two adjunct law professors were accused of using the slur in their respective classes.   

“They don’t recognize the humanity of certain groups of people, and they hide behind so-called principles like, ‘Oh, freedom of speech,’ [because] it’s also the kind of thing that we study, that we practice in our profession,” Ansari said. 

The incidents motivated former Black Law Students Association President Enuamaka Mkparu (20L) and former Student Bar Association President Amneh Minkara (20L) to write a letter to the student body describing the incidents and asking that the professors apologize.   

Although the University declined to identify the professors, one of them, Adjunct Professor Robert Saunooke, told the Wheel that he was one of the professors who used the slur while teaching a Federal Indian Law class.   

Saunooke, who is a citizen of the Eastern Band of Cherokee Indians and the president of the National Native American Bar Association, said he was attempting to describe racist terms used against Native Americans which, he said, include “sand N-word” and “red N-word.”  

Saunooke said he apologized immediately after using slur in the class. He later met with Mkparu and Minkara to apologize.    

But perhaps the most well-known incident of a law professor using the N-word in class came in fall 2018, when Law Professor Paul J. Zwier II used the N-word during a torts lecture. He was discussing Fisher v. Carrousel Motor Hotel, Inc., a case that involved racial discrimination against a Black customer.   

In an Aug. 17, 2018 letter to faculty addressing the incident, Zwier admitted to saying the N-word when he called on a Black female student and asked whether the Black customer in the case had been called the N-word by an employee. The case documents showed that the Black customer had been called a “Negro” by the employee. Zwier apologized the next morning and said he should not have used the slur.  

 Zwier was placed under investigation by the Office of Equity and Inclusion shortly after the incident. He was barred from teaching mandatory first-year classes for two years and was required to participate in sensitivity and unconscious bias training, but was allowed to resume working after the three week investigation.   

However, in November 2018, Zwier allegedly repeated the N-word during office hours with a Black law student and was placed on paid administrative leave. He would later face potential termination.   

Zwier’s second alleged use of the slur, and his subsequent punishment, gained national attention.   

On Jan. 19, 2019, the Foundation for Individual Rights in Education (FIRE), a nonprofit organization dedicated to protecting free speech at universities, sent a letter to interim Law Dean James Hughes in response to the University’s suspension of Zwier. It was written by Adam Steinbaugh, FIRE’s individual rights defense program director, who argued that Zwier’s use of the N-word should be protected under academic freedom and denounced his penalization.   

“The decision of what material to discuss and how to discuss it and how to approach America’s thorny and painful legacy of racism is a decision that needs to be left to the faculty member who is in the classroom,” Steinbaugh told the Wheel, “not the administrator who was outside of it.”    

Zwier was ultimately reinstated in March 2020 by the Faculty Hearing Committee, which handles cases that may result in the termination of tenured faculty members. On Aug. 6, 2020, Zwier filed a lawsuit against Emory University and Hughes for “unlawful race-based discrimination and retaliation in employment.”  

The University and Hughes submitted a stipulation of dismissal with prejudice on June 15, 2021. The case was officially terminated the next day.     

Most recent student demands  

For many LGBTQ+ law students, Volokh’s use of a homophobic slur felt unecessary and offensive. Some are demanding that he face consequences.  

In addition to the walk-out protest, a group of law student leaders composed a list of demands for the University and law school and released a petition open to all University students.  

One demand implores the University to “remove any professors who use slurs in class from their Open Expression Committee,” which would affect Volokh, who chairs the committee. Another demand asks the law school to incorporate critical race theory in the legal curriculum and hire more professors of color.  

Ortiz, the president of the Latin American Law Student Association, noted these demands are “not new” and stem from past demands made by Black law students years ago.  

Carson Cook (23L), the director of outreach for the school’s LGBTQ+ student group OUTLaw, said the administration failed to adequately respond to Volokh’s use of the slur. 

