Vernellia R. Randall,Teaching Diversity Skills in Law School , 54 Saint Louis University Law Journal 795 - 808 (Spring 2010) (14 Footnotes Omitted)
Interviewer: Thanks for doing this interview. Could you tell us something about yourself?
Professor Randall: Absolutely! I have been teaching law for over 20 years. During those 20 years, I have taught Remedies, Professional Responsibilities, Torts, Criminal Law, Race and Racism in American Law, and Gender and the Law. I appreciate the opportunity that Saint Louis University Law Journal has provided me to discuss not only the importance of teaching diversity skills in traditional courses, including civil rights courses, but also the “how” of teaching diversity. Lawyers practice in a diverse society. Certainly, lawyers need to be able to appreciate and assist people of all backgrounds. As my colleague Thaddeus Hoffmeister said:
There is the obvious benefit . . ., but what about other not so obvious benefits? For example, who is going to be the better first-year associate, the attorney who knows healthcare law or the attorney who knows healthcare law and how it impacts folks based on their race, gender, religion, etc. If I were a senior partner, I would want the latter because that associate can help me work with and bring in diverse clients. In addition, that same associate could also broaden the firm's understanding of certain legal problems. Thus, a lawyer who was acutely aware of diversity issues would be more marketable than one who wasn't.
But perhaps more importantly, lawyers need a broad range of diversity skills in order to practice law effectively and to fulfill their responsibility to ensure a just society.
Interviewer: Right. Right. So what are diversity skills?
Professor Randall: I call them diversity skills for lack of a better term, not because it's a good term. I don't know what else to call them: diversity skills or knowledge. So, diversity skills means incorporating the outsider's views and perspective into the analysis of the law. I'm generally talking about groups that are marginalized by race, gender, class, religion, sexual orientation, or ability. I'm not saying that those are the only ways diversity can be recognized, because you could, for instance, teach diversity skills in terms of geographical or cultural difference. For instance, people in Alaska would have a different perception of the same law from, say, people in Louisiana. Americans have a different perception of the law than the French. Race, gender, class, sexual orientation, religion, and class aspects of diversity tend to have a significant impact on different groups of people.
So, then the question is, what constitutes diversity skills and knowledge? It seems to me that there are a couple of things. Obviously, diversity skills include communication skills: the ability to speak and write persuasively to people from marginalized groups on legal matters. Diversity skills also include critical thinking and knowledge.
First, as lawyers, it is our responsibility to work effectively with the law and with all kinds of groups and individuals. If you take the approach that there is only one law, and one size fits all--here is the law and every single person who comes through the door is going to have that law put on them to wear it (or not) the best they can--you are not teaching students the analytical skills in diversity that they need. Unfortunately, though, that is the way most professors teach the law and lawyering skills.
Except in some limited areas of law (such as discrimination) we ignore race, gender, class, and sexual orientation and we just look at the facts that go to our legal theory. We then assume that the legal theory can be applied to any person without regard to his or her background.
In fact, the people and the problems they bring, and how the law applies to their problems, may be affected by race, class, or gender. So, a lawyer needs to be able to see the potential factors in a person's background that may affect the legal analysis that should be applied and then be able to perform legal analysis that recognizes that these factors may affect the application of law, the choice of the legal theory to apply, the choice of defense, the choice of rules and the application of the rules, and then how to argue it before the court. Diversity skills impact all these interactions with others. It is a skill to recognize that there are differences in the way legal matters should be handled for different clients. It is a skill to understand how diversity matters, and it is a skill to then utilize diversity factors appropriately and effectively in the practice of law. Lawyers are not going to be able to practice effectively if they are not taught these skills.
Another diversity skill is the ability to analyze how certain groups are affected negatively by the law or the lack of law. Lawyers need to understand that bias exists and they need to know how to recognize bias in the law and in its administration.
Interviewer: What do you mean by “traditional courses?”
