Rosenblum: Our Shared Duty Now: Law Professors Must Bring Racial Equity into Each Course

The following is a guest post by Professor Darren Rosenblum (Pace).

The killing of George Floyd this summer has exposed, for a far broader (largely white) population, the endemic nature of racism and the urgent need to fix the vast inequities it creates throughout our legal system, but especially in criminal law. Recent data reveals how people of color are twice as likely to die from COVID-19 than whites. As with allowing anti-Black police violence, our public health choices reflect deliberate decisions by governments and companies as to whose lives matter.

As legal educators, we cannot repair the world. But as Edward Hale said “I am only one, but I am one. I can't do everything, but I can do something. The something I ought to do, I can do.” The urgent nature of the crisis obligates us to do something, and it must be now.

We law professors have seen how these exclusions play out within our institutions and our profession: Black students don’t advance as other students do. They don’t participate as much in class and in school governance. They join a legal profession that reflects a profound structural racism. Many Black associates join firms, but only a tiny number make partner.

It is our duty to begin to rectify this shocking inequality. We law professors share this responsibility, individually and collectively, to make law schools deliberately inclusive places for our students to learn. We must do this to make our Black students feel welcome so that they learn and become full members of our profession. We must also do it for all our students to model for them what our profession should look like.

Just as we labor over our first year curricula with fine-toothed combs to get the balance just right, we must endeavor to realize greater inclusion in our institutions. Many important conversations have happened this summer to evaluate these challenges, and the conclusions have been clear: we must do much more to include racial equity in our schools and classrooms.

I want to make a much more pointed intervention. While the conversations about racial equity should happen everywhere and in greater depth, here, I want to make a discrete challenge to my colleagues: each and every one of us – at my home institution and every other law school – should include one class in each course on racial equality issues.

 

 

We need to do this now to convey – especially to the Black students, staff and colleagues – that the gravity of racism matters to us and that we will respond to it. We must welcome back our Black students to our schools – virtually or in person – with a clear message that our schools are for all of our students, not just the white ones. If every law professor includes one class on racial equity issues in each of their courses this fall, it will constitute a radical improvement in legal education.

Why one class? Because we can do it. Just as we rapidly and in many cases seamlessly transitioned from live to online learning in March, each of us can now make this one change – make room for one class on racial equality.  As a deliberately modest goal, this is something we can each do. If all of us do this one discreet and concrete change, it will vastly improve our institutions. This one class should specifically challenge us to understand the law’s role in perpetuating racial inequity, but also that arising out of gender, class, sexual orientation, ability, and other equity issues.

When we teach the law, we should be asking ourselves and our students how the law affects and effects racialized inequities. How is race, both explicitly and implicitly, written into all of these areas of the law? Who were the jurists or legislators who drafted the decisions or statutes? Based on what experiences did they understand issues before them? What voices did they hear and listen to? What voices were heard and included by the attorneys? What identities did the attorneys hold? How are these purportedly neutral rules in these subject areas lived by people, especially people across key differences such as race and gender?

As my career has continued, I’ve developed a fuller understanding of WHY it is that this material must come in. If we teach the law as a set of neutral rules, we do not adequately convey how the law itself is not neutral. The law is written by a small set of people with a limited set of experiences. Presenting the law as neutral fails to reflect how the law is lived by people, especially people across differences.

I myself have struggled with how to include these debates. In both Corporations and Contracts, I’ve done my best to speak to corporate social responsibility or the effect of unconscionability cases on Black plaintiffs, respectively. I’ve felt like what I was doing was enough of a mitzvah given how closely law professors hew to the canon. But I’ve seen how even one class on racial and gender equality issues can make a difference.

I know that we can and should do more, but the perfect cannot be the enemy of the good. By including these issues on every single one of our syllabi, we send the signal to students that these issues matter to all of us, and create a space for discussion. Even with only one class.

 We all can do more.  Focusing one class on race is the very minimum we should each do to foster inclusion.  If we unite in doing something, we model for our students how to engage as lawyers.  If we do nothing, we show them how to put our heads in the sand, and we continue the model of leaving racial equity to our colleagues of color, when we now know this is not only their burden, but our collective responsibility.

To facilitate this modest shift, I’d recommend that all professors should meet with the others who teach that same course (or related courses) to identify precisely where in their courses there may be openings for conversations about racial and gender equity. A select few casebooks guide us in covering equity issues, with even fewer discussing when and how to hold the conversation. But since most books ignore equity issues entirely, we law school professors must fill this void.

If professors have no community with others teaching the same topic, they can create room themselves. On syllabi, they can mark a class for the topic of racial equity, and then announce closer to the time what the reading and discussion will be. The easiest question to pose to students is this: how does race affect and effect outcomes in the law of [fill in your course]. I guarantee you that there will be something written about this issue to assign, and in any case, our students will find much with which to engage. If you find, as I did in Corporations this summer, that students seem reluctant to discuss this heated topic, put them in small groups or zoom breakout sessions to generate critical thinking.