According to Chief Marketing Officer at Emory Law Susan Clark, OUTLaw met with Bobinski on Sept. 21 at 11 a.m., a few hours before the protest.  

The OUTLaw executive board met with Bobinski to express their concerns about the administration’s lack of communication with the school following the comments. 

“We wanted to get across …  how the silence from the administration had really hurt the community,” Cook said. “How it had emboldened homophobic classmates to say sort of hurtful, bullying things to the community.”  

However, Cook said that the administration was “deflective” of their requests to change the University-wide academic freedom policy.  

“Moving forward, I would like to see a policy of no slur words being said aloud in class, or at the minimum, that you have to give a warning before you talk about cases involving slur words,” Cook said. 

Shabib Ansari (23L), the secretary of OUTLaw, said he was not surprised when he heard that Volokh used the homophobic slur because he believes the legal profession is often discriminatory.   

“They don’t recognize the humanity of certain groups of people, and they hide behind so-called principles like, ‘Oh, freedom of speech,’ [because] it’s also the kind of thing that we study, that we practice in our profession,” Ansari said.   

He said he sometimes feels uncomfortable as a minority student in the school, but others may have worse experiences. “As a queer person of color, especially recently, it’s just very awkward at minimum,” he said. “At worst, you feel inherently unsafe.”  

Shepherd, the law professor who spoke at the walk-out protest, also organized a statement with other faculty members that condemned slur usage and offered support to those affected. Signatories were kept anonymous to protect the identity of those who chose not to sign the statement, Shepherd said.   

The law school’s communications department emailed the statement to law students before the walk-out. It was also published by Above the Law. 

“We promise that, in our choice of words, we will practice empathy and respect,” the statement read. “Gratuitous invocation of hateful words in the classroom not only debases the students in the class who hear them, but indirectly debases the entire law school community … The words tear the fabric of respect that should protect us all.” 

Volokh’s defense 

Volokh, who provided the Wheel with a lengthy statement about his decision to use the homophobic slur, argued that saying the full word in a classroom setting helps prepare law students for when they encounter slurs in their legal careers.  

According to Volokh, the full homophobic slur was used in lawyers’ briefs and arguments and judges’ opinions, as well as said aloud when the cases’ opinion was announced.

“Of course, we shouldn’t call people by offensive slurs,” Volokh said. “But we should teach our students to discuss the use of the word with clinical detachment, because we need to socialize our students into the norms of the profession.”  

Emory does not ban the use of certain words or phrases when they serve a pedagogical purpose, according to the University’s Equal Opportunity and Discriminatory Harassment Policy 

“Emory recognizes the centrality of academic freedom and the University’s determination to protect the full and frank discussion of ideas,” the policy reads. “Thus, discriminatory harassment does not refer to the use of materials for scholarly purposes appropriate to the academic context.”  

Volokh has not received a punishment from the law school. According to Clark, he is expected to teach one courses in spring 2022. “Although deeply and understandably upsetting to many in our community, this incident has not been found to be a violation of university policies,” Bobinski stated in a Sept. 17 message to law students.  

The day before the walk-out protest, then-SBA President Teddy Randel (22L) sent an email to the student body outlining plans for a “walk-in” counter protest aimed at supporting free speech, a culture of open discourse and engaging with others with “charity and understanding.” However, Randel did not plan or endorse the counter protest.  

One student in Volokh’s class, who wished to remain anonymous out of fear of backlash, said he was not offended by the use of the slur and helped organize the walk-in counter protest. The student said many of his classmates who identify as LGBTQ+ or consider themselves allies spoke overarchingly for the community as a whole.  

“If [taking offense] is true for you, you have every right to say it, but to a certain point, you’re speaking on my behalf,” the student said. “So I felt the need to raise my hand and say, ‘I don’t agree. I wasn’t offended by it. I didn’t think you were trying to target anyone or be hurtful. It was relevant to the class material.’”  

