It’s Time For Some Tough Conversations

The good news is HLS students want them, but the bad news is we’re trapped in a bubble

Everyone is talking about how we university students talk. The nation seems to have convened a public forum to debate our debates. From courtrooms, to newspapers, to podcasts, to research reports – the state of speech on campuses is firmly on the agenda, and we are not receiving a glowing review. Our “political correctness” has apparently infuriated a nation.

Late last year during oral argument at the Supreme Court, Justice Alito enlisted a hypothetical college student to test the limits of concern over jury bias. “Let’s consider the standard that now applies on a lot of college campuses as to statements that are considered by some people to be racist,” he said. “What would happen if one of the jurors has the sensibility of a lot of current college students?” It seems unlikely that the fabled “reasonable man” was simply taking a sabbatical and was unavailable to feature in Justice Alito’s analogy – the Justice was making a point about our sensibilities. And he was doing so in language that just assumed everyone knew what he was talking about. A few days after the Presidential election, Alito again decried the “new orthodoxy” that prevails relating to speech campuses around the country. This “orthodoxy” has itself become a sort of stereotype in the national debate – rarely explained, the way campuses are invoked in these conversations conjures up images of oases populated by highly sensitive hipsters who don’t have time for confronting debate between picking up their dairy-free kale-infused chai lattes and their compliment-only freestyle poetry clubs. So how do HLS students stack up?

Conversations at HLS

To be fair, based on the results of a recent Record survey, Supreme Court Justices aren’t the only people concerned about the state of speech on campus. A large number of HLS students have concerns about the quality and variety of their dialogue diets too.

Again and again, respondents expressed frustration and sadness at the lack of diversity in viewpoints on campus. Many bemoaned the lack of conservative viewpoints, and several expressed concern at the lack of tolerance for people who expressed opinions that differed from the progressive orthodoxy. HLS was described by a large number as a liberal “echo chamber”. More exasperated comments went as far as saying it felt like there was campus-wide left-wing “groupthink”.

This should worry everyone, both left and right. Even before Trump prevailed, the 2016 election had made it clear that the polity needed to have some tough conversations. Now, it’s more apparent than ever. The fact the nation is polarized is not news, but the profound breadth and silence of the gap between constituents seems to have led to a complete failure to understand the forces moving in society. The gap must be bridged, and an important forum for this is in the classrooms where the nation’s future leaders are developing the intellectual frameworks through which they will see the world.

Trigger warnings

It seems artificial to discuss trigger warnings given the rhetoric that now pervades news cycles. We’ve spent much of the last year being reminded of the President-Elect’s statement that he grabbed women by the genitals. Swastikas are being spray-painted in the streets. The President-Elect constantly invokes the images of violence and of black people being shot going to the store in the inner cities. Did the fact that we often have to take a deep breath before opening the news in the morning have any effect on whether students wanted trigger warnings when confronting topics came up in class?

The vast majority of respondents to the Record survey (71%) were against compulsory trigger warnings of any kind, and almost half of those (32%) thought they should never be given – even if the professor deemed course content potentially upsetting. What’s more, respondents felt very strongly about these views. On a scale of 1 to 5, 85% said “5” when asked how strongly they felt about their answer, and only one respondent answered less than “4”. By contrast, those that wanted trigger warnings did not seem to feel as strongly about it. None of the 6% of respondents that thought trigger warnings should be given “Every time the topic is in a category that may evoke a strong emotional response” answered “5”.

While there is obviously a possible response bias inherent in a voluntary online survey, the overwhelming predisposition is clear – HLS students are against trigger warnings, and passionately so.

In explaining their responses, by far the most common concern raised was the one reflected in Greg Lukianoff and Jonathan Haidt’s now-famous article in The Atlantic, The Coddling of the American Mind” – the idea that trigger warnings reflect a culture that poorly prepares students for professional life. As one student put it, “The real world doesn’t come with trigger warnings.” There was evident concern about the kind of culture such initiatives promote and the threat to the free flow of ideas. But perhaps now more pressing is not the lack of exposure to the ideas themselves, but the creation of a culture presumptively against confrontation in all its forms. The fear expressed by many was eloquently summed up by one, “The sadder and scarier part is as trigger fear becomes more pervasive, we become a community who forgets what it was like to freely exchange ideas. We forget the virtue of positions that make us uncomfortable and ideas that challenge us.”

Those in favour of trigger warnings said that with potentially triggering content, it was best to “err on the side of caution”, and that students could be informed in course descriptions. The view expressed was that they do no harm and “there should be absolutely no pressure or expectation that a professor change the content of a course”. Professors, however, have expressed scepticism that there is no pressure to change content if the focus becomes on ensuring no one is upset by material covered. Professor Suk has written about this in The New Yorker in relation to rape law.

