Tuesday, January 21, 2020



Excerpted From: Joyce Hughes, Different Strokes: The Challenges Facing Black Women Law Professors in Selecting Teaching Methods, 16 National Black Law Journal 27 (1998-1999)(44 Footnotes) (Full Document Not Available)


Joyce A Hughes


Some years ago the group Sly and the Family Stone performed a song which had lyrics noting that there are “different strokes for different folks.” That message also applies to both teaching and learning. The observation that the 'learning process is more individual than collective' also applies to teaching. Although most law professors are male, differences in law professors' backgrounds also can mean variances among their teaching styles. Specifically, those factors which make one a Black woman law professor could make our teaching distinct from the collective. When I started in 1971, I was the first Black woman tenure-track professor at a majority law school in the United States. Then, as now, the 'orthodoxy of the Socratic method' existed in law teaching. That method often uses a casebook and 'the professor serves only as a questioner. One question leads to another. No answers are given.' Questioning of students may range from inquiries about the specifics of a particular case, to the decision's implications for doctrine, to how it can or can not be synthesized with other decisions, to the social policy implications of the result, etc.

The Socratic method was made vivid by the character Professor Kingsfield in the 1973 movie “Paper Chase” and was the 'method by which the current generation of teachers was taught.' As employed by some law professors, the method is probably responsible for the pejorative words used by law students to characterize their experiences: 'tension, stress, apprehension, anxiety, doubt, fear, intimidation, terror, impending doom . . . .' When I was a law student, I saw the method used to terrify one of the ten women who started law school with me. After being questioned “Socratically” and while class was still in session, she ran up the aisle crying bitter tears, exited the classroom to never return. Since I have been on the other side of the podium I have discovered that, as usually employed, the Socratic method is not my preferred manner of teaching.

I have learned another lesson from many years as a law teacher. I have taught a number of subjects, including Trial Practice, Legal Profession (Ethics), Real Estate Transactions, and Banking Law, in addition to matters I currently teach: Evidence, Immigration Law and a seminar on Refugees and Asylum. Teaching these different subjects, using a range of techniques, has highlighted the one constant and often predictive variable to my role as a law professor: I am a Black woman. That means I am not simply a 'distorted white male.' Thus what is 'fundamental to Critical race Feminism' also is a truth applicable to me: '[W]omen of color are not simply white women plus some ineffable and secondary characteristic, such as skin tone, added on. ' Because of this, race is a 'pedagogical sub-text' which has impacted my courses.

An example of race as a sub-text to my pedagogy is the comment on an evaluation of an Evidence course I taught in the fall of 1997-98. A student complained that I created “racial tension” and cited as evidence a conversation he/she overheard that I had with Black students outside of the classroom in which I mentioned that a white male had said he found my class to be very valuable. How could a conversation outside the classroom in which I tell Black students of a favorable comment by a white male create tension? I suspect the tension was between the favorable comment and the student's own attitudes. While I do not know the identity of the student since evaluations are anonymous, from the context and class enrollment, the writer probably was white and most likely was male. Given that those who express items in writing are representative of others who hold the same thoughts but do not write them-- whether it is a letter to the editor of a newspaper or a complaint to the manufacture of a product--I assume this comment (as well as favorable ones) expresses the views of others in my classes.

While the foregoing was a negative comment, the fact of my race can impact Black students positively. In 1990 a Black student did a Senior Research Project (under the supervision of a white professor) entitled “A Study of Black Law Students at Northwestern University School of Law.” It commented about the 'silencing' of Black students. But one student interviewed said “I spoke out the most when I had Professor Hughes for Banking Law and that's when I really realized it makes a huge difference having a Black professor . . . .” That student's comment is significant as I do not try to force Black students to speak any more than other students. However, my mere presence behind the podium transmits an affirming message. In the fall of 1996-97, Black students received an affirming message from my response in class to a white male student although it was not deliberately designed for that purpose. Subsequently, however, a Black student referred to it as a “golden moment.” The white student had expounded on materials he told me to prepare for distribution to the class to illustrate various points. I listened politely, said “I recommend that you prepare such materials for yourself” and moved on to the next item I had planned to discuss. Apparently Black students considered that a “golden moment” because I indicated--both by response and attitude--that I would not accept a student giving me an assignment.

