Law professor criticized after reading racial slur in class
Professor is former judge, current co-chair of Facebook Oversight Board
Stanford Law School (Photo: Stanford Daily File Photo)
By Erin Woo on May 30, 2020
A Stanford Law School (SLS) professor is facing criticism from numerous student groups and instructors after saying the N-word in a class while quoting from historical source material.
Michael McConnell — a former judge for the United States Court of Appeals for the Tenth Circuit — used the word in his "Creation of the Constitution" class on Wednesday in a quote allegedly from Patrick Henry, who was arguing against the ratification of the Constitution at the Virginia Ratifying Convention.
The incident occurred just weeks after McConnell, who is white, was named a co-chair of Facebook's Oversight Board, an independent oversight body with final say over complicated content moderation decisions — including decisions regarding hate speech and misinformation — on Facebook and Instagram. It also comes amid fallout after an assistant art history professor used the N-word during lecture in late April and in a class discussion post in early May.
Swift criticism and condemnation of McConnell's actions ensued on Friday after the Black Law Students Association (BLSA) sent an open letter to the SLS community, blasting McConnell's reasoning that history shouldn't be "stripped of its ugliness."
"If there is one thing black students know, it's our own history," the association wrote. "Ahmaud Arbery is our history. Breonna Taylor is our history. George Floyd is our history. White men refusing to stop saying [the N-word] is our history."
On Friday night, McConnell sent an email to the SLS community, writing that he "make[s] it a priority in [his] class to emphasize issues of racism and slavery in the formation of the Constitution, and directly quote many statements by supporters and opponents of slavery."
"First, I hope everyone can understand that I made the pedagogical choice with good will — with the intention of teaching the history of our founding honestly," McConnell wrote. "Second, in light of the pain and upset that this has caused many students, whom I care deeply about, I will not use the word again in the future."
In an email to the community sent a few minutes before McConnell's, SLS Dean Jenny Martinez described McConnell as "a respected colleague and a dedicated legal scholar" who "cares deeply about his students."
"Although I strongly disagree with his quotation of the word, he did this for what he believed to be a legitimate pedagogical purpose: to underline the role of racism and slavery in the formation of the U.S. Constitution," Martinez wrote. "In my opinion, and that of many students and colleagues, this purpose is clearly outweighed by the pain and distress that this epithet, which evokes the horrors of white supremacy, inflicts on students, especially students of color."
"This pain is heightened by the recent events in Minneapolis and elsewhere," she added, referring to the deaths of George Floyd — who died after a Minneapolis police officer pinned his knee on Floyd's neck for nearly nine minutes — Breonna Taylor and Ahmaud Arbery.
"The horrific quotation from class today"
In Wednesday's Zoom class, McConnell was discussing the Virginia Ratifying Convention when he turned the recording feature off, according to a student in the class and BLSA's open letter, which was based on the accounts of multiple students in the class.
McConnell read the apparent quote from Patrick Henry — "preceded by a warning and followed by condemnation," McConnell told The Daily — and turned the recording feature back on.
"He turned the recording back on, resumed class, sort of like nothing happened," said the student, who was granted anonymity in order to speak freely about the class without retribution. "He didn't provide any real context for that or really explain why he felt the need to say that in the moment, which I thought was sort of striking, and everyone seemed kind of surprised."
Wednesday evening, McConnell sent a Canvas message to his class on "the horrific quotation from class today."
"I understand that some of you may be upset at the quotation I gave from Patrick Henry today, as well you should be," McConnell wrote. "I do not think that history should be stripped of its ugliness."
McConnell's Wednesday Canvas post. (Screenshot provided by a student in the class)
On Thursday, McConnell opened class by inviting students to discuss their reactions to his use of the word.
According to BLSA and the student in the class who spoke with The Daily, students shared varying perspectives, including showing sympathy for McConnell's reasoning but arguing that the harm to students outweighed the historical rationale to say the word. In response to a student question, McConnell said that he had turned off the recording out of fear that an out-of-context recording of him saying the N-word would circulate on the internet, according to BLSA and the student in the class.
After Thursday's class, McConnell wrote in a Canvas message to his students that he "appreciated the constructive character of discussion in class today," and that "the discussion gave [him] a better understanding of how students have different reactions to hearing a racial epithet read aloud in class."
McConnell's Thursday Canvas post. (Screenshot provided by a student in the class)
But some historians have also doubted the historical accuracy of the quote McConnell read aloud in class, as SLS professor Michele Dauber pointed out in an open letter to McConnell. When referencing the quote, historians often cite Hugh Blair Grigsby, a Virginian plantation owner who wrote a history of the Ratifying Convention in the 1850s. Grigsby attributes the quote to "a person on the floor of the Convention at the time."
Robin Einhorn, writing in 2002, wrote that Henry "apparently" said the quote, and Jon Kukla called it an "alleged comment" in his 2017 biography of Henry. Thomas Kidd, in his 2011 biography of Henry, doubted the quote's authenticity "given Henry's documented sober comments about slavery at the convention, and the belated nature of the source."
"Many times we have seen professors who say offensive slurs attribute it to historical accuracy and accuse their critics of trying to edit that history," wrote SLS professor Michele Dauber in an email to The Daily. "In this instance, it appears that this alleged quote is of highly questionable accuracy. It seems to me that if one wants to argue that they are just being accurate they would do well to actually be scrupulous about that accuracy."
In a private response to Dauber, McConnell wrote that "I frankly no longer remember the original sourcing; the quotation and description of the context is in my notes."
"When the dust settles on this immediate and distressing situation, I will look into it," he added.
McConnell has not responded to The Daily's request for comment on the historical accuracy of the quote.
