September 25, 2020 Feature

Law Schools Vow to Address Structural Racism

By Hannah Hayes

The study of law can be . . . a sort of glorified accounting that serves to regulate the affairs of those who have power—and that all too often seeks to explain, to those who do not, the ultimate wisdom and justness of their condition.

But that’s not all the law is. The law is also memory; the law also records a long-running conversation, a nation arguing with its conscience.

—Former President Barack Obama, Dreams from My Father

As cities across the country exploded in protest following the horrific murders of George Floyd under the knee of a white police officer and Breonna Taylor, shot eight times by police in her home, calls to address institutional racism take on renewed urgency. The civil unrest has touched cities and campuses nationwide, and law schools are responding to calls for change.

In the aftermath of the murders and the unrest that followed, law school deans began issuing statements vowing to fight racism within their institutions. The vivid image of a white officer with his knee on the neck of a Black man who pleaded for his mother as he gasped for his last breath was gut wrenching to all who watched, but for women of color, it especially hit home.

In an open letter to the students and the law school community, Carla Pratt, dean of the Washburn University School of Law in Topeka, Kansas, spoke of her fears for her Black son. “As dean, I am expected to maintain neutrality in the face of political controversy. But as a lawyer, I know that I have a special responsibility for justice that commands that I not remain silent in the face of injustice.”

Since the events of this spring, the conversation has been largely organized around defunding police departments and past and present attempts at reform. While discussions tend to be polarized, they have also raised deeper structural issues that law schools are in a unique position to address.

“This false dichotomy—being for or against the police—avoided the need for us as a profession to reflect on how we allow laws to be enforced,” Pratt says. “If we allow people who are most vulnerable to be murdered, our laws are not worthy.”

Racism 101: Addressing Racism in the Classroom

At Howard University School of Law in Washington, D.C., defending the rights of minorities is part of its mission. So when Dean Danielle Holley-Walker teaches administrative law, students learn about how the U.S. Department of Education promoted inequality in education. When she teaches regulatory law, she brings in the Civil Rights Act of 1964.

“If you’re going to have an antiracism or antibias agenda, it has to be an agenda from the top to the bottom of your law school—you can’t put it in just one course,” Holley-Walker says. “That’s the bigger challenge.”

Many law students may not have an understanding that the law has not always applied equally to people of color. Though cases like Plessy v. Ferguson or Brown v. Board of Education may even be taught in high school history classes, students may not have an understanding of the impact of the National Housing Act of 1934 on people of color. Created during the Depression to stimulate investment, the act also introduced the practice of “redlining,” or drawing lines on maps indicating where banks could invest with FHA loans. Black neighborhoods were excluded. Restricted covenants were also not declared illegal until the Fair Housing Act of 1968.

Similarly, while the language of the GI Bill did not specifically exclude African American veterans, it was structured in a way that made it virtually impossible for Black veterans to participate in the housing and education benefits it offered. And the Nineteenth Amendment, ratified in 1920, may have granted women the right to vote, but the barriers that Black women and men faced at the polls were not removed until the Voting Rights Act of 1965.

In her seminal work on intersectionality, Kimberle Crenshaw examines several cases that illustrate the double bind that keeps Black women from getting justice. She points out how these women were unable to prove that they were discriminated against based on their dual status as women and as Black people. Because women had been promoted and Black men had been promoted, the courts did not find discrimination. In making these findings, however, the courts failed even to evaluate the treatment of Black women as a potentially distinct group subject to discrimination. 

“We need to teach our lawyers these things because students are leaving and not understanding systemic racism,” Pratt notes.

L. Song Richardson is dean of the University of California, Irvine School of Law, in Southern California and has written widely on implicit racial and gender bias. “If we don’t educate future lawyers, then it’s a truly lost opportunity,” she says. “I think once people really see there have been roadblocks that have kept Black people from building wealth, it will show that the law has played a role.”

For students of color who often view the law through the lens of experienced racism, the nuances of many cases are ignored. Camille Nelson, dean of the Richardson School of Law at the University of Hawaii at Manoa, recalls studying a case in law school where the judge ruled that a racist taunt wasn’t provocation enough for the resulting violence. “The court would not acknowledge racism—the judge couldn’t understand that [certain language] was provocative to a Black person,” Nelson says, “and it was a provocation defense that begged some further analysis in a racial setting.”

Because of this, students of color often experience pressure to be the one to speak up and question potentially biased rulings or structures. Pratt recalls how many students have recounted to her their distress at being the only Black voice in the classroom. “Faculty were not trained to deal with this,” says Pratt, noting that she was unaware of the situation at Richardson because she had attended law school at Howard.

