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Stanford Report, May 5, 1999

The N-word: its uses and abuses; Kennedy explores 'undertraveled' terrain

BY ELAINE RAY

If members of the campus community were looking to Harvard Law Professor Randall Kennedy to tell them who was allowed to say "nigger," they may have been disappointed. However, those hoping to engage in a frank and thoughtful discussion of the complexities of this six-letter word certainly got their eight hours' worth.

Kennedy was on campus April 26 through April 29 to give the 1999 Tanner Lectures in Human Values, a series of two evening presentations and two discussion seminars titled "Who Can Say 'Nigger'? . . . and Other Related Questions."

Kennedy resists seeing things in black and white. In his first lecture, given Monday, April 26, in an auditorium in Building 320, he told an audience of about 100 that he had embarked on the question of the "N- word" after reading the opinions of people like entertainer Bill Cosby or Pulitzer Prize-winning journalist E. R. Shipp who wish to banish the term from the lexicon. He quoted Shipp, who once wrote that the word "has no place in contemporary life or language."

"Under this regime," Kennedy said, "one can only shudder to think of the bowdlerization that would be inflicted upon Harper Lee's To Kill a Mockingbird, Richard Wright's Black Boy, Ralph Ellison's Invisible Man and Malcolm X's Autobiography." He surmised that what these critics really may want is to limit the term to use as a historical artifact.

"They want, in other words, for the N-word to be limited to a place in the museum of language, while denying it viability as part of our living and evolving speech."

Kennedy called this approach "a less terrible alternative than the former," but he expressed opposition to both. One reason, he said, was out of concern for "overweening public or private power. Another, however, was that he rather enjoys and admires "a considerable portion of the cultural work in which nigger is embedded." He used as examples black and white comedians who appear on HBO's "Def Comedy Jam," as well as hip hop and rap music artists who use the term in ironic or entertaining ways.

Kennedy also took issue with the argument that only African Americans can acceptably use the term. Though he acknowledged that the word historically has been used by whites to denigrate and oppress African Americans, he insisted that such a racial distinction "ought to raise eyebrows."

Filmmaker Spike Lee, for example, challenged white counterpart Quentin Tarantino, whose characters in such films as Jackie Brown and Pulp Fiction use the word repeatedly.

"Lee's belief corresponds to the popular intuition that blacks can permissibly talk about blacks in a way that non-blacks cannot; just as Jews can permissibly talk about Jews in ways that non-Jews cannot; just as members of the Kennedy family can permissibly talk about other members of that family in ways that non-family members cannot," Kennedy said. He noted that in adjudicating employment discrimination cases several judges have created standards based on who used the word. Kennedy finds that distinction troubling. "There is no compelling justification for presuming that black usage of nigger is permissible while white usage is objectionable."

Kennedy offered his own complex solution: that people "presumptively" should frown upon the use of the word without regard to the race of the speaker, because the word still is so often associated with "ugly, unjustified racial disparagement." But he also suggested that "everyone be offered an opportunity to rebut this presumption, even in those cases in which whites are the speakers and blacks the objects of the language in question."

Kennedy devoted a substantial portion of his first lecture to the case of Keith Dambrot, a former basketball coach at Western Michigan University, who during a half-time pep talk used the N-word to urge his team to improve their game. Dambrot, who is white, had heard black team members use the word as a term of endearment among themselves and asked their permission to use it that day in the locker room. "'We need to be tougher, hard nosed, and play harder,'" Kennedy said, describing Dambrot's locker room speech. "'We need to have more niggers on the team.' He then referred to one white member of the team as a nigger and went around the room referring by name to players as either nigger or half-nigger. The niggers were the players who were doing their jobs well. The half-niggers or non-niggers were the ones who needed to work harder," Kennedy explained.

Afterward, Dambrot told the university's athletic director about his remarks, defending his use of word. The athletic director, however, found the speech "extremely inappropriate" and warned Dambrot that he would be fired if he used the term again.

The university's affirmative action officer had a stronger reaction to the incident. She insisted that Dambrot be suspended for a week without pay and that a formal reprimand be placed in his personnel file. During Dambrot's suspension he was to arrange for a sensitivity trainer to visit the team and explain why the use of epithet was inappropriate. The sessions would be mandatory and Dambrot was to help ensure that the team members were not hostile to them. The coach complied, then explained his side of the story in a campus newspaper interview. The story prompted such public outcry that Dambrot was ultimately fired.

The coach sued the university in federal court, arguing that his First Amendment rights had been violated. Members of the basketball team also sued on the grounds that the university's speech code had violated their rights of free speech. Though the students prevailed, Dambrot didn't. The court ruled that although Dambrot, an employee of a public institution, was protected by the First Amendment, Kennedy said, his free speech rights did not extend to his locker room diatribe. "The First Amendment does not exclude from public employer sanction all speech that is uttered by public employees," just that which touches upon "a matter of public concern," the ruling said. If Dambrot had wanted to talk about the racist issues of the word or the NCAA's exploitation of athletes, Kennedy said, his words probably would have been protected by the First Amendment. "A coach's distress about the degree of aggressiveness shown by his players on the basketball court is a reasonable matter of concern, certainly to the coach," the court said, "but not the kind of question that is fairly cast as a 'public' issue."