Swift criticism ensues
On Friday, numerous student groups responded to BLSA's open letter with statements of solidarity, including the Stanford Law Association, Stanford Public Interest Law Foundation, National Lawyers Guild of SLS, SLS Women in Politics and Public Service, Stanford Law Democrats, Muslim Law Students Association, Middle Eastern and South Asian Law Students Association, Jewish Law Students Association, Stanford Latinx Law Student Association, First-Generation and/or Low-Income (FLI) Professionals Board, Women of Color Collective Board and Stanford Human Rights Law Association.
More than 50 SLS instructors also signed an open letter sent by professor Norman Spaulding to students, writing that they "recognize the pain the use of this term causes."
"I recognize that this pain cuts especially deep at a time when the horrific killings of George Floyd, Breonna Taylor, and Ahmaud Arbery have yet again impressed upon black people their profound insecurity at the hands of the state and their fellow citizens," the letter states. "I recognize that the term can cause pain even when it is read from a source, and even when this is done for the purpose of showing that a viewpoint, a period, a law, a case, or a society is shot through with racism."
"I recognize that open, intellectually rigorous, accurate discussions of racism, slavery, segregation, police brutality, and the law's complicity in all of these can be conducted without speaking the term even when the term appears in a relevant text," the letter continues.
BLSA co-President and first-year law student Donovan Hicks told The Daily that BLSA's intention with its open letter was to bring attention to McConnell's actions.
"We want to just make sure that people know this choice was made in this moment, because it seems like keeping it quiet does a greater injustice," Hicks said.
"This argument that we shouldn't sanitize history is moot and ineffective," Hicks added. "Every day, we as Black students are reminded that we're Black, both by the color of our skin and by the external events that keep happening. No one really needs to be reminded about their race or the history of racism, especially in the classroom. That doesn't really create a safe environment. That's really the larger conversation that we want to have: there's really no justification for the use of the word."
Hicks and BLSA co-president Aryn Frazier, a first-year law student, also criticized McConnell's email to the SLS community in a statement to The Daily.
"Professor McConnell has neither apologized nor expressed regret over his use of this racial slur," Hicks and Frazier wrote. "That he had the foresight to stop the recording beforehand reflects at best an unacceptable level of calculated indifference."
The Daily has reached out to McConnell for comment on their criticism.
However, first-year law student Andrew Ezekoye — the only African American student in the class — wrote in an email to Martinez that he had not been offended by McConnell's use of the word. The email was circulated among SLS faculty with Ezekoye's consent, but was later also leaked to students.
"Scrubbing the word from the quote would have made Patrick Henry appear damn near saint-like," Ezekoye wrote. "He was not. He was a flawed human being — a woefully flawed human being at that."
"The unvarnished quote got that point across," he continued. "I was not anywhere close to being offended. Honestly, to suggest otherwise not only is annoying, but is tiresome. I can make the distinction between gratuitous offense and pedagogically necessary material. This was entirely the latter."
A broader context
As Martinez and McConnell sent their statements to the SLS community, protests over Floyd's death were flaring up across the country, including as close to campus as San Jose and Oakland.
"It seems like everything is on pause today [due to COVID-19] except racism," Hicks said.
On campus, McConnell's use of the N-word follows that of other instructors over the past academic year.
Earlier this month, student outcry erupted after a white Latinx assistant art history professor said the N-word while reading song lyrics from a slide in a guest lecture in "Introduction to Comparative Studies in Race and Ethnicity." A week later, she wrote the word again in a Canvas discussion post. In response, the Center for Comparative Studies in Race and Ethnicity (CCSRE) announced plans to increase instructor representation, revise teaching methods and establish a working group.
In November, a history professor drew criticism after repeatedly saying the N-word while quoting from advertisements in a guest lecture for a torts class at SLS.
In an email to his students at the time, McConnell wrote that "not having been at the class, it is hard for me to see the pedagogical purpose" of using the word.
"The use of some terms, especially when blatant, intentional, extreme, or devoid of legitimate context, can also stifle discussion and silence minority views," McConnell wrote. "We should not be quick to censure the speech of others, but we should not let worries about freedom of speech and political correctness stop us from condemning what should be condemned."
On Saturday, McConnell told The Daily that his "use of the term in class on Wednesday, in contrast to the incident last fall, was directly related to the subject matter, presented in full historical context for the purpose of emphasizing the important part that racism and slavery played in the American Founding, preceded by a warning and followed by condemnation."
"That said, in conversation with students I have come to see that the oral use of the term in our current fraught circumstances does not serve its intended pedagogical purpose," he added. "Instead of focusing attention on the racism of the past, it can cause students, especially students of color, to experience (again) the hurtful impact of the word in the present."
After the incident in November, SLS Dean Jenny Martinez apologized for the incident in a letter to the law school community.
"The law school is committed to creating an inclusive environment where all students can thrive," she wrote. "As a school, we still have a lot of work to do."
On Friday, Martinez' email to the community echoed her previous words, noting that she intends to continue working with faculty, administrators and students "on further steps we can take to improve the inclusiveness of our community."
"I recognize how upsetting it is to many in our community to be having a conversation on issues of this sort once again," Martinez wrote. "We still have a lot of work to do."
This article has been updated to include that some historians doubt the historical accuracy of the quote McConnell read in class. This article was also updated to include Andrew Ezekoye's email to Jenny Martinez.
This article has also been corrected to reflect that Donovan Hicks and Aryn Frazier are first-year law students, not second-year law students. The Daily regrets this error.
Contact Erin Woo at erinkwoo 'at' stanford.edu.
Erin Woo
Erin Woo '21 is a Managing Editor of News. A communications major and creative writing minor, she plans to pursue a career in journalism. She has also reported for The Mercury News and WNYC. Contact her at erinkwoo 'at' stanford.edu.