William J. Carney (left) and Paul Zwier. (Photos: John Disney/ALM and courtesy photo)

A retired law professor has called on the American Bar Association and the American Association of University Professors to censure Emory University and place it on academic probation over its treatment of a law professor for his utterance of a racial slur.

In defending suspended Emory law professor Paul Zwier, professor emeritus William Carney asked that the university be disciplined after he said the law school and university administrators punished the law professor—and violated his academic freedom—for using a racial epithet in a context that was neither gratuitous nor directed at an individual as a slur.

Carney also included lengthy exhibits with his letter documenting Zwier's own account of how he used the slur in a torts class while discussing an offensive battery civil case. The professor later used a variation of the slur in a private conversation with a black student, who had called for his resignation, during which Zwier shared that he had been called a “n—-r lover” when he was young because of his parents' support for civil rights, Carney's letter said.

Zwier first used the racial epithet during the first week of his torts class last August while discussing a 1967 case involving a black NASA employee who was denied service at a Texas restaurant. According to the litigation that followed, the restaurant manager “shouted that he, a Negro, could not be served in the club” as he snatched the plate from the black man's hands, according to Carney's letter.

In an open letter to Emory faculty in August that Carney included as an exhibit, Zwier said that, because the NASA employee died before trial, he always wondered whether a racial slur was actually directed at the NASA employee.

“My intent was to raise the racist slur as a possibility to set up the case we would read the next week, where the 'N word' was used again,” Zwier said. “The use of the word was not gratuitous. Nor was I trying to surprise the class or make it more provocative. The 'N word' is an important part of the discussion of offensive battery and intentional infliction of emotional distress.”

In calling for Emory to be put on academic probation, Carney noted that, when the law school dean sent an open letter to the Emory law community last August condemning Zwier and later suspended him, “There was no discussion of the context or teaching purpose of the use of the word.”

“It is clear that Professor Zwier used the 'N word' in a teaching context, discussing how cultural changes have made the use of certain words potentially actionable without physical context,” Carney said.

Carney also cited ABA standards that “vigorously protect” academic freedom in the classroom and AAUP standards that similarly extend First Amendment protections to potentially offensive speech if it is germane to the subject matter being taught.

“Professor Zwier's use of language falls squarely within that standard,” Carney said.

In his own letter to the faculty, Zwier said his purpose was to discuss “how tort law evolves away from requiring contact for battery into intentional infliction of emotional distress. … As my past torts students can attest, I often lead a discussion around the concept of 'fighting words' and how tort law usually deals with them.”

“To be clear, the use of the word was not directed at a student,” Zwier said. “It was used once. The purpose of my discussion of the 'N word' was never to normalize its use. My purpose was just the opposite. I hoped to show torts students how explosive and harmful words can be in so many setting[s] and that words alone can qualify, without contact, as an intentional tort.”

Carney's letter also documented what he suggested was a later attempt to entrap Zwier in what he thought were private conversations with two students, one who is black and the other who is white. The black student reported his version of that conversation to the white student, who recorded Zwier in a separate conversation, and to the law school dean.

Carney cited Zwier's recorded account of his conversation with the black student, in which Zwier explained that he, too, had been subjected to a version of the slur as the child of parents who promoted civil rights.

“I thought we were talking about sharing responses—sharing stories of our backgrounds, and where we were from,” Zwier said in the statement Carney cited. “It turned out he was not at all interested in that. And in my description of my own background, and my own experiences, I talked to him about the word and how it was used against me, calling me a N-word lover, all right? And he turned around and took that conversation and said to other students that I again used the word; all right?”

Zwier said that he uttered a variation of the racial slur often reserved for white people, in part because the student used the offensive racial epithet first.

Carney observed in his letter that, “When Professor Zwier perhaps naively assumed a good faith conversation with this student, for the student to use the 'N-word' in suggesting bias in Professor Zwier's background, and for Professor Zwier to inform the student of his parents' civil rights background and that he was called a 'N-word' lover by some contemporaries, suggests the purpose of the student's visit was entrapment, rather than good faith understanding. In any event, for a student to use the term and then complain about its use by the respondent should mean the student is estopped to complain about this encounter.”

After students complained that Zwier used the slur in class and staged rallies calling for his removal, the law school's interim dean, James B. Hughes Jr., barred Zwier for two years from teaching any mandatory first-year classes in which students don't have the ability to choose their professor.

Zwier has issued two separate apologies for using the slur and agreed to revise teaching manuals for his textbooks to include suggestions on how professors may avoid offending students when addressing “racially sensitive” matters. He also agreed to undergo sensitivity and unconscious bias training.

In November, after the black law student complained to Hughes that Zwier used the epithet a second time, the dean placed Zwier on administrative leave amid rallies calling for his immediate termination.

Emory spokeswoman Laura Diamond said, “We respectfully disagree with Professor Zwier's characterization of the events, and we are engaged in dialogue with him about this matter.” She did not address Carney's request that Emory be censured and placed on probation.

Zwier's attorney, Lee Parks of Atlanta's Parks Chesin & Walbert, said he had not seen Carney's letter and was unaware of Carney's call for Emory's censure. But, he said, “What happened to Professor Zwier at Emory is a tragedy. I hope they fix it.”

He said that Zwier has been barred not only from classes but from the Emory campus and that Emory administrators have attempted to force Zwier's resignation.

Attempts to mediate a resolution have failed, Parks said.

“The point is, this began as an effort to teach how words can be offensive batteries,” Parks said. In attempting to explain in a law school class why it would be against the law to use a racial slur, Zwier “was basically kicked out,” the lawyer added. “How do you teach prejudice … if you don't demonstrate the horrors of it?”

“Academic freedom is a pretty strong thing. Not at Emory,” Parks concluded.

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