Professor Randall: What I mean by “traditional courses” are substantive courses, stand-up courses, doctrinal courses. Law school courses tend to fall into three categories:
• Substantive courses: Contracts, Civil Rights, Property, Corporations, Agency and Partnership, Health Care Law, Remedies, Professional Responsibilities;
• Clinical courses and “skills” courses: Externships, Moot Court, Interviewing and Counseling, Negotiation, Alternative Dispute Resolution;
• Seminar courses: a lot of them tend to be “the-and” courses. You know, Law and Humanity, Law and Education, Race and Racism and the Law, Gender and the Law.
Interviewer: So how does teaching diversity skills relate to the category of courses?
Professor Randall: Of the three categories of courses (traditional, clinical, and seminar), in terms of diversity skills, clinical courses tend to deal with them more as an integral part of what they are teaching. Clinical courses often address diversity communication skills, but not diversity analytical skills.
Whether seminar courses tend to deal with diversity skills as an integral part of the course depends on the nature of the seminar course. So, certainly “Race, Racism, and the Law,” “Gender and the Law,” and “Disability Law” may naturally deal with diversity skills more than say, an intellectual property seminar. So it depends more on what the substantive area is. On the other hand, traditional or doctrinal courses almost never deal with diversity skills as an integral part of the teaching.
So, my argument is that diversity skills are essential to being a good lawyer, essential to the community, and are thus important to the student, and they should be important to the teacher. Like teaching writing skills across the curriculum, we should be teaching diversity skills across the curriculum. We shouldn't rely on any particular course to teach these skills. All of us should be teaching these skills.
Interviewer: So, how do you teach diversity skills?
Professor Randall: To start, the teaching of the skill requires the teacher to get the students to recognize that differences matter.
Interviewer: How do you do that in a large, traditional classroom?
Professor Randall: Well, this is the hard work for the faculty. To start, it is not going to happen if the teacher hasn't engaged in thinking about it. As with other skills, to teach it, you have to have it. Unfortunately, because most law teachers never learned the skills in college or law school, they will have to acquire the skills themselves. In making the decision to teach diversity skills, fortunately, a teacher doesn't need to be an expert.
So, teachers need good course planning techniques. That is, they must know what their own goals are and what they are trying to achieve in that classroom. If teaching diversity skills is important, it should be a part of the stated goal for the class.
And then the teacher has to make this clear to the student. For instance, my website states my philosophy of teaching. I've been doing this since I've been teaching. My philosophy has the following three major components: (1) I want to have to have an educationally sound pedagogy; (2) It's my responsibility to teach substantive law. Students are in my course because they want to learn remedies, criminal law, contracts, whatever it is, and I have a responsibility to make sure that they do; (3) Finally, it is my goal to engage in a diversity-conscious legal pedagogy. Here are the goals that are part of my syllabus:
C. Teaching Objectives #3: Diversity-Conscious Legal Pedagogy
Class, disability, gender, race, and sexual preference issues are such an integral part of our society (and the legal profession) that we often overlook how the law has different effects on individuals with different backgrounds. In a diverse society, such as ours, awareness of how class, disability, gender, race, and sexual preference are affected differently by the law is essential. This is true for defendants, plaintiffs, lawyers, jurors, judges, or law students. Diversity awareness should be a normative part of the value system of the practicing attorney. An education that is aware of diversity:
• Explores how racial, ethnic, gender, class, disability, cultural, and sexual orientation are related to and impacted by the structure of law. In particular, it illuminates the connection between racial and gender issues and the values, interests, rules, and theories that appear to be neutral, but are in fact a representation of the values of the dominant culture;
• Broadly frames classroom discussion so that we step outside the doctrinal bounds of the law to critique the rules and legal practice; and,
• Focuses discussion on problems, interests, and values that reflect a broad range of perspectives.
Interviewer: So, the very first thing to do is be sure students are aware of your diversity conscious pedagogy?
