Excerpted From: Bernard K. Freamon, ABA-Mandated Instruction on Racism and Recent State Legislation Banning Such Instruction in University Classrooms: “Jim Crow” Redux, 29 Roger Williams University Law Review 11 (Fall, 2023) (93 Footnotes) (Full Document)

BernardKFreamonOn May 25, 2020, George Perry Floyd, Jr., a forty-six-year-old African American man, was murdered in Minneapolis, Minnesota by Derek Chauvin, a forty-four-year-old white police officer. A bystander's cellphone video of the events leading to Floyd's death showed that Chauvin, effecting the arrest of Floyd for allegedly using a counterfeit twenty dollar bill in a purchase, pressed his left knee into Floyd's neck and placed his right knee on Floyd's back, maintaining this restraint for nine minutes and twenty-nine seconds. Evidence showed that when Floyd showed signs of extreme distress, later lapsing into unconsciousness, Chauvin did not render medical attention nor did he allow anyone else to do so. Floyd died and Chauvin was convicted by a jury in the Hennepin County District Court of second-degree unintentional murder based on the underlying felony of third-degree assault arising out of Chauvin's arrest of Floyd.

These events had a cataclysmic impact on discourse on race and the law in the United States and, indeed, around the world. News about the murder of Mr. Floyd, particularly copies of cellphone videos of Chauvin's actions during the arrest, brought the issue of racist mistreatment of African Americans in policing and in other contexts to the front and center of this discourse. There were weeks of demonstrations and, in some cases, unrest and violence, in many American cities and large protest rallies in cities around the world. Many institutions, including state governments, municipal governments, universities, civil society groups, bar associations, secondary and elementary educational institutions, and others, undertook a period of sincere introspection on their role in fostering racism in American life. American law schools--at the center of the education and training of lawyers in the United States--also accepted responsibility for a similar undertaking, and many began proposing concomitant reforms in the coursework being offered to students seeking a legal education.

On February 14, 2022, the Council of the American Bar Association's (ABA) Section of Legal Education and Admissions to the Bar adopted amendments to its Standards and Rules of Procedure for Approval of Law Schools. “The Council is the governing body of the Section of Legal Education and Admissions to the Bar, and it also serves as the United States Department of Education recognized accrediting agency for J.D. programs in the United States.” The Standards and Rules of Procedure for Approval of Law Schools generally determine what should be a part of the substantive content of course work required to obtain a J.D. degree from an ABA- approved law school. The Council-approved amendments to Standard 303(c) of the Standards and Rules mandate, in pertinent part, that an ABA-approved American law school “shall provide education to law students on bias, cross-cultural competency, and racism: (1) at the start of the program of legal education, and (2) at least once again before graduation.”

What does this amendment mean in application? The drafters of the amendment offered interpretive guidance suggesting that Standard 303(c)'s requirement may be satisfied by, among other things, including a discussion of bias, cross-cultural competence, and racism in orientation sessions for incoming students, class lectures, coursework, or “other educational experiences.” “While law schools need not add a required upper-division course to satisfy this requirement, [they] must demonstrate that all law students are required to participate in a substantial activity designed to reinforce the skill of cultural competency” and students must also be instructed on “their obligation as future lawyers to work to eliminate racism in the legal profession.”

Law schools have responded to the mandate of Standard 303(c) in a number of different ways. Several have established institutes or centers encouraging research and scholarship on the relationship between race and contemporary American law. These institutes and centers have attracted a number of major scholars and researchers who enliven the discourse at their home schools and elsewhere and publish articles advancing their research. Other law schools have offered a menu of courses, all touching in various ways, on the subject of race and its relationship with American law. Typical content of such curricular menus includes courses on American Legal History, Critical Race Theory, Civil Rights, Immigration Law, Slavery and Human Trafficking, Prisoner's Rights, Post-Conviction Remedies, and seminars in aspects of American Constitutional Law. Students are encouraged to, or, in some law schools, mandated to, choose one or more of these courses as part of their curricular decision-making to fulfill their graduation requirements.

