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Excerpted From: Samuel Vincent Jones, Law Schools, Cultural Competency, and Anti-Black Racism: The Liberty of Discrimination, 21 Berkeley Journal of African-American Law & Policy 84 (2021) (152 Footnotes) (Full Document)


SamuelVincentJonesAmerican Bar Association (“ABA”)-approved law schools are constructed and marketed as the primary means by which law students acquire the core competencies to practice law. The conventional wisdom within the legal profession is that the ABA-approved law school experience is a programmatic academic response to societal needs that provides all law students with culturally responsive and innovative learning opportunities in a safe environment. This Article challenges the conventional wisdom by advancing what some observers may consider a bold claim-that anti-Black racial discrimination represents a continuous and constitutive feature of the law school experience. It posits that Black law students are expected to learn under a system of legal education governance that ignores their long struggle to escape the calamitous effects of anti-Black racism that denies them equal opportunities to practice law.

Part II critiques the Black law student experience, calling particular attention to traditional suppositions and conceptions of liberty relative to the ABA's apparent unwillingness to curtail anti-Black racial harassment on law school campuses, underrepresentation among Black law students and faculty, and comparatively dismal graduation and bar passage rates among Black law students. It questions the viability of continued reliance on the ABA accreditation paradigm as an appropriate response to anti-Black racial discrimination on law school campuses and examines an existing dichotomy by which well-articulated ABA rules that appear to prohibit anti-Black racial discrimination and advance diversity coexist alongside law school practices that discriminate against members of this highly vulnerable class of law students. In so doing, it confronts contemporary assumptions about ABA expectations regarding law school compliance with antidiscrimination policies as they relate to Black law students.

Part III takes a philosophical incursion into our conceptual mapping of the Black law student experience as it relates to the value of “cultural competency” legal instruction as an effective, and potentially required, response to anti-Black racial discrimination. In so doing, it explores how self-interested notions of freedom of expression, autonomy, and economic interest facilitate racially oppressive outcomes for Black law students.

This Article does not attempt to expound on all categories of anti-Black racial discrimination in law schools or prove a normative thesis regarding law schools. Rather, it shows the inaccuracy of the conventional wisdom and how we are now past the point where it is reasonable to doubt whether current models of law school governance incorporate moral culpability and institutional accountability sufficiently enough to protect Black law students from anti-Black racial discrimination.

[. . .]

We are now past the point where it is appropriate for law schools and the ABA to implement law school governance policies that effectively incentivize compliance with the rules purportedly aimed at curtailing anti-Black racial discrimination. There is no question that Black law students are entitled to equal protection under the law and should have fair and equal access to educational opportunities without suffering the burden and indignation of anti-Black racial discrimination. For too many Black law students, however, the probability of experiencing equal opportunities and successful educational outcomes is materially diminished by racially hostile learning environments and a system of legal education governance that sustains racial subordination and precludes accountability for anti-Black racial discrimination.

It should come as no surprise that Black law students, and those empathetic to their plight, are increasingly engaged in efforts to prevent anti-Black racial discrimination on law school campuses by, in part, calling for institutional accountability for anti-Black racism and the implementation of Cultural Competency Instruction. As discussed, such initiatives are, without question, justifiable given that the principles that underlie respect for student autonomy and racial equality merge to produce materially beneficial outcomes for law students and law schools alike given our increasingly multicultural society and growing observance of the sphere of non-derogable federally protected rights afforded to Black law students.

Associate Dean for SCALES and Inclusive Excellence & Professor of Law, University of Illinois Chicago School of Law.

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