Excerpted from: Teri A. McMurtry-Chubb, The Practical Implications of Unexamined Assumptions: Disrupting Flawed Legal Arguments to Advance the Cause of Justice, 58 Washburn Law Journal 531 (Summer, 2019) (178 Footnotes) (Full Document Not Available)
At a point early in the first semester of my first year of law school, the entire 1L class gathered together for the last session of our mandatory legal reasoning course. We were a class of slightly more than 100 students with approximately 30 students of color, the majority of whom were African American. As per usual, most of us were seated in close proximity to one another. There was safety and security in our numbers, and we had tacitly and explicitly agreed to be vigilant for the inevitable racist comments that our White classmates had been making since orientation week. I recall the events of the day, a chain reaction of actions that unfolded like a piece of origami revealing creases and cracks in what had previously appeared to be a functional and cohesive law school educational experience. One of my African American classmates, “Charles,” raised his hand to address publicly the private comments of a group of mumbling 1Ls, all of them White and in close proximity to him. Apparently, these mumblers wondered aloud, at low volume, about Charles' abilities to sit in the same room as them, in a seat they believed he had stolen from a more deserving White candidate.
In an act of bravery and hubris that only a brand new 1L could have mustered, Charles demonstrated that the key learning outcomes of our legal reasoning course had not been lost on him. He pointed out that all of us had gained admission to a public, land-grant university in a state where the majority of the residents were White. The institution was required by state law to admit 70% of its residents to the law school, leaving the remaining 30% of admissions slots for more competitive out-of-state candidates. Through a series of incisive points that shredded our classmates' unexamined assumptions, Charles built the argument that the 30 students of color in a class of slightly more than 100 had competed for admission in a more competitive pool than their in-state White counterparts. He continued in his reasoning that the White students, not the students of color, occupied seats that they did not quite deserve. As Charles concluded his remarks, the room fell silent and the professor dismissed us early. Our class would go on, like every other law school class, to grow together, fight together, and construct our professional identities in an environment where our right to occupy any of the seats available to us remained contested, in-flux, and constantly shifting. When I have encountered my White classmates elsewhere in the world, now established lawyers and academics, I have noticed their startled glances at my occupying seats next to them at national conferences, CLEs, and on hiring committees. I have experienced the uncomfortable laughter, the looks of incredulity tinged with bitterness that seem to ask how I graduated, how I got to where they are, and whether my presence in some way diminishes their accomplishments and makes mine meaningless.
This Article is an interrogation of the ongoing journey to belonging while simultaneously critiquing what it means to belong. It uses the law school classroom as a laboratory to study students' relationship with difference in their lived experience as law students, and in the professionalization and instructional experiences that train them to become practicing attorneys. The research detailed in this work considers the link between the unexamined assumptions students bring with them to law school about race, class, gender, and sexuality, and the flawed legal arguments students make based on those assumptions. Through an empirical study of students' motion and appellate briefs on issues involving affirmative action in law school admissions submitted in a required legal writing course, this work seeks to reveal how legal education both prepares and fails to prepare students to represent diverse client groups in a manner that helps rather than harms. In doing so, it engages radical, critical pedagogies to: (1) reflect the inequities in the societal and educational environments that law students encounter; and (2) to dismantle the law school classroom as an incubator for professional practices that subvert the cause of justice.
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This research project has the potential to change how we view the preparation of law students for law practice. As such, it has significant implications for how we approach diversity, equity, and inclusion in legal education and the law. Legal education touts diversity--equity and inclusion less so--as aspirational goals, but has largely focused efforts to achieve the same in admissions and faculty hiring. The Supreme Court has emphasized the benefits of “diversity” as if those benefits were equal to all students and burdened none of them. Justice O'Connor's adoption of the benefits that flow from a diverse student body from the University of Michigan's petition for certiorari in Grutter remain the justification for race-conscious law school admissions.
The University argued that its admissions policy “promot[ed] 'cross-racial understanding,’ help[ed] break down racial stereotypes, and 'enabl[ed] [students] to better understand persons of different races.”’ It further stated that “these benefits [we]re 'important and laudable,’ because 'classroom discussion is livelier, more spirited, and simply more enlightening and interesting’ when students have the 'greatest possible variety of backgrounds.”’ However, these “benefits” are not benefits to “diverse” students, non-White and racialized, in the law school student body. In actuality, they place the onus on non-White racially and ethnically diverse students to justify their existence, their qualifications to occupy a seat in the law school class, by promoting cross-racial understanding, breaking down stereotypes, and being the catalysts for more lively and spirited classroom conversation. These expectations continue to render invisible the whiteness and Western colonial ideals on which legal education is based and perpetuates.
