Monday, February 26, 2007

Another @#!&%*# Speech Case at UW!

First, if you haven't already heard about it, you need to read the article, "Professor Accused of Racial Slurs," from last Thursday's Capital Times. It tells of a recent firestorm sparked when a UW student alleged in effect that a Prof. Leonard Kaplan went all Michael Richards during a lecture on inter-ethnic relations.

Next, here are excerpts from a statement, placed on interesting page of the Badger Herald web site, by Nam Dao, a UW student who is enrolled in Kaplan's legal process class and, unlike a lot of people who have weighed in on this issue, was actually present at the now-notorious lecture:
... Though I was not offended by Kaplan’s use of the Hmong stereotypes, I felt a bit uncomfortable mainly due to the delivery of the stereotypes, which were shrouded in Kaplan’s trademark style of humor that can be quite polarizing. Yet at the same time, I realize that law school is not about being in your comfort zone all the time. Many times, we discuss delicate issues that affect everyone including gender, race, and sexual orientation.

... The subject matter in our Legal Process class was about the role of cultural values in formulating law. Kaplan used Hmong stereotypes, particularly the dowry system and the gang problem, to illustrate two points. With regards to the dowry system, if a women does not consent to sex, the man will be charged with rape in America. However, in criminal cases involving ethnic minorities, there exists the cultural defense argument—essentially, “in my culture this is not a crime.” Kaplan noted that the cultural defense argument is used by people from other cultures as well, such as Muslims. Regarding the gang problem among the Hmong population, Kaplan used it to illustrate the point that the state of Wisconsin is not doing a good job of providing educational opportunities and job training to the Hmong. Thus, the state of Wisconsin is not doing a good job of embracing cultural differences and helping a section of the Hmong to assimilate into mainstream culture. Kaplan noted that the second generation of immigrant groups usually contain a criminal element, using Meyer Lansky, who was Jewish, to illustrate that point.

I think it is clear that Kaplan is not a racist, but nonetheless some of my friends and classmates were offended by his use of Hmong stereotypes to illustrate an academic point. ... I feel that the classroom is a place to discuss stereotypes, especially in law school. Society does not have too many forums where we can discuss stereotypes openly. Kaplan, I think thought that these stereotypes were based on empirical observations. I don't think that Kaplan was trying to make a value-judgment about Hmong people. I think a reason why people were offended was because of his unconventional style, and couple that with the fact that the Hmong are under the microscope in WI and we have the volatile situation we see here. I think this incident can be a springboard to promote thoughtful and productive dialogue about race consistent with the teachings of Grutter. ...
I was not there and have not heard Prof. Kaplan's own account of what he said, so I will just say six things about this already-sorry tale. Keep in mind that all six are offered from the I-wasn't-there perspective:

Thing one: I have known Len Kaplan for over twenty years, and if I thought I heard him say some of the bizarre things alleged in law student Kashia Moua's defamatory email about him -- eg., that young Hmong men have no talent for anything but to commit murder -- I would sooner believe that I was hallucinating than that Len said and meant them. He is not a racist. As Hume said, in a conflict like this, always reject the greater miracle.

Thing two: As odd as this might seem, I think Moua should have thought something like that as well. It's more likely that there is a misunderstanding here than that a highly educated person who has spent a lifetime thinking about these matters would say such utterly wacked-out things as expressions of his/her own opinions. Get a grip, people!

Thing three: In some incidents like this one, including possibly this incident itself, people show a very poor grasp of what analytic philosophers call the use/mention distinction. If I quote someone else using the N-word, I am not using the word. I am mentioning it. This is a big difference. Shakespeare did not say "Life is a tale told by an idiot." MacBeth said it. Mark Twain did not say "Give a nigger an inch and he'll take an ell." Huck Finn said it. If I use a word, that supports your making some direct inferences about my beliefs and feelings. If I only mention it, matters are more complex. Shakespeare and Clemens did not agree with the the statements their characters were making. Their motives in constructing these sentences were rather more complicated and roundabout than direct self-expression. What were their motives? This is where you have to be complex yourself, and do some interpreting. The trouble is, today we are getting to be so sensitive to the power of certain words and locutions, that this complexity is becoming impossible. Mentioning them at all tends to be somewhat unsafe. This is not a good thing. We have to be able to mention them in order the rationally check and improve our opinions.

Thing four: From all the accounts I have seen, it looks like Dean Davis of the Law School has handled this incident very badly, from the point of view of the need to maintain a climate of rational discourse at the university. He has repeatedly apologized in Kaplan's behalf, expressed disapproval of him, and never said one word, as far as I know, that reflect an appreciation of Kaplan's rights of free speech and academic freedom. It looks like his only concern throughout has been to soothe the angry, and to assure them that at all events they should not be angry at the law school or at him. If that is indeed true, he should do something to correct this situation, right away.