Professor Randall: Yes, I have integrated it into my courses' goals and objectives. I have made this clear to my students. I have them read the syllabus and acknowledge that they are aware of my pedagogy and don't have any questions.
Syllabus Survey Question
I have read the section on Philosophy of Teaching. [Yes][No]
I understand that this course focuses not only on teaching substantive law, but also on diversity issues in remedies.
I [do] / [do not] have any questions.
Teaching diversity skills cannot be happenstance. Don't try to sneak it in by bringing in a case here or a comment there. Doing that is like trying to teach a skill by not approaching the skill straight up and saying that today we're going to learn knitting, but what you are doing is teaching them basketball, but every now and then you throw in something about a stitch.
Such an approach is not only ineffective, but is disconcerting to the students. Students get justifiably upset because they think it's coming out of the blue. They do not see or understand the reason for teaching diversity skills and knowledge. So my very first step is to make sure everybody understands why I am teaching diversity skills and knowledge, why it's important to them, and that it will be well integrated into the class.
Having said that, the next thing I have to do is choose my materials wisely. Students are less likely to challenge the integration of diversity skills if the materials have cases and materials that address some aspect of diversity. If a casebook never, ever mentions anything about diversity, then I will be defying the casebook, and students are more likely to believe that I am pushing a political agenda.
Interviewer: So, you have found that there are casebooks out there that address diversity?
Professor Randall: To a limited extent. Not as many as I would like. But I make that the criterion more than anything else. I will choose casebooks that I don't care for that much, maybe they cover things that I don't think necessarily need to be covered, but if they cover diversity, even in a limited way, I will choose them.
If traditional legal theory is not quite covered in the casebook, I can add a reading on that and no one is going to question me about it. The students are not going to think that I'm trying to politicize them.
Whatever course I am teaching, I take all the books and evaluate them on how they deal with diversity skills and knowledge. I have been successful in getting the authors of some of my casebooks to add diversity-related exercises to the casebooks I use.
Interviewer: So, you said that it's a specific goal at the beginning of the semester and you choose material that incorporates diversity. What specific steps do you take throughout the semester to ensure that you are teaching diversity skills?
Professor Randall: Once I choose the book, what I want students to do is to recognize how the law for that course will be affected by these diversity factors. In achieving that, I ask specific questions. I give them credit when they raise diversity issues without my having to point them out. If you are going to teach diversity skills you have to make progressive technological choices. You can do it in a large, traditional classroom where you just ask a question of six people out of 100. Let's say that I was teaching Professional Responsibility and talking about the rule on confidentiality and communication. I may ask them a specific question within a small group.
In that case, actually thinking about how diversity is going to affect people requires students to do more than listen. In the traditional large classroom, people listen more than they think.
Interviewer: That's true.
Professor Randall: You say they are supposed to be thinking. Well, they are thinking about what the person is saying. They are not thinking independent thoughts, because they have to listen. So, the person who is asked the question is the person who is thinking about the question. Everyone else is just listening to and thinking about the answer. If you want people to think about the question, you have to structure the classroom so that it will force them to think and answer the question, which is why I use small groups and a course-management tool called Moodle. Moodle allows me to ask a discussion question in an online forum and require everyone to answer before they can see anyone else's response. I have found the quality and quantity of participation to be significantly better than in-class discussion.
Interviewer: But isn't having small groups difficult in large classes?
Professor Randall: It definitely takes more planning and the professor spends more time managing the environment, more a guide on the side than a sage on a stage, but I have done small groups with 200 people. I have gone to conferences, and people have said “we can't do the small groups in such a large classroom,” and I will reply “I'm going to do a small group exercise right here.” I put them into small groups. I give them a problem and I have them talk among themselves. I have them return and then we have a large classroom discussion. So, the size of the classroom doesn't foreclose the ability to use small groups.
