Handling Sensitive Topics at Law School

The Volokh Conspirators are apparently being approached by worried Harvard law students. Eugene Volokh has passed along an email, without comment, the following:

I wish I were a tenured professor, and was able to say reasonable and true things freely, like the idea that things that haven’t been proven yet remain unproven.

Instead, I’m an incoming student at Harvard Law next year. And even though I’m neither interested in nor well-informed about the IQ-race correlation debate, I am scared to even mention my opinion on the subject to my friends or roommates, or ask them about it. I have no idea what I would say if someone asked me if I could categorically rule out the possibility that there was a correlation between race and IQ... but the funny thing is, I have no idea what anyone would say. The reasonable thing to say has been tabooed.

The law student just said, "I’m neither interested in nor well-informed about the IQ-race correlation debate", so it would seem to me that the reasonable thing to say would be, "I'm not interested in having this conversation."

It would also be quite reasonable to consider why somebody would present you with that particular challenge. I honestly cannot recall somebody, out of the blue, asking me a similar question during my entire three years of law school. If the person is trying to stir up trouble, you don't have to worry about formulating a sensitive - or even a polite - response. If you're not sure what's motivating the person to ask you such a question, it would be reasonable to respond, "What's your game? Are you being deliberately provocative?"

The answer that the author apparently considers to be both "reasonable" and "taboo" is, "I don't know." Apparently he believes that if he answers, "I'm not aware of any genetic link between race and intelligence, and in the absence of evidence I see no basis to assume that such a link exists," he'll be trapped by the snarky retort, "Ahah! You refuse to rule out such a link!" But then, if he believes somebody is trying to trap him into saying "I don't know," so that they can accuse him of being a racist, he should refer to the prior paragraph.

If he believes that the question is being asked in good faith, or if he feels compelled to respond to a snark, why not point out that the question is inherently flawed? Has he not considered the response, "I'll answer your question as soon as you tell me how to prove a negative"? Or, "Can you categorically rule out the possibility that God exists"? Or, "I'm not going to let you shift your burden of proof - if you believe that there is a correlation between race and intelligence, make your case"? (If the interrogator denies that such a link exists, we're back to, "Then what's your game?" If they assert that such a link exists but can't offer any evidence, it's reasonable to say, "I'm sure you can find somebody who is interested in having this debate with you, but I'm not.")

Meanwhile, Oren Kerr offers advice to a law student who is worried about how to respond "if someone asked me if I could categorically rule out the possibility that Jews tend to be greedy moneylenders". There is consistency here - both supposedly worried law students imagine that they'll be left dumbstruck by an obnoxious interrogator who wants them to prove a negative. No, really, look at the phrasing - the odds are overwhelming that we're dealing with the same individual:

But the funny thing is, I have no idea what anyone would say. The reasonable thing to say has been tabooed.

That's the same closing used in the email to Professor Volokh. (Note: Kerr may have rewritten the first email to illustrate some of the same points I'm making, clever man that he is, in which case my comments about his response are implied by his response.)

Now, I have to say, had somebody asked me such a question during law school, I wouldn't have been particularly worried about being polite, but Professor Volokh suggests approaching the query with "judgment and tact". How about, "If you have any sense of the history of anti-Semitism, you have to know that's an offensive question. If your inquiry is sincere, why did you phrase it in such an inflammatory manner?"

The supposed law student writes, "I am scared to even mention my opinion on the subject to my friends or roommates, or ask them about it" - he imagines himself, out of the blue, approaching his friends and saying, "You know what? I have absolutely no idea whether the stereotypes about Jews being greedy moneylenders are true"? He pictures himself asking his friends, "Do you think Jews are greedy moneylenders"? How - and why - does he imagine himself bringing this topic into a conversation?

Further, if the supposed incoming law student fears being inextricably trapped by the inquiry, "Can you categorically rule out the possibility that Jews tend to be greedy moneylenders", I pity his future clients. Kerr gives the person much more attention than the query deserves, explaining,

some arguments have to be approached with great caution not because of their logic but because of their history.... If you make the argument without any caveats, those listeners [familiar with the history] may wonder if (or even assume that) you share the racist beliefs of the people who made that same argument in the past.

Seriously? Because if our law student in fact has no experience that would suggest that "Jews tend to be greedy moneylenders", rather than giving a dissertation about his awareness of historic stereotypes before equivocating it seems that it would be much easier to respond as described above, or simply to answer, "That has not been my experience". It's difficult to imagine a context in which the interrogator's retort, "Ahah! You didn't disprove it!" would do anything more than make the interrogator look bad. "Disprove what? Your anti-Semitic assumptions?"