Shades of Offense

Race is Harvard’s topic du jour. Cornel West’s defection to Princeton, Charles Ogletree’s crusade to win reparations for slavery, and last weekend’s rally supporting diversity are the stuff of debate in dorms and dining halls across campus.

But none of these events reveals more about our attitudes towards racial issues—and the shortcomings of those attitudes—than the controversy that erupted at Harvard Law School (HLS). The story is too complicated to tell in full here, but the heart of the hurrah happened like this.

First-year law student Kiwi A. Camara posted a course outline on a website. In his outline, Camara referred to a case involving restrictive racial covenants by writing, “Nigs buy land w/ no nig covenant; Q: enforceable?” When another student filed a complaint about the post, she received an anonymous e-mail that read, “We are at the Harvard Law School, a free, private community where any member wishing to use the word ‘nigger’ in any form should not be prevented from doing so...I have actually began [sic] using the ‘nigger’ word more often than before the incident.” Shortly thereafter, approximately 80 students found flyers in their mailboxes that contained a swastika, anti-Semitic statements, and the text of the anonymous e-mail. That e-mail was later traced to first-year student Matthias Scholl, who denied knowledge of the flyers’ origin.

Reaction was fierce. An e-mail from HLS administrators called the events “appalling things.” The Black Law Students Association (BLSA) organized a protest and, in a statement published in the Harvard Law Record, demanded that Scholl and Camara be disciplined.

Surely some response was in order. But it is a great shortcoming of this reaction that it failed to differentiate varying degrees of offensiveness. Neither the administration’s e-mail nor BLSA’s statement left room for the possibility that each of the incidents be considered on its own account. Instead they were condemned in the same rhetorical breath.

It is not clear, however, that the events are morally equivalent. While no honest person would question the brazen offensiveness of the flyer, there is room for debate about whether the actions of Camara and Scholl rise to the same level.

First, there is the crucial question of intent. Camara insists his epithet was an unconscious note-taking shorthand. Scholl says he meant his e-mail as a substantive defense of free speech. Now you can, if you like, accuse Camara of harboring a personal bias and Scholl not only of phrasing his argument in a wretchedly insensitive manner but of using a word he knows to be offensive more frequently. But, if they are taken at their word, you cannot say they acted solely and consciously to offend. That more serious accusation is true only of the flyer’s anonymous author.

There is also the matter of how the slurs were used. The flyer used epithets to address its audience. Camara used an epithet to describe a group of people. Scholl used an epithet to refer to the epithet itself. The degree of offensiveness seems to decrease as one moves down the list.

These are just the sorts of distinctions that jurists consider when deciding what kinds of speech should be protected against competing interests (such as, say, the desire to prevent distress caused by hearing racial slurs). It would therefore seem appropriate for law students to question whether the statements were offensive enough to warrant proscription and punishment. That, in turn, requires considering each of the statements individually. But the condemnatory chorus rode roughshod over distinctions between them.

Still more unfortunate was BLSA’s criticism of attempts to hold public debate on these matters as racially insensitive.

Just ask Weld Professor of Law Charles R. Nesson ’60. When Nesson offered to defend Scholl in a mock trial, he encountered objections nearly as vociferous as the initial clamor. BLSA demanded that Nesson be publicly censured and barred from teaching first-year classes, and Nesson agreed to step down from teaching all but the final lecture of his torts class this year.

Nesson’s critics point to the sensitivity of the issues his mock trial would address. But why does it follow from this sensitivity that there must be a moratorium on public reflection? Doesn’t that very sensitivity make public discussion all the more urgent? And given the complexity of the problem, wouldn’t a procedure designed to weigh competing claims and arrive at a deliberated outcome be useful in finding solutions?

Nesson thinks so. “I suggested a mock trial,” he told me, “because a process like that calls for fairly rigorous definition of issue, provides a framework for asking tough questions and following up, and provides a framework for deliberating what emerges.”

But anger over Nesson’s proposal makes one wonder whether objective discourse is possible at all when race is concerned. BLSA’s demand that Nesson be censured simply for wanting to ask whether Scholl deserves punishment implies that race-related disputes should be resolved by suppressing debate and unreflectively condemning anyone involved in the controversy.

It is eyebrow-raising that HLS administrators seem willing to acquiesce to these demands. According to last week’s Harvard Law Record, Scholl was referred to the administrative board. (“We have a policy that e-mails should not be anonymous,” says HLS Dean Robert Clark—as though what Scholl wrote had nothing to do with it!) And although Nesson says his decision to step down—which he made in discussions with Dean of the J.D. Program Todd Rakoff ’67—had “a collaborative character,” he questions the administration’s willingness to support him. “At this point, I have to say I’m a little bit in doubt. I trust Todd, but I haven’t received a supportive call from my dean,” he said.

Nobody is asking HLS to turn a blind eye on racial concerns. Nobody is claiming that BLSA was wrong to air its grievances. But these matters are not a stark opposition of black and white. Offense comes in many shades. We would do well to spend less time taking offense and more time trying to understand just why we are offended.

Jason L. Steorts ’01-’03 is a philosophy concentrator in Dunster House. His column appears on alternate Fridays.