Of course, strategic decisions need to be made. If you want to make sure that every single person talks in a short amount of time, people have to be in groups of no more than four. The larger the group, the more time you have to give to the discussion. If you go over four people, you are going to have free riders: people who won't say anything, because there will be enough other people talking. It is hard to not talk in a group of four. You become very noticeable if three people are talking and you aren't. If you put them in groups of three, that's a good group size and it takes less time, maybe five to seven minutes instead of twenty. In seven minutes, everyone can talk two minutes. If you want, you can do one-minute exercises, with “pair and share.” My point is that teaching diversity skills requires a different pedagogical approach from just reading cases and calling on six or seven people in a 50-minute period. In teaching diversity skills you need to have students analyzing legal situations for the diversity issues (problems), and get students talking and critiquing each other (small groups).
Interviewer: So, it would be a problem relating to whatever substantive course you are teaching and it would raise a possible diversity issue?
Professor Randall: Exactly. But even if the problem does not expressly raise diversity issues, the students are still expected to raise any relevant diversity issues.
Interviewer: How are you able to assess students' mastery of the skill?
Professor Randall: Well, I give students credit for raising diversity issues as part of class participation. Class participation counts for 20% to 30% of the grade.
Students do self-evaluations, and that is another way I raise the diversity issue and make them aware of its importance. The self-evaluation form, which I will include here, has a top grade of 93, 87, and 83. The distinction between a 93 and an 87 is raising diversity issues. You can get an 87 without raising diversity issues. You cannot get a 93 without raising diversity issues. So, if you come to class, I'm not going to penalize you in terms of failure to raise diversity issues, but you are never going to make an A in my class without raising them. I think diversity is that important. I let students know that to get an A in this class, they are going to have to think about and raise diversity issues. Here is an excerpt from my class participation evaluation form:
Evaluate Your Class Participation for Today
Remember: don't forget to award the Karma Points!!
93 I was thoroughly prepared. I significantly contributed readily to the conversation but didn't dominate it. I made thoughtful contributions that advanced the conversation. I showed interest in and respect for other views; and I participated actively in small groups; and I either took notes or reported for the small group. I raised diversity issues related to the topic at hand. My participation was exceptional.
87 I was thoroughly prepared and contributed readily to the conversation. I contributed occasionally without prompting. I showed interest in and respect for others' views. I participated actively in small groups. While my contributions may have been less well developed, they nevertheless advanced the conversation without being hostile or overtly rude. I raised diversity issues related to the topic at hand. My participation was very good and above average.
83 I was prepared, but I did not voluntarily contribute to discussions and gave only minimal answers when called on; I did not raise appropriate diversity issues. Nevertheless, I showed interest in the discussion, listened attentively, and participated actively in small groups. My participation was good and average.
I also have students do weekly reflections on what they learned and I ask a specific question about diversity.
Interviewer: I would think students would have a difficult time, if they have not been explicitly taught that skill before.
Professor Randall: Yes, of course, that means that I have to train them because in the beginning, I had one student who thought that he was raising diversity issues just by pointing out potential discrimination. I replied: “No, no, no. That could be a diversity issue if discrimination is a part of the problem, but what we're talking about is how the law affects different people differently around the issues like race and class and how the law should be changed, if it should be changed.” Just pointing out that certain people are discriminated against is not a diversity issue within the context of, for instance, my Professional Responsibility course, unless you want to talk about why there is a lack of diverse legal representation within the legal profession, which then puts a responsibility on lawyers as to how they handle their professional responsibilities. So, students are evaluated on a daily basis; they evaluate themselves. I have an online class participation component to all my courses because I find that I can ask specific questions and have everybody think about it. I do a lot of my diversity stuff there.
Interviewer: That gets me to my next question. Have you found students, for lack of a better word, who are a little uncomfortable discussing these issues in open forum? If so, how do you counteract that?
