Law school exams often present legal conundrums ripped from headlines of the day, but one UCLA law professor is apologizing for basing a test question on what is apparently a taboo subject -- the fallout from the police shooting of a black man in Ferguson, Mo.

Professor Robert Goldstein said the exam question was designed to test students’ ability to analyze the line between free speech and inciting violence. It cited a report about how Michael Brown’s stepfather, Louis Head, shouted, “Burn this bitch down!” after a grand jury decided not to indict Ferguson Police Officer Darren Wilson in the death of Michael Brown.

The question then asked students to imagine that they are lawyers in the St. Louis County Attorney’s office and had been asked to advise the prosecutor “whether to seek an indictment against Head” for inciting violence. The exam reads:

“[As] a recent hire in the office, you are asked to write a memo discussing the relevant First Amendment issues in such a prosecution. Write the memo.”

But students complained, and writer Elie Mystal at the popular legal blog “Above the Law” opined that the test question was “racially insensitive and divisive.” Mystal also incorrectly alleged that the question asked students to “advocate in favor of extremist racists in Ferguson.”


Goldstein has apologized for putting the question on the test and has promised not to grade the question.

“I clearly underestimated and misjudged the impact of this question on you. I realize now that it was so fraught as to have made this an unnecessarily difficult question to respond to at this time. I am sorry for this,” he wrote in an email to his students that a UCLA spokeswoman forwarded to

He defended his intentions in posing the question, making reference to both the Ferguson incident and a New York grand jury's decision not to indict another police officer on the death of an unarmed man placed in a chokehold.

“As with many of my exams in this upper-level elective class, questions may be drawn from current legal issues in the news or from recent court reports. This helps make the exam educational and relevant,” he wrote in his email to students.


“I recognize, though, that the recent disturbing events and subsequent decisions in Ferguson and New York make this subject too raw to make it a useful opportunity,” he added.

Other law professors say there should be no need to apologize for such a straightforward exam question.

“If there are some law students who are such delicate flowers that merely being asked to assess whether certain controversial speech that's been in the news is constitutionally protected, in a class covering the First Amendment of all things, then maybe they should find another profession,” David Bernstein, a law professor at George Mason University School of Law, told

He also noted that tossing out the question after-the-fact on a final exam was unfair to any students who might have spent a lot of time answering the question.

“I think the professor erred by retroactively tossing out the exam question because of these complaints," he said. "Law school exams are timed. Some students might have spent more time on this question than on other questions, some might have done the opposite.  Tossing out the question is grossly unfair to the former students,” Bernstein said, adding that the real problem with the question was that students who had been following the news closely would have an unfair advantage.                            

“The actual outrage is wildly misplaced,” he said.

The author, Maxim Lott, can be reached via or at