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By Pete Kushibab, General Counsel, MCCD
Despite our understandable fears in what many believe to be a lawsuit-happy society, the chances are pretty remote that an instructor--or college--will be sued over what the instructor says during class. The courts have told us,
however, that if a teacher's classroom speech creates a discriminatory environment for students, the school may be liable for damages.
What can an instructor do, then, to try to minimize that risk . . . especially when the substance of the class might
invite discussion of some sensitive topics?
One way might be the judicious use of the course syllabus--that document an instructor gives students to advise them of grading policies, classroom protocol, and other expectations. The instructor has virtually unilateral discretion in deciding what to include in the syllabus. Accordingly, if an instructor knows that class discussion might touch upon some sensitive areas--and that such discussion is germane to the subject matter--a warning in the syllabus to that effect may not be a bad idea.
No course syllabus can serve as an ironclad protection against legal action over something the instructor has said to students. Still, a sufficiently detailed warning about potentially controversial subject matter or terminology might help to show:
Good faith. Such an admonition could demonstrate that otherwise noxious discourse was not intended for any illegal purpose, but rather, merely to teach the class effectively.
Relevance. Speech that may be displeasing can be best defended if its use is relevant to the course subject matter. Full disclosure to students at the beginning of the term may reinforce that relevance.
Fairness. Most would agree that it's good to give students fair notice of what they can expect in their class. If a class promises to feature controversial discussions, a student likely will want to know of that prospect from the very start.
There's no substitute, of course, for becoming familiar with what courts presently hold regarding impermissible classroom speech; and no syllabus language will justify objectionable speech that is either not germane to course content or simply illegal.
Nevertheless, a judge is typically willing to leave academic decisions to the experts. The right language in a syllabus might serve to demonstrate that you are indeed a member of that group.
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