I can already hear at least two objections: “I don’t have enough time to cover what’s on the bar, much less deal with racial equality.” Or “Don’t push your agenda on me, we have academic freedom to teach what we want.” As to the first objection, this is one class. Second, I recognize that there are ideological differences among our colleagues who teach law, but I am not arguing to mandate a specific message. Rather, I am arguing to hold a conversation about racial inequities. For example, in Corporations, we discussed whether shareholder primacy favors whites.

I suspect resistance to holding even just one class on race is more about fear of novelty and of making mistakes. It’s a reasonable fear. Conversations about race and gender in class can prove challenging. But we don’t avoid teaching parol evidence or the rule against perpetuities just because they’re difficult. We cannot ignore the racial and gender dimensions of the subjects we teach. We can, and must, learn to lead discussions around the key issues of our day.

Holding this conversation with our students is our responsibility.  We play a unique role in the bar, in our institutions, and for our students. We can no longer ignore this duty. We may not agree as to the need for legal remedies for racial discrimination, but we should agree that lawyers in all fields need to develop the capacity to grapple with these issues.

When faced with movements such as #metoo and Black Lives Matter, we professors share an obligation to engage and guide our students. Now, it is our duty to model engaging with challenging racial equity issues with both compassion and professionalism.

Darren Rosenblum is a Professor of Law at the Elisabeth Haub School of Law at Pace University.

[email protected]

Comments

[A non]

"It is our duty to begin to rectify this shocking inequality...Holding this conversation with our students is our responsibility."

No, it isn't. Further, the author's stated "suspicion" about people's opposition is unsupported (and probably unfounded, if not ideologically driven itself). For example, what if one challenges the very notion of "structural racism?" What if one believes oneself to have good reasons to think that class better explains what's going on than race for one of the stated issues?

If the author feels inclined to do anything, then perhaps he can help to advocate for the closure of about half of American law schools. These institutions line their own pockets, and provide their students with grim prospects of procuring viable legal careers. The schools themselves reflect a deeper structural problem with the country. Since there is a class component to place of matriculation, and since class and race are not divided in the United States, then how many visible minority students are you essentially saddling with humongous debt for no good reason, from "the" vantage of "social justice?"

[PaulB]

Great idea Prof. Rosenblum! Far too much time in classes is wasted on boring law stuff.

While we're at though, let's have a conservative state legislature mandate a class on the role that a free market economy plays in ensuring democracy and prosperity. They might also include a requirement that students be taught how Communism led to mass murders and starvation in lands like the USSR and Mao's China.

I'm sure that stuffy organizations like AAUP and FIRE will have no problem going along with your idea, along with any other requirements set by our democratically elected officials.

[LandTblogger]

I fondly recall my time at the law school when I learned that our system was one of individual justice; that group justice was inherently nefarious and should be fought against.

[BG]

How about equality concerning citizenship? Are foreigners treated equal as citizens? Are they nit looked down at especially in the legal profession? This is also racism but it is never expressed.

[anon]

BG

"Foreigners" are actually treated quite well in the LLM programs, IMFAO.

In the practice of law, when one thinks of "a good trial lawyer" IMFAO, an evil, racist, cis gender, US citizen, white male does not automatically come to mind.

As for mandating inclusion of the hate speech that passes as "woke" discourse these days, I would say: academic freedom should prevail. However, if any professor starts incorporating heinous group libel into a course, then I think sanctions should be considered.

As usual, the "truth" is a defense: but, that truth must be determined fairly and not in some Orwellian world where "unity" means driving your political enemies into the sea.

[LawProf John Banzhaf]

Yes, there are many racial problems and disparities, but - unlike most professors teaching Math, Physics, Chemistry, Statistics, etc. - we as law professors can do a hell of a lot more than simply teach about it and opine about inclusion.

We can “Sue The Bastards” - i.e., use our legal skills to attack the problems rather than just talk, teach, and write about them. We can walk the walk rather than just talking the talk.

For example, I used legal action to help force TV stations in the largely-Black District of Columbia and then elsewhere to begin featuring, for the first time, on-air reporters who were African American.

Another legal action forced a major airline to stop discriminating against African Americans in hiring pilots, taxi drivers to stop passing by Blacks and then stopping for White who likewise signaled for a cab, stopped a major dance school from refusing to serve Black students, etc.

The author notes that “recent data reveals how people of color are twice as likely to die from COVID-19 than whites.”

Well, in addition to providing far more information and explanation about the problem, I also suggested to lawyers and others with legal standing how they could use this information to provoke change. See, e.g.:

Legal Impact - Natl Urban League Report on Blacks and COVID
Could Trigger Law Suits Over Illegal Disparate Treatment of African Americans
https://bit.ly/3aAdUmg

So let’s stop talking and start suing!

[A non]

"How about equality concerning citizenship? Are foreigners treated equal as citizens? Are they n[o]t looked down at especially in the legal profession? This is also racism but it is never expressed."

Well, if you yourself equate "foreigner" with being of a different race (relative to white???), then aren't you in fact the racist?

Are you saying the law should treat citizens and non-citizens identically, legally speaking, and that not doing so is (because of) racism? That's ridiculous. You can hate the very concept of citizenship, but that's not going to cut it here.