The Supreme Court has further reinforced the view that enough “diversity,” enough non-White racial and ethnic students, will somehow turn the tide to make law schools more socially inclusive spaces. Justice O'Connor echoed this sentiment in the majority opinion for Grutter when she stated:
As part of its goal of “assembling a class that is both exceptionally academically qualified and broadly diverse,” the Law School seeks to “enroll a 'critical mass' of minority students” ... defined by reference to the educational benefits that diversity is designed to produce.
The Law School does not premise its need for critical mass on “any belief that minority students always (or even consistently) express some characteristic minority viewpoint on any issue. To the contrary, diminishing the force of such stereotypes is both a crucial part of the Law School's mission, and one that it cannot accomplish with only token numbers of minority students. Just growing up in a particular region or having particular professional experiences is likely to affect an individual's views, so too is one's own, unique experience of being a racial minority in society, like our own, in which race unfortunately still matters. The Law School has determined based on its experience and expertise, that a “critical mass” of underrepresented minorities is necessary to further its compelling interest in securing the educational benefits of a diverse student body.
However, as Claude Steele demonstrates in Whistling Vivaldi, critical mass alone may not be adequate to reduce the negative effect of stereotypes. He writes, “critical mass and an approach that values what diversity can bring to a setting may go some distance in making minority identities feel more comfortable there.”
Likewise, cues that lessen stereotype threat serve as lenses by which similar cues are interpreted. For example, an educational setting with a large number of non-White racial and ethnic students, but with no non-White racial and ethnic professors might not send a message to prospective students that the environment is “identity safe.” In contrast, an educational environment with robust programming that demonstrates appreciation for its non-White racially and ethnically diverse student body may help students to feel more “identity safe,” even in the absence of non-White racially and ethnically diverse professors. Of this phenomenon, Steele writes, “if enough cues in a setting can lead members of a group to feel 'identity safe,’ it might neutralize the impact of other cues in the setting that could otherwise threaten them.”
Law professors, lawyers, and law students can point to cases in the core law curriculum, the class discussion of which obscured the existence of difference and made them feel marginalized, insignificant, and unsafe. Such cues as these are negative, or “features of a setting that signal [something bad will happen to you as result of your identity].” Thus, the context of an environment, a color-blind environment or any environment blind to difference, can itself be a threatening identity cue.
Steele's insights into Justice O'Connor's presence on the Court are instructive here. He recounts that “O'Connor's early days on the Supreme Court were saturated with these [negative] cues--not hate speech, not overt prejudice from her colleagues, just ordinary features of the Court and its context that signaled contingencies based on her gender--everything from the paucity of women's restrooms to stereotype-laden questions from reporters.” Developing a curriculum that purposefully and effectively tackles issues that arise around difference would serve as a positive context cue to lessen stereotype threat and aid us in creating diverse, equitable, and inclusive law school environments.
Lastly, the Supreme Court has perpetuated the idea that “student body diversity promotes learning outcomes, and 'better prepares students for an increasingly diverse workforce and society, and better prepares them as professionals.”’ The Court also has espoused the belief that “these benefits are not theoretical but real, as major American businesses have made clear that the skills needed in today's increasingly global marketplace can only be developed through exposure to widely diverse people, culture, ideas, and viewpoints.” The study in this Article suggests that the presence of non-White racial and ethnic bodies in law school classrooms do not, and cannot, in and of themselves, promote better learning outcomes, prepare all students for a globally diverse workforce and society, and help them to shape professional identities beyond the touch of white supremacy, patriarchy, and capitalism.
In sum, rarely have law schools mapped and studied their curricula to assess how it perpetuates inequities and reinforces hierarchies. This and more are required to address the law and lawyers' inability to fully serve racially and ethnically diverse client groups. As this study teaches us, legal educators and employers cannot take for granted that students leave law school with the skills to advocate effectively for historically marginalized, underrepresented groups, even as they matriculate successfully through law school. A heart for justice is not sufficient to do justice. Rather, law schools must actively develop interventions in their core curricula that directly and explicitly engage students around issues of power and privilege. Until then, students will not act with agency to transform law practice and its societal impact in ways that challenge their unexamined assumptions and allow them to make arguments in the service of justice.
Professor of Law, Mercer University Walter F. George School of Law.