When he received an “A” grade, the white male student who tried to tell me what to do should have realized I evaluated his performance without regard to his behavior that day in class. I emphasize that all students earn their grades in my classes, especially when a Black student tries to thank me for a grade. In one instance a Black student earned the highest grade in a class and I determined the grade before knowing the identity of the person. In another instance a Black student, who was not viewed as a serious student, did very well in one of my classes. When he, and others, have tried to thank me for grades, I accept the thanks not for making a gift of a grade, but for treating Black students as white students are routinely treated by other professors. I believe that students have a motivation to be all that they can be in a class where they know they will be judged upon performance and not race.

While neither color nor ethnicity in and of themselves determine grades, a racial perspective can mean “different strokes” for both Black law students and Black professors. Derrick Bell, a pioneering Black law professor wrote that race may not be implicated in every subject but that 'when race played a role in the development of an area of law, it should be explored, rather than, as so often has been the case, ignored.' In addition to those instances where race has influenced the development of the law, students should be made aware of circumstances which illustrate how Black reality differs from what is assumed to be universal reality. For example, there is no official record of the birth in 1875 or death in 1912 of my paternal grandfather in Alabama. Also, when my mother, born in 1911 in Alabama, went to apply for social security I learned she had no birth certificate. A comparable situation is recorded by a professor who posed a hypothetical in which an underage female truly believes she is of the age of consent. Students find it incredulous that one would not know his/her own age until the professor indicates 'the fact that my grandmother never knew her age, as she was born in Kentucky with a midwife in attendance and no records were kept of her birth. ' Even if race is not implicated in the development of a rule, where views of race cause students to doubt the accuracy of one's statements of a general rule and to fail to accord one any professorial authority, then race can have a decided impact upon one's teaching. Consider the O.J. Simpson criminal trial.

As one author noted, 'Whatever opinion we may have of the criminal trial of People v. O.J. Simpson, or the follow-up civil trial of Rufo v. Simpson . . . we must recognize the unique educational opportunity the cases present for teachers and students of the law of evidence.' My 1995-96 Evidence class was meeting during the period of the Simpson criminal trial. Because relevant to a course I teach, I studiously followed accounts outlining evidentiary issues, meticulously clipped material, carefully constructed files on specific evidentiary issues and used instances from the case in class as illustrative examples. Students were interested--but then a verdict was reached in the criminal case by a Los Angeles jury, a majority of whom were Black women. My Evidence class was meeting when the verdict was announced. Initially students requested that we adjourn early so they could hear the verdict. Then it was suggested there was a television available in the legal clinic on the same floor which could be wheeled into the Evidence classroom. Moreover, clinicians might welcome a space larger than an office in which to view a television broadcast. So we all watched the verdict announced on television and heard O.J. Simpson acquitted. Immediately thereafter, the class ended at its normal time.

What a difference it made that this Black defendant had been acquitted! No longer could I use evidence in the O.J. Simpson criminal case for instructional purposes. Students seemed unable to trust my statements of what the rules actually were or any discussion of their misapplication or correct application or any comments about the policy factors involved. There was an assumption that because I am Black, my view would automatically be in favor of the Black defendant, O.J. Simpson, on any evidence issue. As one Black student complained to me after the criminal verdict, “the presumption of innocence” and the need for prosecutors to prove a criminal charge “beyond a reasonable doubt” were viewed by white students as simply not applicable to a Black defendant. Some Black students deliberately stayed away from the law school the day the criminal verdict was to be announced so as not to encounter racially skewed analyses. While this was before anyone knew what the verdict would be, it is understandable for students to act on the reality of the Black experience.

At the outset that reality did not come to the forefront of my consciousness as I was intent on fulfilling my law professor role. In collecting material, studying evidentiary issues and making files before the criminal verdict was announced--which was also before the civil trial and before a book was available to assist evidence teachers--I was motivated solely by pedagogical concerns. I have chastised myself for wasting time by momentarily losing sight of Black reality in thinking that I, a Black woman law professor, could use the 'unique educational opportunity . . . for teachers and students of the law of evidence' presented by the Simpson criminal case. And I will not use the civil case in which the plaintiffs prevailed against O.J. Simpson (which might prompt the unreasonable belief that all evidentiary ruling were correct) without also being able to use the criminal case in which he was acquitted (which might prompt the unreasonable belief that all evidentiary rulings were in error).