Roger Williams University School of Law took a more aggressive stance in response to the ABA directive. Its faculty determined that it would offer a mandatory course entitled Race and the Foundations of American Law and require all students to enroll in the course during their second year of law school. According to the recently published vision statement for this course, the course curriculum “is divided into three sections: (1) Origins of White Supremacy: Lessons from History; (2) Systems That Maintain Racial Hierarchy; and (3) Remedies.” The first section on white supremacy “looks closely at how maintaining or creating racial hierarchy was a central tenet in the development of [American] legal doctrine.” This section covers slavery and its legacy; colonialism, including the genocidal treatment of the Native American populations; and the American Civil War and its aftermath. The next section examines “[s]ystems that [m]aintain [r]acial [h]ierarchy.” This portion of the course covers contemporary examples of racism in our legal system, including “voter suppression and gerrymandering, mass incarceration, policing and surveillance, and segregation in education and housing.” The curriculum is designed to help students explore “how current legal systems continue to maintain racial hierarchy while using less explicit language of discrimination or de jure segregation.” The course's last section on remedies “takes a critical look at how racial hierarchy in the law might be dismantled and impediments to those efforts.” This section considers “affirmative action, reparations, truth telling, efforts to reform the legal system and legal education ... [, and] the concept of anti-racist lawyering.”

Roger Williams University School of Law's aggressive approach to the ABA directive came to the attention of the organizers of the Association of American Law School's (AALS) 2023 annual meeting. The theme of the 2023 annual meeting, put forward by Erwin Chemerinsky, Dean of the School of Law at the University of California at Berkeley, considered “How Law Schools Can Make a Difference.” To that purpose, the Association sponsored a half-day symposium program at the annual meeting entitled “How Law Schools Can Make A Difference: DEI Work in the Curriculum, in the Classroom, and in the Courtroom.” The symposium was led by several members of the Roger Williams University School of Law faculty and featured opening addresses by Dean Chemerinsky, Dean of Berkeley Law; Gregory Bowman, Dean of Roger Williams University School of Law; and Carmia N. Caesar, Associate Dean for Justice, Equity, Diversity, and Inclusion at George Washington University School of Law. The first panel in the symposium was concerned with “DEI Work in the Curriculum” and included presentations by Danielle M. Conway, Dean of Pennsylvania State University--Dickinson Law; Nadiyah J. Humber, Associate Professor of Law at the University of Connecticut School of Law and one of the architects of the Roger Williams University School of Law's Race and the Foundations of American Law course; Claire Donohue, Assistant Clinical Professor at Boston College Law School; and the undersigned. The presentations all had something in common: each of the presentations addressed the promises and pitfalls of law school efforts to include instruction on racism, the legacy of white supremacy and racial discrimination in American legal history, and the current manifestations of this legacy in the American legal system.

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Must ABA Standard 303(c) Be Applied to All American Law Schools?The answer to this question is clearly yes, but, as this article has shown, state legislatures in several states are seeking to aggressively limit the reach of Standard 303(c) in law schools under their jurisdiction by adopting legislation that would blunt or prohibit the teaching required under the standard. Professors, students, the ABA, progressive law school administrations, and perhaps local and state bar associations have a long road of litigation ahead in order to be able to effectuate the changes Standard 303(c) requires. I humbly suggest, in addition to pursuing the First Amendment arguments that are now being litigated in the Florida courts, these professors, students, and other litigants consider employing the Thirteenth Amendment as a weapon against “the pall of orthodoxy” that some state officials want to impose.

B.A., Wesleyan University (1970); J.D., Rutgers, The State University of New Jersey (Newark) (1974); LL.M., J.S.D., Columbia University in the City of New York (2002) (2007). Professor of Law and Director, Race and the Foundations of American Law Program, Roger Williams University School of Law.