While Kennedy said he didn't take issue with the court's ruling in Dambrot's suit, he did object to the university's decision to exercise its authority to fire the coach. He said the athletic director's original warning was appropriate. Although the coach had asked permission to use the N-word, he said, it is likely that a player on a team in the throes of a loss might be hesitant to object. Moreover, using the term was not essential to the coach's ultimate goal, which was to get his team to play better basketball. Kennedy did object, however, to the university's subsequent actions. He called the sensitivity training one-dimensional because it would not allow for a dialogue over the propriety of the term. He added that the university capitulated to critics too quickly, without clarifying the facts of the controversy. "Sometimes it may be wise, albeit tragic, for a university administration to sacrifice a deserving employee to mollify public anger that might otherwise pose a threat to a university's future," Kennedy said. "In this case, though, the authorities at Western Michigan capitulated too quickly to the formulaic rage of affronted blacks, the ill-considered sentimentality of well-meaning whites and their own crass opportunism."

During a seminar held the following afternoon, Kathleen Sullivan, the Stanley Morrison Professor of Law and the dean designate of the Law School, called the lecture "marvelously provocative and thought provoking." After summarizing Kennedy's remarks from the night before, she opened the floor to a discussion, and students, faculty and local residents shared their experiences related to the use of the word. One man, a local resident, said that when he was growing up in the South, he saw the word as simply a mispronunciation of the word "Negro." He said the word "didn't have as much power as 'boy' or 'darkie' in Tennessee. It was just a word." Another participant, who was younger, disputed that assertion. He said he'd also grown up in the South and was taught that "good whites" did not use the term. Kennedy, who grew up in South Carolina, said he had learned to distinguish between "niggra," which was a seen as a mispronunciation, and the N-word.

Kennedy's second lecture explored two types of legal cases. The first included those like the O. J. Simpson trial, in which judges must decide whether to exclude certain facts from a jury in the face of claims that those facts may be harmful to the jury's task. The other type of cases Kennedy focused on included those in which judges had to decide whether defendants charged with committing lethal violence could be considered less culpable because the victim "provoked" them by deploying the slur.

In the Simpson case, Kennedy said, prosecutors tried to get Judge Lance Ito to prevent defense attorneys from questioning Los Angeles Police Detective Mark Fuhrman about his racial attitudes and particularly his "alleged penchant for derogatorily referring to blacks as niggers." Defense attorneys, of course, insisted that Fuhrman's views were relevant to their theory that the officer had planted evidence.

Kennedy also cited studies conducted by social scientists that looked at how the use of the N-word as an epithet could affect a listener's behavior. In one such study published in the Journal of Social Psychology, researchers Jeff Greenberg and Tom Pyszczynski asked groups of white college students to judge debates between white and black contestants. Immediately after the debates, persons secretly working with the researchers either criticized the black contestants by using the word as an epithet, described the black contestants in a non-racist manner, or simply made no comment. The white observers who overheard the insult were more likely to evaluate the black debaters harshly. "This suggested, they believed, that racial slurs 'can indeed cue prejudiced behavior in those who are exposed to [such slurs,]'" Kennedy said. He also cited former Stanford Law Professor Charles L. Lawrence III, who called the term "a form of violence by speech" that should be shorn of its legal protection.

Kennedy insisted, however, that neither the Greenberg/Pyszczynski research nor Lawrence's views were relevant to the Simpson case. After all, he said, "the issue was not the extent to which blacks slurred by Fuhrman would be stigmatized in the eyes of jurors but rather the extent to which Fuhrman himself would be stigmatized in their eyes for having uttered the N-word as a slur."

Kennedy criticized Ito not for being too lenient in his treatment of the defense but for being "excessively restrictive once the perjurious character of the detective's testimony was revealed." Although Kennedy said he thought the jury had come up with the wrong verdict, he reserved his harshest criticism for "putative guardians of law and order [who] have discredited themselves by voicing their prejudice through indulgence of the N-word. Police officers, prison officials and prosecutors have all too frequently been the malefactors." He later cited cases in which judges had also exhibited "disgraceful conduct."

As to the question of whether a defendant charged with a violent act can argue that he or she was provoked by the victim's use of the N-word, Kennedy acknowledged that he was "conflicted." On one hand, he finds it appalling that in many jurisdictions, a homicide charge can be reduced from murder to manslaughter if the defendant committed the crime after finding a spouse in the arms of a lover, but not if that defendant "went berserk upon being called a 'nigger.'" On the other hand, he said, the notion is appealing that society would deplore all murder no matter what the provocation. "Third, I find myself recoiling from a legal system that would decline to differentiate the moral culpability of a person who killed in reaction to a blood-quickening racial epithet and the moral culpability of someone who killed with malice aforethought. Fortunately, though, for the purposes of this lecture, I need not resolve this dilemma. I need only point out that following the noxious epithet nigger is a good, revealing and undertraveled way of exploring this terrain."

The lecture series concluded Thursday, April 29, with a second seminar led by Sanford Levinson, a law professor at the University of Texas at Austin. Levinson devoted most of the discussion to the use of racial epithets in works of art and literature. Should the contemporary performances of the Mikado include all the words of its original score, even though one of the songs includes a reference to the elimination of "a nigger serenader and others of his race"? What about Bach's Passion According to St. John, with its references to Jews as Christ killers? Is it ever appropriate to ban Huckleberry Finn, with its 215 references to the N-word?

Kennedy admitted that when he first heard about a case in Arizona in which a black parent was suing her child's school because she didn't want the child to read the Mark Twain book, he thought the parent was a "know-nothing." But after talking to the parent's attorney, he was more sympathetic. The child was one of a few African American students in a school in which racial harassment was common. The parent legitimately feared that assaults against black students might escalate if students deemed use of the word fair game.

Critics of Huck Finn are easy to lampoon, Kennedy said, adding that defenders of the book assume that it will be taught by a thoughtful teacher. "The reality makes it a tougher question." SR