The Mastery of Emotions

Professor Volokh defended his colleague's Ferguson exam question, arguing that a key skill learned in law school is analyzing fraught subjects even when deeply invested in them. If you want to work for the NAACP or the NRA, "you will do your clients no favors by being so zealous in your opinions that you fail to grasp the best arguments on the other side," he explained. "And that is also true when the matter is still raw in your mind." Often, lawyers must make arguments about traumatic events that affect them "much more directly than the Ferguson incident involved UCLA students," he continued. For example, an innocent client may be sentenced to prison as a result of a verdict that her lawyer believes to be racist, or an appellate judge may unjustly reject an argument that a lawyer labored for years to develop. "As a lawyer, you need to master your emotions enough to deal with such situations," he wrote. "As a student, you have to learn how to do that."

Some critics of UCLA's exam question have argued that it put an unequal burden on black students, who alone had to navigate this hard lesson about emotional mastery. As a commenter at The Washington Post put it, "Why should a psychologically weak-minded white male get a higher grade than a psychologically weak-minded black male? If you are going to talk about situations that would agitate black males, you ought to also talk about situations that would agitate white males and Asian males. If you are going to talk about situations that would agitate females, you should talk about situations that would agitate males."

I'm uncomfortable assuming that all black students would feel a certain way about a Ferguson exam question, or that no white students would be as emotionally invested in the protests. And one can imagine an activist of any race who felt deeply invested in the Ferguson protests, independently studied protest law, and thereby excelled at a question asking for a 1st Amendment analysis of protest speech. Still, generally speaking, a law school's lectures and exams shouldn't disproportionately test the emotional mettle of a single group, subjecting them to a curriculum that is more difficult even as their peers are robbed of any chance to improve their ability to think about cases that upset them.

As Volokh goes on to note, however, it is common for many people to have deeply emotional reactions to lots of subjects law schools commonly cover to prepare students:

Questions about bans on revenge porn can be upsetting to people (mostly women) who have been victimized or who can easily see themselves as victimized by revenge porn. Questions about rape shield laws and the Confrontation Clause can be upsetting to rape victims, and to people who have been incorrectly accused of rape, as well as to people who can easily envision themselves as either. Questions about restrictions on Koran-burning or the Mohammed cartoons can be upsetting to Muslims. Questions about abortion rights, or anti-abortion picketing, can be upsetting to those who view abortion as the modern Holocaust, or to people who have had abortions, or to people whose prospective children have been aborted by ex-lovers who didn’t share the person’s desire to let the child be born. Questions about the Hobby Lobby case can be upsetting to people who are appalled at the very prospect that the government would suppress their religious freedom rights, and force them to be complicit in what they see as mass murder. Questions about gay rights or anti-gay-rights speech can be upsetting to gays and lesbians or to people whose deeply felt religious beliefs are constantly derided as bigoted and tantamount to racist. The list could easily go on.

In addition, the subjective emotional reaction students have to exam questions often have little to do with how the issue affects people of their identity in the real world. An old acquaintance of mine, a staunch conservative from a Jewish background, relished in absolutist defenses of the 1st Amendment, and could talk in soaring abstractions about the inviolable right of Nazis to march through Skokie, but mention the Senate confirmation of Clarence Thomas and his blood would be boiling as he denounced liberals in language that would've made Andrew Breitbart blush. As best I can tell, emotionalism is evenly distributed among people of different racial and gender identities. There are good reasons for activist groups at law schools to be particularly attuned to the treatment of minorities and women. But talk of "triggering" those groups can stray uncomfortably close to racist and sexist assumptions that they're less rational or more easily upset.