Even when you are emotionally invested

Here’s an interesting issue.

From the context where I found it, I gather it’s one of those right-wing moral panics about creeping PC run amok creepingly amidst us, but setting that aside, it’s still an interesting issue. The issue is something like: can an exam question about a very fraught current event or series of events be so emotionally loaded that it either shouldn’t be on the exam or should have a trigger warning?

Eugene Volokh writes it up for the Washington Post.

Several readers have asked me about the controversy at UCLA Law School related to this exam question in a First Amendment Law class:

Question I (35 minutes)

CNN News reported: On Nov. 24, St. Louis County prosecuting attorney Robert McCulloch announced in a publicized press conference that Police Officer Darren Wilson (who has since resigned) would not be indicted in the August 9 shooting of Michael Brown. Michael Brown’s stepfather, Louis Head, was with hundreds of protesters assembled outside the police station, listening on loudspeakers and car radios when they learned Officer Wilson was not being charged. Standing on the hood of a car, Mr. Head embraced Michael Brown’s mother. Mr. Head asked someone for a bullhorn but it was not passed to him. He turned to the crowd, stomped on the hood and shouted, repeatedly, “Burn this bitch down!”

Police Chief Tom Jackson told Fox “News,” “We are pursuing those comments … We can’t let Ferguson and the community die [as a result of the riots and fires following McCulloch’s announcement]. Everyone who is responsible for taking away people’s property, their livelihoods, their jobs, their businesses — every single one of them needs to be prosecuted to the fullest extent of the law.”

County Attorney Robert McCulloch asks lawyers in his office whether to seek an indictment against Head by relying on a statute forbidding breach of the peace and another prohibiting rioting (six or more persons assembling to violate laws with violence). A recent hire in the office, you are asked to write a memo discussing the relevant 1st Amendment issues in such a prosecution. Write the memo.

My colleague Prof. Robert Goldstein had this question on his exam; some students complained, and he decided to partly withdraw it: He didn’t count it for students who got a lower score on it than on the other questions, and this didn’t affect the grades of students who got a higher score on the question, because the class was too small to be graded on a curve.

My first thought, before reading Volokh’s commentary, was that that and other things like it are exactly the kind of thing many lawyers have to think about every day. It goes with the job. Adding trigger warnings would seem kind of like adding trigger warnings to exam questions about ooky things like blood and infections in med school. What would be the point? If crucial parts of the job squick you out, then that’s not the right job for you.

Volokh, after commenting on more practical aspects, confirms what I was thinking:

To be sure, some people might be deeply emotionally invested in an issue, and have a hard time viewing it from both sides. But a key part of a law school education is to learn how to do this, even when you are emotionally invested. If you want to work for, say, the NAACP (or the NRA), you will do your clients no favors by being so zealous in your opinions that you fail to grasp the best arguments on the other side.

And that is also true when the matter is still raw in your mind. Often you have to make arguments just days after some traumatic event (here the exam was two weeks after). Indeed, often you have to make arguments just days after a traumatic event that involves you much more directly than the Ferguson incident involved UCLA students — for instance, what you see as a racist verdict that will send your innocent client to prison, or an appellate decision that you think unjustly rejects an argument that you’ve spent years developing. 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.

It doesn’t do to lose your temper or burst out sobbing in the courtroom if you’re one of the lawyers. You have to train yourself (or let yourself be trained by others) not to react to triggers. That’s part of many jobs.

This can end up being a source of tension or estrangement between the two kinds of people. The ones who have learned how to tamp down their emotions can overlearn it and become tamped down in all contexts instead of only the job one. Even those who don’t can seem cold and bot-like to the rest of us. It’s a little bit tragic, really.


  1. Blanche Quizno says

    The larger problem is the situation in which this question is being asked – on a test, to be graded by an instructor whose own personal leanings may or may not be known, and the degree to which his leanings color his judgment may also be not known. How is the savvy student to answer? SS wants a good grade, and thus will respond in the way the professor has made clear is the correct way to answer. But in such an example, fraught with racial tension, what if the students perceive a racist bias in their professor? Do they then tailor their response in a white-supremacist direction for the sake of not sacrificing their GPAs??

    Such a question is suitable for lecture and in-class discussion, not for testing. It is too problematic to be placed on a test.

    This strikes me as similar to that Emerson T. McMullen, the Georgia Southern University associate professor of history, whose history of science and other science-related classes included extra-credit assignments to watch Christian movies such as “God is not dead” and to read the associate professor’s own paper, “No Evidence for Evolution: Scientists’ Research and Darwinism”, and then provide appropriate write-ups. Student reviews pointed out that it’s obvious the associate professor’s selections are designed to convert the students, so even if the associate professor gives full extra credit regardless of the content of the write-ups, he’s accomplishing his goal of essentially forcing the students to sit through a sermon. For Jesus.

    Or Aquinette Jones, a biology teacher at public Grady High School in Atlanta, Georgia, who was outspoken – in class – about her creationist beliefs AND who refused to teach evolution. How would any intelligent student be expected to answer pretty much any test question Ms. Jones would put together, and what would Ms. Jones’ agenda on formulating such questions actually be, one must wonder.

  2. says

    I don’t think it makes sense to say a subject is “too problematic to be placed on a test” when it’s exactly the kind of thing the student needs to know how to address. Again, it’s like saying questions about blood are “too problematic to be placed on a test” in med school.