Reforming Law Schools: Where to Start

Following George Floyd’s murder, Danielle Conway, dean of Penn State Dickinson Law in Carlisle, Pennsylvania, says she felt “wracked” as she pondered a collage of Black and brown faces killed by police. Thoughts of her own son and her position as dean prompted her to circulate an antiracist resolution at Dickinson. She later shared it on the listserv of some 170 law school deans across the country. The response was overwhelming, and dozens of law school deans followed suit with similar statements from their institutions.

Conway took her resolution further and urged her colleagues not to stop at writing statements but to act. “Yes, we need to take a stance, but, more importantly, we need to take action to do something about systemic racism, especially the kind that gets people killed,” she told them.

The result was the Law Deans Antiracist Clearinghouse Project, a website co-curated by five women-of-color law school deans. The group collected and posted antiracist statements and encouraged others to “listen” as a first step.

Listening is an important step, Conway notes, as the majority of law school deans are white. “Can you listen to this pain? It’s not just about responding remotely in the way that law deans are often called upon to speak to the community. We need to galvanize this collective voice to make change.”

Deans were also asked to do a serious audit of their schools to verify the numbers of students and faculty of color as well as examine what supports are given. Many deans began questioning whether law students were equipped to recognize racism and understand implicit bias and cultural competence.

“Sometimes people assume that once you attain a certain role, race and gender don’t apply to you anymore, but that’s just not true,” Camille Nelson says. “Racism and sexism are deployed differently in professional settings. [They’re] exercised with more sophistication and nuance. People of color—and women of color in particular—understand things like presumed incompetence.”

Carla Pratt recalls being asked for her bar card in a Philadelphia courtroom and being refused admission when she couldn’t produce it. She recounts how it was a Black clerk who got really angry and stood up for her—pointing out that hundreds of lawyers had been admitted to the courtroom without producing a bar card.

Challenging Structures

Supporting students of color and educating the law community about structural racism are important starts, but many deans see this as a time to challenge the legal profession to make institutional changes. Kimberly Mutcherson, dean of Rutgers Law School in Camden, New Jersey, points out that law schools are basically conservative institutions. “We have been doing the same thing the same way for decades. How do you incorporate these conversations about racism into, say, a contract class?”

Karen Bravo, dean of the Indiana University Robert H. McKinney School of Law in Indianapolis, agrees. “We’ve inherited structures and a certain way of teaching a perspective where we prioritize neutrality. We need to question whether it’s possible to have neutrality. When you go through cases, do you engage with the difficult subjects? We need to equip our instructors to discuss those questions so that if students were to ask a question, they can have that difficult discussion.”

A qualitative study of African American lawyers recently admitted to the bar found that people of color face tremendous barriers before they even get to law school. Many were working full time while in college or lacked the financial resources to take LSAT prep courses. “There wasn’t a lot of time to study for the LSAT,” says Pratt, who coauthored the study. “We have to be cognizant of these structural inequalities when we build systems.”

The bar exam, too, is “an incredible gatekeeper that keeps people of color and women out of the profession,” Mutcherson says. “The bar exam really tests privilege and the ability to pay thousands for preparation and not have to work so you can focus.”

What Is Different This Time?

In August, more than 150 deans signed a letter sent to the ABA Section of Legal Education and Admissions to the Bar asking the ABA to require “every law school [to] provide training and education of its students with regard to bias, cultural awareness, and anti-racist practices.” A roundtable discussion has been scheduled for October 2, 2020, to discuss “lawyer well-being” as well as equity/diversity/bias, transparency, admissions tests, and student loan programs.

As the protests continue, many wonder whether the calls to defund the police and restructure racist institutions will fade with the passage of time. But Conway and others say the response from law school leaders and faculty suggests that the time may be ripe for change.

“It’s different this time because there’s kind of a perfect storm,” Mutcherson observes. “Beyond the wave of police killing people of color, people are challenged in the coronavirus era, and it’s pushing people and challenging them in ways that have not been true in the past.”

Students want to see their country changed. “We were told as Black women to color between the lines and don’t have that baby yet and wear your hair straight,” Holley-Walker says. Holley-Walker is delighted to see that, now, many Black women have stopped “following the rules” that expected them to change themselves to fit old norms. She observes that, instead, they are ready to push for more inclusive structural changes.

Nelson adds that there was an assumption with the election of Barack Obama that we are post-racial. “But I think we’re at a different moment,” Nelson says. “Today’s students understand that they’re facing real challenges, and my job is to empower them and equip them with the skills and the knowledge to become leaders and to change what ails us.” With other deans committed, as well, perhaps law schools will be able to play an important part in this new phase of addressing structural racism.

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By Hannah Hayes

Hannah Hayes is a Chicago-area freelance writer.