Thing five: Professors and deans should think of incidents like this as "teachable moments," as opportunities to get the message across that, in any conversation, you have an obligation to make a good-faith effort to understand what the other person is saying. This is one of the most profound life-lessons you can get from a liberal education. It looks like this was very far indeed from what the Dean was thinking in this case.

Thing six: Some people who have weighed in on this have said that whether comments are racist need not depend at all on the speaker's intent. The impact of the comments, or the speakers lack of care about their impact, can be sufficient. I think this is a very serious error. The only thing that can ever give meaning to any comment is speaker-intent, the human thought behind the sounds. Impact can be ethically very important, but it is important in a completely different way. To say the impact alone can give meaning, is to say that you can can grasp meaning without bothering to interpret your fellow human beings. It is to say that your anger over the impact is a good-enough substitute for understanding.


Anonymous said...

Sorry professor but impact does matter. You don't spew something and said "I didn't mean the harm that came from it". A lawyer especially knows that - take the crime of felony murder. A crime may be manslaughter (lacking the intent of homicide) but if the manslaugther occurred in the act of a felony, the impact is looked at rather than the intent. An example, from wikipedia so i don't mangle the application is: For example, a getaway driver for an armed robbery can be convicted of murder if one of the robbers killed someone in the process of the robbery, even though the driver was not present at and did not expect the killing.

Its amazing in all the publicity, press and commentary on this topic, that NO ONE has really addressed the academic's responsibility to use the bully pulpit with some level of grace, tact or subtlety. He may not have meant it, but you know what, the manner of his delivery stunk, was hurtful, and polarizing. And while "reasonable" minds may disagree on the intent or the impact, it doesn't matter to the poor soul who has to listen to his/her culture, identity and family relations reduced to an unsophisticated bunch of thugs.

I'm all for critical thought and free expression. Students should be ready for it - but so should faculty when they bumble into something so clumsily.

Anonymous said...


Intellectual integrity, freedom of speech, and "will to power" does not justify the delivery and use of stereotypes. Professors, no matter how free their thinking is and should be, are not immune to the racial prejudices of their conditioning.

KaShia Moua was responsible and courageous to call out this you mentioned, this is a teachable moment...and KaShia is teaching Prof. Kaplan that instititutional racism manifests itself most prominently in it's delivery system, in this case...the professors. Professors who perpetuate racial stereotypes,regardless of their intention. Kaplan is most offensive because of his latent, so called "unintentionial", and deeply internalized beliefs...he is not even aware and neither are you of how you've been conditioned as white educator. I applaud KaShia's efforts and the other activists who challenge the UW-Law school to reflect upon it's teaching standards and embedded views of race and law.

Detach yourself from your association with Kaplan and analyze his comments from the perspective of the Hmong community. The teaching of law does not happen in a cultural vacuum.


Lester Hunt said...


Thanks for your thoughtful comment. This is just the sort of serious discussion we need on these issues. When you say "impact does matter," I couldn't agree more. Legally and morally, it's the main thing! The criminal law punishes you for effects you have on others, mainly. The alternative would be to punish you for your thoughts. We wouldn't want that at all!

But I wasn't denying that impact matters. What I was denying was that impact can show that something is racist. Here I was making an assumption, which someone might well deny: that saying "that's racist" imputes a certain meaning to whatever you are talking about, like saying "that's a sin." If this is true, it racism must be a matter of speaker's intentions, not impact.

"Its amazing in all the publicity, press and commentary on this topic, that NO ONE has really addressed the academic's responsibility to use the bully pulpit with some level of grace, tact or subtlety." Again, I agree, except that I don't really find it amazing. If somebody responds to a lecture by writing an incendiary email message and organizing an angry mass meeting, they are preventing this sort of constructive discussion from taking place. Imagine that Ms. Moua had gone up to Prof. Kaplan after the class and objected to the things he said -- or did so during class discussion -- he would have been glad to talk about it (probably at great length!) and he would have learned something. Maybe she would have too!

On the other hand, if you do what she actually did, you are creating a situation in which there is nothing the other side can do but either fight or surrender. (That's what these tactics are meant to do!) This does not enhance the climate for rational discourse.

Lester Hunt said...


Thanks for your comment. As you are a user of rational discourse, I think of you as part of the solution to this problem!

"KaShia Moua was ... courageous to call out this professor..."