  3. triamacleod says

    I don’t honestly think the professor’s views on racial/ethnic/politics would really enter into this particular equation. It is a matter of law and how clever you can be in turning it to your advantage. You need to give both a prosecutor and defense position for the same actions, positions that are based only on law not personal opinions.

    As for those teachers you referenced, they should be fired and censured and the students have routes to take to hold them accountable for their actions. For the Georgia public teacher that includes Federal court. Past students have commented on articles about her stating that she has been an outright bully even before her creationist manifesto and several of them have wondered if there isn’t something chemically wrong with her.

  4. quixote says

    Of course it’s an appropriate exam question for student lawyers, for exactly the reasons you say, Ophelia. Complaining about it is exactly like a medical student unable to deal with questions about vomit, to say nothing of the real thing.

    Not knowing the prof’s position is no excuse either. It’s a law school. It’s a question of law. If you’ve studied the relevant law, you ought to be able to say which parts apply. That doesn’t depend on your feelings about what happened.

  5. guest says

    I’d be concerned about this in an evaluative/competitive situation such as an exam not because students should be able to cope with these issues as part of their future careers but because questions like this might have an unfairly differential effect on students based on their backgrounds, demographic/social position, etc. Let’s say, for example, a law exam included a question on adoption law. And let’s say one of the students taking the exam had had a personal trauma associated with adoption–had to give up a child, was unable to adopt, whatever. This particular student will be at a disadvantage with respect to other students answering the question because in addition to answering it she/he will be suddenly dealing with intense personal emotions, and the test will therefore not do what it’s designed to do–objectively measure/evaluate/compare each student’s mastery of the course content. In order for an exam to fulfil this function as ‘cleanly’ as possible you want to try to write questions as free from anything extraneous that might irrelevantly advantage or disadvantage any specific student as you possibly can.

  6. says

    These budding lawyers are going to have a rude awakening when they ask their first judge for a 5 year continuance so they can submit their case when the dust has settled.

  7. theobromine says


    Law is about things (often nasty things) that happen to real people. How can you expect a prof to set an exam if s/he needs to be considerate of the potential of triggering “immense personal emotions” for every question and every student? These law students are not little kids, they are adults in tertiary education, who will presumably soon be taking on positions in the real world where they have no protection from being inadvertently triggered.

  8. anbheal says

    @6 anthrosciguy — no worries, mate, they’ll just give the judge that good ole American Enterprise Institute secret handshake, and the decision will go their way.

  9. carlie says

    Yes, they have to be able to deal with these things, but…

    This is a subject that was necessarily going to affect some of the students more than others. It’s not fair to those students to throw an emotional bomb question at them but not have other questions on the test that threw the same kind of bomb at the other students.

  10. guest says

    ‘These law students are not little kids, they are adults in tertiary education, who will presumably soon be taking on positions in the real world where they have no protection from being inadvertently triggered.’

    Yep. But in the real world they won’t be directly competing with their peers in a staged event designed to objectively and quantitatively measure the quality of their work.

  11. Kevin Kehres says

    Law school is about learning how to use the known laws and precedents to argue a position. So, it’s fair to say that no matter what “side” the student came down on, as long as they used the appropriate laws and precedents to argue their case, their grade would be the same.

    Not demonstrating that you know the laws and precedents would be cause for getting a poorer grade — not choosing a side “opposite” of that of your teacher. Because law school is about educating both plaintiffs (prosecutors) and defenders. And I think it would be a rare legal career that didn’t have a good mixture of both.

  12. Brisvegan says

    What guest and carlie said.

    I am a law lecturer. Many of my students will go on to practice law. However, legal practice is enormously variable. Some will work in criminal law, dealing with the worst of offenders, some in family law, with distressing family breakdowns and some will work in areas like leasing or commercial transactions, which don’t require them to deal with the more traumatic sides of human experience. Each student must still study core curriculum that includes cases with very nasty facts. However, some very able students and lawyers will create a professional life that lets them avoid areas of practice that they personally can’t cope with.

    I teach in an area where a bunch of cases on evidence law include details of sexual assaults. However, do I put sexual assault facts on exams? No. I can test the same knowledge without triggering sexual assault survivors by detailing assaults.

    I don’t see why this question would be on an exam. It clearly signals to some students that their concerns over Michael Brown’s human rights and their compassion for his family are merely matter for intellectual games, not serious life altering, frightening events that signal a lack of safety for people of colour. It also depicts his supporters as violent, in a way which would reinforce the prejudices of those who argue that black lives matter less.

    I would not set this question, because it could distress a bunch of my students, unnecessarily. Upset people don’t process information as well as calm people. The group most likely to be upset are people of colour. Thus, this question rigs the exam against people of colour. The same knowledge could easily be tested using a completely different question. So, I would use a less racially charged, distressing question.

    As to lawyers having to confront distressing issues in court: Many do. Many don’t. Those who do often don’t have only limited exam pressured time to come up with an answer. Even if they have limited time, the situation and outcome would be very different. They would often have time, professional experience and professional support to help process and deal with difficult issues before during or after distressing events. They would be able to make a direct difference via their acts and client representation. The difference is like that between having vile taunts flung at you and working to expose or reduce vile taunts. The words and person might be the same, but the sense of power and ability to cope are different. A great student might be knocked off balance by suddenly being confronted with this question in an exam, but may still go on to be an amazing human rights lawyer.

  13. theobromine says

    @guest and @brisvegan: I consider myself convinced and enlightened, thanks for the insight. (My own university education was in engineering, with little risk of such challenging questions.)


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