Even if there is no chilling effect on how professors approach the question of whether to include valuable, but potentially upsetting, content, the question becomes whether trigger warnings are effective. A number of respondents raised the concern that if a student was vulnerable to being triggered by course content, this should be dealt with as a mental health issue rather than in the classroom. Others who had received trigger warnings in class said they had been unsure what you could do in response when it was clear that the material would still be covered and be potentially examinable. Proponents of trigger warnings rarely spell out exactly what role trigger warnings can or should play in the comprehensive mental health care of a traumatized individual. As the recent PEN America report on Freedom of Speech at US Universities notes, the benefits of trigger warnings for vulnerable individuals are “matters of dispute among scholars, psychologists and scientists”.

Another key issue is that it is impossible to know what could be potentially triggering for every student in the classroom. Sexual assault is the most often raised example of a triggering topic, and is demonstrably a trauma that is an all too common experience. But this is far from the only relevant subject. The web is vast – some respondents talked about students they knew who had witnessed killings. Consider also topics like suicide, drug use and overdoses, euthanasia, incarceration, gun rights and shootings – all come up in HLS courses, all are traumatic, and all have indubitably touched the lives of HLS students, but are rarely discussed in relation to trigger warnings. It is immediately clear that offering warnings for all potentially upsetting material is a practical impossibility – not only because of the sheer volume of such material, but more fundamentally because we cannot know all the vulnerabilities created by the expansive universe of human experience that is characteristic (and the strength) of the HLS student body.

Given this, it is interesting to note that only 60% of respondents thought they had taken a course at HLS that would require a trigger warning if they were made mandatory. This can be partially explained by 1Ls who have not yet taken Criminal Law (only 59% of ILs said they had taken a course that would need warnings), or LLM students who have a large degree of discretion in choosing their program and may, for example, take entirely commercial subjects (only 35% of LLMs said they had taken a course that would require warnings). However, only 79% and 67% of 2Ls and 3Ls respectively thought they had taken a course that would require trigger warnings, which suggests that the prevailing debate around trigger warnings in the media may foster a narrow view about what is “triggering material” that is not necessarily justified.

Controversial speakers

An overwhelming majority of respondents (87%) disagreed with the proposition that HLS official events “should not involve speakers who hold controversial views or are highly politically divisive”. Again, this appears to be more important to those who are against restricting the kinds of speakers on campus than those who agreed that HLS should not invite controversial speakers. Of the 52% of respondents who answered “5” when asked to say on a scale of 1 to 5 how strongly they felt about this issue, only 3% were those who had said they did not think controversial speakers should be invited to HLS events.

A number of comments rightly criticized the question as being phrased too broadly, and sought to draw distinctions between speakers who were worthy and those who were purely notorious, or between viewpoints that were controversial and those that were invalid. These are fair criticisms of the survey, but they raise difficult questions about where the lines are and who should draw them. Some students might feel that members of the incoming administration hold “invalid” viewpoints, but they are also undoubtedly influential. Fivethirtyeight has written about the lack of conservative speakers at Commencements recently – it is not hard to understand why when protests have erupted in the past few years at the invitations of Condoleezza Rice and Christine Lagarde.

While HLS students’ receptiveness to controversial speakers should be encouraging to those who are concerned about overly sheltered university communities, it is entirely possible the robustness of this commitment may soon be tested. People are dismayed at appointments in the new administration – but can it really be argued that their views aren’t of consequence or don’t have educational value?

Going forward

Now is the time to have hard, but productive, conversations. And if we can’t have them here, we won’t have them in legislative chambers, courtrooms, boardrooms or town halls. Hopefully, HLS students can be true to the ethos expressed by the majority in this survey that we want robust, uninhibited dialogues. If we see people being shut down for having the ‘wrong’ view, we need to speak up for their right to express it and remind each other that they broaden our horizon by doing so to our benefit. The pleas for alternative viewpoints will only be effective if accompanied by an open mind and lack of judgment. And now more than ever, this has to be part of our education, because a voice never heard is an idea never understood.

So no pressure, but maybe think about how many people are talking about how we talk when you sit down for lunch with your peers today.

If we don’t much care about whether we disappoint Justice Alito, at least we shouldn’t disappoint ourselves. Now is the time to meet ideas that challenge us head on and burst the bubble to let the air in.

Evelyn Douek is a Record contributor. She is an LL.M. of the Class of 2017.