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?
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.