For My First Trick...

I anticipate that many posts to this blog will concern civil liberties in higher education. For two years after I graduated from Dartmouth College, I worked in Philadelphia for the Foundation for Individual Rights in Education, or FIRE. FIRE is a terrific organization that vigorously defends free expression and other civil liberties in higher education.

Just today, I contributed a post to FIRE's weblog, The Torch. It concerns a debacle at the University of Wisconsin's Law School, where a professor made very provocative statements about the Hmong people. (There are a number of them in Wisconsin and Minnesota, and relations with non-Hmong neighbors are apparently testy.) The professor, Leonard Kaplan, allegedly said:

"Hmong men have no talent other than to kill."

"Hmong women are better off now that Hmong men are dying off in this country."

"All 2nd generation Hmong end up in gangs and other criminal activity."

"All Hmong men purchase their wives, so if he wants to have sex with his wife and she doesn't consent, you and i call it rape, but the Hmong guy is thinking 'man, i paid too much for her!'"

These statements were in an email from a student, KaShia Moua. It is not clear if she was in the class at the time or not. Prof. Kaplan has defended his statements, however; he says that he merely wanted to show how some defendants might rely on cultural practices and attitudes as a defense in serious crimes, such as rape.

An unavoidable problem with defending free speech rights is that it almost always involves defending speech that, rightly or wrongly, has offended someone. (Otherwise, it wouldn't need defending.) Prof. Kaplan's statements, if true, are in dubious taste, to my mind -- even allowing for his explanation. And yet, the pedagogical value of extreme examples is pretty clear. Provocative hypotheticals are a great way of getting students to test the boundaries of rules and the logic that underlies them, and professors should not be unduly hampered in their use of this effective tool.

One of the first cases I worked on at FIRE involved George Fletcher, a criminal law professor at Columbia University. He was taken to the woodshed for an exam question -- based on a composite of actual cases! -- in which the victim of a violent assault was actually thankful to her assailant because the attack caused her to miscarry the child she was bearing. As in the Kaplan case at UW-Law, the pedagogical value of such a shocking scenario is fairly clear -- yet Prof. Fletcher was told by Dean David Leebron that his exam question may amount to discrimination and harassment.

Prof. Fletcher was ultimately vindicated, thanks to FIRE's help. As for Prof. Kaplan, he may not need any help (knock on wood): the administration has thus far declined to take any action against him. UW-Law administrators have responded to this fracas in a much more responsible manner than did their Columbia Law counterparts. Let's hope this continues.