To a degree, yes. I'll also give you that she was sincere, meant well, and had reason to be upset. But I think it would be easy to exaggerate how much courage is involved here. Everyone knows that, in the university community, dropping the "racism" bomb does sure-fire reputation-damage. And that the bad effects almost never splatter back on the person who dropped it. Notice that all the subsequent acts of the dean and Prof. Kaplan were aimed at soothing, reassuring, and appeasing her and everyone who has the same feelings and thoughts that she has. Surely no one was surprised at this.

"Intellectual integrity, freedom of speech, and "will to power" does not justify the .. use of stereotypes."

Use or mention? This is one of the issues involved here, isn't it? Also, crazy as this sounds, I don't think I agree with this statement. Stereotypes (at least the kind of stereotype you mean) are incorrect and morally bad, but they are opinions and the holders of those opinions have a right to them. This doesn't mean that they are justified, only that the right response to them is to argue against them. I would say the same thing about Holocaust-denial, which is much more despicable than most stereotypes are.

" you mentioned, this is a teachable moment...and KaShia is teaching Prof. Kaplan that institutional racism manifests itself most prominently in it's delivery system, in this case."

I would be the last person on Earth to say that professors can't learn from students, but I think she is using the wrong teaching methods for this sort of occasion. What she did was meant to intimidate. Such methods, I think, are only appropriate when you know a) what the person did, b) how they meant it, c) that they were seriously in the wrong, and d) that further conversation with them is useless. I have been saying that (c) and (d) probably aren’t true, and it is doubtful to me that KaShia Moua is in a good position to know that (a) and (b) are true, either.

“Kaplan is most offensive because of his latent, so called ‘unintentionial’, and deeply internalized beliefs...”

How on earth can you know what is deep inside Leonard Kaplan? I guess the answer is, “because its about institutional racism.” But if it really is institutional, then it isn’t about individuals at all. “Institutional” racism, or institutional anything, doesn’t back up the idea that anyone is morally bad, offensive, or deserving of public humiliation. You can’t have it both ways: either it’s personal, in which case you have to know the guy, or it’s institutional, in which case it is impersonal and not a moral issue.

Anonymous said...

FYI, the students did not first go public with their complaints. They sent a letter to the Dean. The Dean asked their permission to share the letter with Professor Kaplan, which they granted. Once shown the letter, Kaplan then spoke with the students but, in that exchange, appears to have left them more upset rather than less upset. It was only after these events took place that the students chose to organize a Wednesday night meeting, which is the first time that this matter went public. It seems a shame that the private conversation between Professor Kaplan and the students was not managed in a way that led to this being settled at that time. Even with all of that, the students have never called for censorship or discipline of Professor Kaplan. They have consistently sought a venue to teach the law school community about today's Hmong community.

Lester Hunt said...


"FYI, the students did not first go public with their complaints..."

Well, that does make a difference: particularly to what I should think of what the students involved did. None of this was mentioned in any of the published reports I saw. I probably should write a new post on this, after I have had a chance to think it over.

Also, I do appreciate the fact that they never called for disciplinary action against Prof. Kaplan. I had surmized as much.

Anonymous said...

Let me preface this by saying that I am Hmong.

I don't know what Kaplan said or what he didn't say. Only he and those students who were present in class on that eventful day know. However, after reading some of the comments from Kaplan's supporters such as colleagues and former students, I feel compelled to chime in. I completely agree that the professor is entitled to his opinion due to the freedom of speech and academic freedom. What I don't agree with is their hypocrisy when they belittle the emotions of the Hmong students, those who were there. Comments such as "they (the Hmong students) were overly sensitive" or "over reacted" or "lost the message in the sarcasm, satire, and humor" are not only insulting to me, they are insulting to Hmong everywhere.

Human beings don't think alike. What is casual comment to you, may be an repulsive insult to another. Let's pretend that Kaplan complimented the Hmong as being God's gift to the planet. Even so, these Hmong students would still have the right to tell him to take a hike. Kaplan's supporters have continuously cited academic freedom, yet it appears that they only value academic freedom when it benefits them. Is it a surprise to Kaplan and other professors that we Hmong can think and act for ourselves? Or do you prefer that we just nod our heads in agreement, sit back in awe, and worship you? Is this your idea of academic freedom? You say something. I respond. You act. I react. That's academic freedom. Since when did Kaplan and his supporters become the moral compass of human emotions and free thought?

Contrary to the opinion of some of my fellow Hmong students, I don't believe that racism played a role in this situation. What has transpired since then, however, is complete hypocrisy. It wreaks of cultural arrogance and personal egotism. Indeed, Kaplan has every right to express his views without apology and free of censorship. However, Hmong students have the right to react and feel the way we want to. It's our right. Even if all he said was that he liked pepporoni pizza, some of us may prefer pineapple and ham. This is called freedom of choice. Let us not forget.