Sunday, November 17, 2019

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 Abstract

Excerpted from: Alexi Nunn Freeman and Lindsey Webb, Positive Disruption: Addressing Race in a Time of Social Change Through a Team-taught, Reflection-based, Outward-looking Law School Seminar, 21 University of Pennsylvania Journal of Law and Social Change 121 (2018) (102 Footnotes) (Full Document)

 

Alexi Nunn FreemanEven now, well into the 21 century, addressing race in the legal classroom can be a disruptive, even professionally hazardous, act. Although legal scholars, practitioners, and students - along with studies of legal education - have long advocated for law schools to address the ways that race is deeply embedded in the law and its practice, discussions of race in the legal academy often occur sporadically or in a subset of courses. While many law professors understand that the study and practice of law cannot be neatly separated from its racial history and implications, a variety of pressures and fears can push a focus on race to the margins of the course or out of the classroom altogether.

Critics have argued that when a legal curriculum lacks a sustained and thoughtful analysis of race and the law, law students of color can feel marginalized or worse; white students are not required to examine legal issues from other perspectives or examine the role of race in their own lives; and all students are deprived of a full understanding of legal history, our legal system, and cultural and interpersonal skills that will benefit their clients and their practice. Add to these concerns the fact that the legal profession remains among the least diverse vocations in the U.S., and it can seem that, despite multiple innovations in the legal curriculum, the decades-long discussion regarding racial inclusion in law schools has led us to the same, largely race-avoidant, place.lindsey webb

This Article contributes to the literature addressing the inclusion of race in the law school curriculum by providing an analysis of one race-focused course, the Critical Race Reading Seminar (CRRS), developed and taught by a group of professors at the University of Denver Sturm College of Law (Denver Law). The CRRS is designed to be a source of positive disruption in the legal academy in several ways. Unlike the traditional legal classroom, in which the racial origins and implications of law and policy may be invisible or marginalized, the CRRS centralizes race as its primary focus. Because it is co-taught by a team of instructors, it upends the hierarchical nature of law school classrooms and faculties by modeling collaboration and a shared commitment to the study of race and the law. In order to challenge the conviction, easily gained in law school, that every problem can and should be solved with a legal solution, the course often incorporates experts from other disciplines and requires students to engage in the larger community that is addressing the issues we discuss in class. Finally, while topics discussed in the CRRS have changed each semester, the seminar uses a single, non-fiction book as a framing device each time, thus providing a view of the law that differs from the appellate case study to which most students are accustomed. Through these methods, the CRRS seeks to provide students with a substantive understanding of the application of critical race theory to a variety of contemporary legal and social issues, as well as a sense of professional identity through the examination of lawyering practice in the context of critical race theory.

We are living in a tumultuous period, in which issues of marginalization, structural oppression, and active movement are occupying a prominent space, and many in the legal academy are seeking to address these topics and their legal origins and implications while also coping with time and other demands that can impede meaningful analysis. By examining the structure of the CRRS, along with lessons learned from its implementation, this Article suggests that the course can serve as a template for other law faculties to more nimbly create and teach classes that address questions of race and other social justice issues of pressing concern to law students and society.

. . .

Whether or not law professors explicitly discuss race in their classes, law students are absorbing lessons about race and the law. Academic silence regarding race does not mean that race is invisible or absent; rather, many argue, the void left by this silence contains the presumption that the law is for and about white people or is somehow racially “neutral.” Legal professionals, including in formal studies of legal education, have advocated for decades for a richer curriculum that better reflects the racial underpinnings and impacts of our laws and legal system. They argue that failure to do so can impede students from gaining pragmatic legal skills, fully understanding legal doctrine, and grappling with essential questions implicating values, morality, and justice essential to the practice of law. Suggestions for improvement have included incorporating race throughout the first-year (or entire) curriculum, in clinics and externships, and in specialized seminars. Some have argued that true reform requires transforming a law school culture that upholds the status quo, promotes hierarchy, and quashes an understanding of and desire to promote social justice.