Professor Randall: Students' reception to being taught diversity skills in traditional courses is split. Some students resent having to discuss these issues. I know students find it difficult to do this because they have said to me that before taking my courses they had never had to do this.
In any class I will have a couple of students whose majors were in areas where they were required to think about diversity, but that doesn't mean that they thought about other perspectives outside of their major. They may not have thought about disability or religion. Religious studies majors, for example, may think about how different religions impact the world differently, but they haven't actually thought about how different racial groups may look at religion differently. So, I find a huge amount of discomfort. And one of the downsides for a faculty member is that if you have an elective course, it affects the number of students that may take the course because you are being explicit. You are not trying to sneak it in. So, because of that, they decide not to take this course.
On the other hand, if you have a required course, then you may have a large number of students who will resent it because they think you are politicizing them. Because of the failure to integrate the teaching of diversity skills across the curriculum, many students believe that it is not an appropriate part of the course. In my required courses, about 50% of the students don't agree with the following statement: “Discussion of race, gender, socioeconomic class, sexual orientation, religion, and other diversity issues is an important part of understanding this substantive area of law.” Some students explicitly state their objections:
No. This professor is incompetent and an embarrassment to the teaching profession. She has forced her propaganda down our throats and does not allow people to disagree. Way too much busy work on diversity which [sic] is NOT relevant to the MPRE. This was a required class and our money should be refunded to us with an apology. Worst teacher ever in the history of teaching. By not using anonymous grading she held the class hostage to her illogical demands.
Others, I believe, are more implicit and demonstrate a level of anger that is not commensurate with the structure of the course:
I truly believe this class was a complete waste of my money. I do not understand how Prof. Randall ever got tenure (?) and is able to teach at UDSL! By far, worst class and professor I have ever had in law school, college, K-12!
Because doing diversity skills education can affect student evaluations, to the extent possible, you need to have your dean and faculty on your side. You need to make sure you articulate your objectives clearly. Well, I shouldn't say “on your side.” You need to make sure that everyone in authority knows what you are doing and knows why you are doing it, rather than wait until a student complains.
You need to say to your dean: “Here's my philosophy of teaching.” What I have done for over 20 years is included in all my materials, in my evaluation, in my pre-tenure materials my philosophy and approach on teaching diversity skills.
I'm always surprised, though, because no matter how explicit I am, I get students who take the course not knowing what the course is about. I have tried over the years to make sure that they know, because I don't want people being surprised. I have students not only read my syllabus, but I have them fill out a questionnaire in which they say they've read my syllabus and that they have no questions. Part of my questionnaire is: “Did you read my philosophy of teaching? Did you understand the component parts of my philosophy of teaching, yes or no?” “Do you have any questions, yes or no?” Day one, students know that diversity is a part of my teaching. Nevertheless, I get students who are angry about it and they complain to the dean. So, explicitly engaging in diversity skills training is not for the faint of heart.
Interviewer: Do you think it's the result of race and gender?
Professor Randall: My being a black woman has a lot to do with it. My Afrocentric dress affects students' reactions. Being six-feet tall with a commanding voice also contributes. For many students it is the first time they have had an African-American woman teach them. That's disconcerting to them, and then to be the only teacher addressing diversity skills issues delegitimizes the content for them. They think that if diversity skills were so important, then the white males in other courses would be doing it. They think that I am abusing my authority, using my position to promote my own political views.
Interviewer: Really? That's why I was interested in the type of feedback you've received after the course.
