CAMPUS SPEECH PART FOUR – It apparently does hurt to ask

The First Amendment challenges on colleges campuses are not confined to challenges to guest speakers, or students taking to common areas to challenge the status quo. Occasionally they arise in the classroom itself.

Reginald Robinson is a professor at Howard University Law School. On an Agency law exam, Professor Robinson posed a hypothetical question designed to test his students on the issue of an employer’s potential liability for acts of an employee. That seems harmless, right?

But the trouble began when the employer worked at a day spa that offered “Brazilian Waxing.” The Brazilian Wax process is a method for removing all or most pubic hair from the client. In the hypothetical the client fell asleep during the procedure and awoke to accuse the employee of improper touching. The question indicated that in discovery of the client’s lawsuit, it was established that the employee had not touched in client in any manner different from the manner described to the client before the procedure began. And the question was whether, in light of those facts, the employer would prevail on a motion to dismiss.

Apparently, some students in the class complained about the question. The gist of the complaint centered around the following issues:

1. use of the word “genitalia,”;
2. the students’ suspicion that the question was crafted to reveal personal details about themselves;
3. their belief the revelations had a negative impact on them;
4. the contention that the exam scenario wasn’t necessary to teach the subject.

I don’t intend to be dismissive here, but I do have some initial reactions:

1. Item 1 – use of the word “genitalia.” I’m having a tough time with this, given that we are talking about law school and not sixth grade. The fact is, real life cases occasionally deal with incidents that happen south of the waist. And if this is too much for some law students to handle, I think the problem lies not with the professor.
2. Item 2 – the question was used to reveal personal details about the students. I’d be more troubled by this allegation if the question was an essay. But it is a multiple choice question. I had no idea what a Brazilian Wax was before I read the article and I answered the question correctly (spoiler alert —
   The answer is B). It’s not clear to me how responding to the question would reveal anything about the examinee.
3. Item 3 – see response to item 3 above.
4. Item 4 — the exam scenario wasn’t necessary to teach the subject. I suspect Professor Robinson used the Brazilian Wax fact pattern because the nature of the procedure is more likely to elicit an unreasonable touching claim than a less intimate procedure. Given the issue, it’s hard for me to see how this was not necessary.

I have no idea if Professor Robinson has a history that somehow influenced the school’s decision. But standing alone, this seems like a huge overreaction.