Law schools and individual professors have responded to these critiques by introducing specific classes focused on race and by incorporating racial analyses into courses in creative and meaningful ways. Further, the rise of experiential learning in legal academia has exposed students to the racial origins and impacts of our laws by virtue of increased student contact with clients and the legal system, and many law professors teaching experiential courses explicitly incorporate race into the curriculum. Still, despite these efforts, legal education as a whole is far from a race-conscious discipline, and critiques of its failure to require students to study the connections between race and the law remain relevant today. Before focusing on the development and structure of the CRRS, it is helpful to briefly review the arguments that scholars and practitioners have made for inclusion of race in the legal academy. These arguments both help frame the formation of the CRRS and can guide the analysis of how this model of teaching race in the legal academy succeeds and where it falls short.

A. Addressing Race Promotes Competency in Legal Practice

When law schools fail to address race in a meaningful way, critics argue, students can graduate from law school lacking fundamental skills inherent to the successful practice of law. As Professor Margaret M. Russell wrote more than twenty years ago, law students who have not been required to think meaningfully about race and the law are impeded in achieving one of the fundamental goals of a legal education - learning to “think like a lawyer.” This skill extends beyond the memorization of legal rules to understanding how “to think critically about the function of subordination on the basis of race, gender, sexual orientation, class, age, and disability.”

Lawyers lacking an understanding of racial inequities in the application of the law may also fail to fully understand the ways that judges or juries may view their clients or particular legal arguments. This deficiency can negatively impact the ability of lawyers to make informed decisions about their cases and adequately advise their clients about their options. In addition, law school graduates may possess insufficient cultural literacy and lack “cross-cultural competencies,” thus impeding relationship-building with their clients and colleagues. When attorneys are trained in legal academies where they have not been taught to engage with the law from multiple perspectives, they may be hindered in their ability to creatively problem-solve in practice. Further, without an understanding of racial realities in our legal system, lawyers may be less inclined or prepared to think critically about the system or pursue reform where needed. When law schools neglect the study of race, they are therefore failing to provide their students with fundamental professional skills required to practice law competently and thoughtfully.

B. Addressing Race Advances a More Accurate Understanding of the Law

Critics further argue that when law professors do not address issues of race in their courses, they are not providing students with a full and accurate understanding of legal doctrine. Law students have long been encouraged to think of the law as a series of logical principles derived by appellate judges. In truth, as noted by scholars and others, our laws and legal system have emerged from both noble principles and rank bigotry, from egalitarian beliefs and from the desire to maintain power, from human acts ranging from the most principled to the most depraved. Property law has connections to slavery and Native American land claims, evidence to the introduction of racial bias into criminal trials, contract law to questions of inequality in bargaining choices, constitutional law to racist legislation. When law schools do not address these aspects of the law, students arguably do not have a complete understanding of how legal doctrine is created and of the fact that even seemingly race-neutral laws can be applied in racially discriminatory ways. Without such an understanding, lawyers are not equipped with the tools needed to thoughtfully engage with the law throughout their careers and to participate in creating new law through legislation, rulemaking, and litigation.

C. Addressing Race Furthers the Consideration of Justice and Values in the Legal Profession

Among the arguments for the meaningful inclusion of race in the law school curriculum is the belief that considerations of justice and societal values are necessary both to a robust legal education and to the health of the legal profession. Students cannot adequately consider what constitutes ‘justice’ or ‘good law,’ or what values they themselves hold, without understanding how the law impacts the lives of all those in our society. Failing to address race in law schools thus inhibits a thorough examination of what constitutes a ‘just’ outcome in a case or in addressing an issue of social concern, as students will be ill-equipped to think critically about how and why such outcomes might impact people of color and white people differently. Professor Peter Davis and others advocate instead for a legal academy in which “wrestling with justice and injustice” is of as much importance as “advocacy based on distinguishing precedents.” Students educated in such an academic environment would have the opportunity to gain a more complex and nuanced understanding of what it means to pursue or obtain justice and a more critical lens through which to contemplate whether or not their own law practice is consistent with their values.

D. Addressing Race (Competently) Reduces Alienation in the Legal Academy

Critiques of the ways in which legal education fails to adequately address race extend to the traditional Langdellian, lecture-and-Socratic-questioning method of teaching the law. Some observers note that this approach, particularly when coupled with academic silence about race, has served to alienate and even silence students of color. To these critics, the hierarchical nature of the traditional law school classroom mirrors structural inequalities in society, and a legal education that seeks to promote a concept of the law as racially neutral (or simply side-steps race altogether) can be profoundly troubling to students who know or intuit that the law and race are deeply intertwined. Students of color, already a distinct minority at all but a handful of U.S. law schools, can feel further estranged from the law and their learning environment by an academic culture in which they have reason to suspect that their experiences and beliefs are not those imputed to the ubiquitous ‘reasonable man.’ To those who view legal education in this way, merely incorporating race into the curriculum - while a meaningful effort - does not sufficiently address the deeper inequities of legal academia and its allegiance to hierarchy, power, and prestige. In order to take on these issues, legal academics must not only address race in the classroom and the lack of diversity in the profession, but also consider ways to restructure traditional teaching methods and classroom dynamics in an effort to increase collaboration and equality in the legal academy.