Professor Randall: Generally it's easy, and you pointed this out to me once already, to focus on the most immediate, most negative feedback. But given the demands of my courses, the feedback is positive. I'd say half and half in a course in which people have to take it. Half the class is thankful and thinks they learned skills that they know are crucial and that they have not learned anywhere else. I have had students come back to me or e-mail me and say that they are really learning that they need these skills even more once they get out and practice. In elective classes, overwhelmingly, the person who does not think it's important is an exception. Because people already want, acknowledge, or know that there's a need for this, they select me and they are open to discussion of diversity issues. I find evaluations where people self-select my course to be really high. In the last couple of years, I have been doing my own evaluations and I ask them whether they think diversity is an important component of what should be taught and what they thought about the mix in my course. Do they think I do too much or too little? Overwhelmingly, they have said it's about right. So, they have it integrated in the book. The books aren't these heavy diversity books; it's just that periodically these issues are raised. On every lesson, especially online, there will be at least one diversity question. They get better grades if they raise diversity issues themselves, and so they become conscious of thinking about that. Then I give them a large diversity assignment before the end of the semester that is 10% to 15% of their grade.
Interviewer: Give me an example of a large diversity assignment.
Professor Randall: In Professional Responsibility, they have to critique the ABA model rules on an aspect of diversity and discuss how well the ABA model rules deal with the diversity issue. So, I have people looking at disability, immigrants and communication skills, religion, and religious lawyering. I let them select the topic. I give them a bibliography of potential law review articles and tell them to select a topic on which to critique the ABA rules. That, in and of itself, is a thinking skill because they have to think about what is an appropriate topic for this course. For Criminal Law, we actually had case materials where I had them look at a particular death penalty case and talk about race. For Health Care Law, they are going to have to write a paper on racial health disparities and how the health care reform is going to eliminate them. Sometimes the assignment is to look at a narrow part of the law in a specific group, and sometimes the assignment is to look at the whole scheme of the law and analyze the whole scheme based on the diversity aspect. It just depends on how, as a teacher, I'm feeling or what I'm thinking, and what's going on at the time that makes me think this is what we need. It's a part of their assignment from the beginning. I'm working on Remedies right now. The problem is that I have not really found a good Remedies book, so I don't have the materials and there hasn't been a lot written about it. This has probably been the most difficult course that I have had to work with in terms of diversity issues. Because I'm only in my third year of teaching Remedies myself, I am still trying to figure it out because it takes a certain level of substantive expertise on the part of the teacher to be able to analyze where the diversity issues will come in unless they have a book to help. For instance, there is a really good article on corporate law that says “here is where you can think about truth and diversity issues.” A corporate law teacher can read that article and not have to be as tuned in to diversity. The most I have in Remedies right now is that there have been some discussions of damages and how damages are impacted by race and gender differences. It's a start. If you want to incorporate diversity skills in your substantive course, you do have to have baseline knowledge of the subject.
Interviewer: So a teacher has to understand what she is teaching and then she has to step back so that she can illuminate this for her students.
Professor Randall: Exactly. But you need not have full knowledge or understanding or expert diversity skills. You have to realize that you are going to be teaching a skill that you are learning. You weren't taught it, and so when teaching skills and knowledge that you are learning, you are literally going to be one step ahead of your students in the beginning. That's like teaching law, because when you first teach law you are just one step ahead of your students. You don't really have that wealth of knowledge that comes from having taught for six, seven, or ten years. You went to law school, you took one course in torts and now you are teaching torts. So, being one step ahead should not make you feel uncomfortable, but you do need to realize, for a really new teacher, you may want to wait for your second or third year before you start trying to integrate diversity skills. I didn't wait. I could teach other people even though I didn't know the substantive law all that well, because I already had strong diversity skills in terms of critical thinking about how the law affects others. That was largely self-taught. You can learn these skills on your own, just by saying “I'm going to force myself to ask the question, how does civil rights law affect people of different genders, races, sexual orientations, religions, classes, etc.” You know, that's the first step, and then you can get more specific as you go into the course.
Interviewer: Thank you for taking the time to do this interview.
Professor Randall: I hope that you and the readers find the interview helpful.
B.S.N., University of Texas; M.S.N., University of Washington; J.D., Lewis and Clark College Northwestern School of Law; Professor of Law, University of Dayton School of Law.