But both the student and Powers, one of the other students who supported Volokh at the walk-in, said that defending what they saw as academic freedom was isolating. Powers said he had to leave a class GroupMe and Facebook page because of angry messages he received after sending a statement in support of Volokh.   

Looking Ahead  

There is, however, an Emory law professor who uses a slur in the classroom without sparking a campus-wide controversy. 

Each spring, Assistant Professor of Practice Kamina Pinder, who is Black, says the N-word in class while reading aloud “Letter from Birmingham Jail” by Martin Luther King, Jr.   

But unlike Volokh, Zwier or the other professors who have received condemnation, she gives the text to students in advance, provides warning that she will use the word and explains why she chooses to do so. Pinder also provides students the opportunity to leave the classroom if they don’t feel comfortable hearing the slur, which she said no student has ever done.   

Pinder explained that speaking the N-word out loud contributed to the emotional power of the letter.   

“I want my students to hear this pain; I want them to recognize the hurt,” Pinder said. “I choke up everytime I read the passage because it’s that sense of inferiority, that circumstances, inequities, racism, how they impact Black people psychologically from a very young age.”  

However, given that there have been multiple incidents over the past few years of students feeling harm after professors used the N-word, Pinder said she considered not using it this year. She wonders, now, if using the slur can provide the same value even when she warns students and gives appropriate context and safeguards for them.   

“The way that I use that word is very different from the context in which some of my colleagues have used slurs, so, there’s a part of me that says they’re not in the same bucket,” Pinder said. “I don’t want what they’ve done to impact what I do in my classroom. I don’t want to give them that power.”   

There is a difference, Pinder said, between a professor using a term gratuitously and “without thought or regard for how it may land” and taking time to genuinely consider the term and the subsequent discussion with students.   

She recognized, however, that the race of the person saying a racially derogatory slur can be an important factor for students in the class. “I would defend my colleagues to the very end if a white colleague did exactly what I’m doing,” Pinder said. “But, I do recognize that if I were a white person doing the same thing that my students might receive it differently and I may have to adjust accordingly.”  

Pinder, along with other faculty and students, is left looking to the future for the University’s response, which she hopes will foster a “cultural shift.”  

On Sept. 13, Emory Law School faculty approved annual mandatory diversity, equity and inclusion (DEI) programming for all faculty members to ensure their pedagogical decisions are informed by research. The training will also detail the impact derogatory language has on student learning.      

Chief Diversity Officer at the law school Derrick Howard could not be interviewed because he is on leave for the rest of the year, but told the Wheel in a statement that he “[does not] encourage anyone to use such language.”  

Associate Professor of Practice Robert Parrish was named the interim chief diversity officer on Nov. 16. He was previously a member of the law school’s DEI committee. 

“My own view of the use of slurs within the classroom space is that they should be avoided given the disruption such expressions create within the classroom itself and the discomfort it creates for students, other faculty members, and staff,” Parrish said in a statement to the Wheel.

However, Parrish said he recognizes that many other faculty members do not share the same perspective, and he would be “resistant to any suggestion or attempts to constrain” the rights protected under the open expression and academic freedom policies.  

For Pinder, maintaining academic freedom and sensitivity towards students is not mutually exclusive. She believes the polarizing fight between those who advocate for or against the use of slurs in the classroom fails to address a more foundational issue.   

“I don’t think that we should have to have a rule in place that restricts,” Pinder said. “We should have a culture in place that makes us thoughtful.”   

Update (12/8/2021 at 3:20 p.m.): A statement was added indicating that Randel did not plan or endorse the counter protest. 

Update (12/8/2021 at 3:26 p.m.): A previous version of the article stated that Volokh would be teaching six courses in spring 2022 according to Course Atlas. The article is updated to reflect that according to Emory Law’s spring course schedule, Volokh is only teaching one course in spring 2022. 

Update (12/8/2021 at 3:46 p.m.): A previous version of the article stated that Bobinski met with OUTLaw after the walk-out. In fact, Bobinski met with OUTLaw the morning of the protest.