Recent years have brought race to the forefront of our social consciousness, with the election of President Barack Obama, societal belief in - and pushback against - a vision of the United States as “colorblind,” a sustained focus on police violence against African American people, the Black Lives Matter movement, and the election of President Donald Trump with its attendant race-based policies, racial attacks, and rhetoric. These events add more urgency to the arguments for addressing race in the law school curriculum, and many law professors are working hard to incorporate these and other race-focused topics into their classrooms, clinics, and externship seminars.

Still, the task can seem daunting. Law professors struggle with fears and pressures when they consider how best to undertake this work, including the need to “cover” the law in a single course in a limited period of time; the risk of poor student reviews; the threat of a professional backlash against professors, particularly professors of color or professors without tenure status, who attempt to address race; and nervousness about handling a racial issue insensitively or clumsily. Mindful both of these concerns and of seeking to promote greater inclusion of race in law school pedagogy, this Article describes a model that can assist law professors in creating courses that address race, with a template that can be adapted to address current events more easily than many traditional law school courses, and a format that serves to promote collaboration and community, and disrupt hierarchy.

. . .

In creating the CRRS at Denver Law, the faculty was mindful of the work of those who have long advocated for, and sought to create, a law school curriculum in which race is centralized. These voices have called for law school courses that focus on race, for new teaching methods that dismantle the hierarchy of the traditional law school classroom, and for professors to incorporate race into the curriculum as part of a larger challenge to a law school culture that values neutrality and conformity over creativity and critique. The CRRS seeks to embody these values by centralizing race, pushing law students to think beyond the law and the law school classroom when considering the origins of and solutions to racial concerns in our society, and modeling collaboration rather than an allegiance to status or divisions.

The CRRS is imperfect, of course; one clear critique is that the creation of a small, race-focused seminar suggests that the study of race is an add-on topic to the legal curriculum rather than an integral part of the practice of law. Further, as discussed above, the CRRS has its organizational and pedagogical challenges, and team-teaching, even among the most devoted of colleagues, does not erase inequities within or outside the legal academy. In addition, while the reflective nature of the course assignments and the feedback we have received gives us some insight into student opinions regarding the course, there is still much to explore regarding the ways in which the class may be experienced differently by white students and students of color. In reflecting on their teaching experiences in the CRRS, the faculty must think carefully about the role that students of color play or feel called upon to play in a race-focused class taught in a majority-white institution, as well as whether the teaching methods and structure of the course are providing all students with a learning experience that is both challenging and compassionate. Finally, faculty must ensure the CRRS is viewed as an additional, complementary model to existing race-focused courses versus a cheaper replacement.

Despite its challenges and areas for caution, the CRRS does provide a model by which faculties can incorporate race into the legal curriculum in ways that are positively disruptive but not prohibitively onerous. In sharing this model, along with its successes and limitations, we hope to provide law school faculties with a clear path by which to create similar courses in their own institutions. In a time of social upheaval, when legal education has an even greater obligation to address racial and other societal concerns, the CRRS format allows for classes to be created more quickly, to change focus more easily, and to provide space for more creativity and collaboration than do many traditional law school classes. This approach doesn't require a formal organization of critical race-focused professors; all that is required is a group of interested faculty with the will to work together and try something new.


Alexi Nunn Freeman, Associate Professor of the Practice and Director of Externships and Public Interest Initiatives, University of Denver Sturm College of Law. J.D., Harvard Law School, B.A. University of North Carolina at Chapel Hill.

Lindsey Webb, Assistant Professor, University of Denver Sturm College of Law. J.D., Stanford Law School, LLM, Georgetown University Law Center, B.A. Wesleyan University.

Vernellia R. Randall
Founder and Editor
Professor Emerita of Law
The University of Dayton School of Law

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