Given that Professor Charles Nesson has stepped down from teaching his 1L courses for two weeks, some might say he has gotten what’s coming to him. Nesson, after all, has been alternately vilified, caricatured and revered in these pages and at HLS at large for his classroom antics.
Yet Nesson’s behavior in this case is far from the most egregious. He has neither used racial epithets nor refused to respond to the charges at hand. Although his latest efforts may have offended students even more, one cannot say that Nesson has shown no concern. His recent step, though odd is nonetheless somewhat admirable. BLSA made demands of Nesson, and he seems to be preemptively complying with them.
The same cannot be said for Professor Rosenberg. He continues to frame the issue as one of academic freedom, arguing that he merely advanced a criticism of the school of thought properly known as critical race theory.
But students’ complaints are not about Rosenberg’s feelings about critical race theory. Their anger seems predicated upon his use of the term, “the blacks,” and his refusal to apologize for the characterization of critical race theory as such. Rosenberg ought to take a partial cue from Nesson, and do his best to address the issue at hand personally.
However, Rosenberg’s mention of the potential “chilling effect” of possible HLS sanctions is not totally unwarranted. However, Rosenberg is an HLS employee. If his teaching style — which is known for its abrasiveness — makes students so uncomfortable that they cannot sit in his class, then sanctioning him might be considered an economic decision. He does, after all, work for HLS.
Still, considering sanctions against any of the parties calls into question the most fundamental principles of the application and meaning of the First Amendment. The administration has already referred at least one student to the Administrative Board, and may follow with sanctions of 1L Kiwi Camara. The policy the administration is applying is an interpretation of the University’s Statement of Rights and Responsibilities, which reads:
” It is implicit in the language of the Statement on Rights and Responsibilities that intense personal harassment of such a character as to amount to grave disrespect for the dignity of others be regarded as an unacceptable violation of the personal rights on which the University is based.”
That is hardly a coherent statement of anything, much less a racial harassment policy. The lack of BLSA’s requested racial harassment policy, it seems, is precisely the problem HLS faces. The Law School cannot retroactively apply a policy it does not have. The statement that Scholl is being punished merely for the use of anonymous e-mail is duplicitious at best.
As Deans Clark and Rakoff have recognized, HLS finds itself at a difficult juncture between community building and retaining a liberal climate with as broad an ideological range as possible.
In the meantime, Rosenberg, Camara and Scholl should follow the lead of Professor Nesson (and the Legal Aid Bureau) and respond to the charges against them in a meaningful way.