Not using the O.J. Simpson evidentiary materials probably will have no affect on students' perceptions of my Evidence courses; those evidence issues are probably not what compels interest in the Simpson cases. However, the fact that instead of a strictly Socratic approach, I use a problem method in my evidence courses might influence attitudes. Not using the Socratic method means that students may think one is teaching 'wrong.' In addition a side-effect of 'the domination of Socratic methodology . . . [is the belief of many professors] that alternative techniques are less effective or appropriate.' Even if one does believe in the appropriateness and effectiveness of other methods, and even those who feel the tug of “different strokes” nonetheless may also feel inhibited and try instead to employ the heavily used Socratic method. Most of those who responded to a survey of law teaching techniques in fact do use the Socratic method. Thirty-two percent of respondents were female, 5% were African-American, 1% were Latino and 1% Asian-American. Since women of color were not separately tabulated, it is not known how many participated in the survey. While most respondents used the Socratic method, over half sometimes took risks in the classroom and 29% used new approaches very often.

Of significance are findings about women law professors. Of course it would be a mistake to view Black women as if one could simply use a crayon on a white image in a child's coloring book. Still what was found about women law teachers is quite instructive. “[F]emale professors use non-Socratic methods in first year courses to a slightly greater degree than Socratic methods . . . [[[[but] females are less likely than males to vary their teaching techniques and try new methods. If such an inference is valid, the causal agent propelling the distinction may be that a lack of tenure can have a “chilling effect” on the willingness to try new techniques.” While one can argue that tenure ought not be a factor in one's teaching methodology, still there is pressure to approximate the norm.

Each Black woman law teacher must determine whether to heed the call for “different strokes,” Although I am quite aware that a distinct reality exists for African-Americans, still I question part of the advice of an African-American University of Mississippi law professor. She 'attempted to crash all the barriers at once' but said 'if a professor is extremely concerned about receiving poor teaching evaluations, and biting comments from students, think twice before taking nontraditional classroom approaches--but then try anyway.' To the extent this means that one must never let one's self-esteem be tied to student evaluations, and that one should guard against internalizing every external negative judgment, then I agree wholeheartedly. But to the extent she is advising that one take unnecessary risks before tenure, then I reject it. Perhaps I am influenced by the horrendous experiences when I started teaching as the first and only Black-- male or female--and the first and only female--of any race or ethnicity--at the University of Minnesota Law School. Nonetheless, the first goal for Black women professors must be to achieve tenure.

The Mission Statement of the Journal of Gender, race and Justice speaks of 'a vision that allows us to be who we are as we are, without sanction or penalty. ' That is an aspiration, not reality. Just as one often must pay a penalty merely for being a Black woman, so too one may incur sanctions or penalties as an untenured professor. Do not mistake my thrust. From personal experience I know that tenure does protect one from termination, even though it does not shield one from all adverse treatment. As a Black male lawyer told me when I started law teaching more than 25 years ago: “Your mere presence is a victory.” Survival in higher education is not automatic. Nonetheless permanence should be a goal for Black women law professors. An authentic Black faculty presence does make a difference. It clearly makes a difference to students of color. And it also makes a difference for white students, although often neither they nor white faculty recognize it. To be truly educated, to be prepared for the world beyond the ivory tower of academia, students need the experience of having a Black woman in an authority position like that of a professor. A Black woman law professor commented that while “our task cannot merely be to accommodate ourselves to the demands of the academy . . . first we must survive. Even if one is not able to act immediately on the idea that there are “different strokes for different folks” one need not fall in the category of professors who become less willing to vary teaching methods or experiment with new techniques the longer they have been in academia. Also, since the “temperament and perspective of the professor affects the tone of the class and the students,” merely being a Black woman law professor means a person can and should bring a different temperament and perspective even if in the context of the traditional Socratic method. That itself may be the “different strok

Professor of Law, Northwestern University School of Law; Joyce A. Hughes, B.A. Carleton College; J.D., University of Minnesota Law School.

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