If you think history has little relevance for you as a law student and soon-to-be lawyer, consider when you last visited a doctor’s office. You were probably asked to fill out a ton of forms.
Most of the questions on the forms focused on your medical history, right? Some of the questions may have asked about the history of others in your family. This is because what you think may be a cold or a virus might not be what it appears, depending on your family history.
History matters.
History also matters for you as a law student and a lawyer. History can help you better understand the origins of current legal issues, recognize strategies that have been deployed in the past to address them, and learn lessons from these efforts to inform your current legal strategies.
It can also show you how the law has been used over time to either deepen inequality or help eliminate it.
I teach about education law, and I recognize that it’s important to understand the history of how education has historically been weaponized to maintain inequality. For example, during the antebellum period, education was criminalized for Black people. Throughout the country, laws were enacted barring enslaved (and in some places, free) Black people from learning how to read or write.
After the Civil War ended slavery, Jim Crow segregation, which sociologist Carter G. Woodson called “slavery’s sequel,” took its place. In the 1927 case of Lum v. Rice, the US Supreme Court validated Jim Crow’s “separate but equal” doctrine in education for the first time. This case also illustrates how all people of color were impacted by the separate but equal education regime because the plaintiff was a Chinese American girl.
In 1954, Brown v. Board of Education invalidated separate but equal. However, continued advocacy, including passage of the Civil Rights Act of 1964 and the Elementary and Secondary Education Act of 1965, brought Jim Crow segregation to its knees.
It’s important to understand this history to understand better modern-day educational inequities, like the continued denial of quality education for too many Black children. Failing to learn this nation’s full history deprives you of a complete understanding not only of how the law can maintain inequality but also of its potential as an emancipatory tool.
If this history sounds like it’s the distant past, consider how recent attempts to erase history by banning books or censoring curriculum is reminiscent of past attempts to deny education to enslaved Black people. Most alarmingly, if we exclude from curricula a true accounting of slavery and America’s past, then we prevent a full and honest reckoning with it and the damage it has inflicted.
For example, slavery was not conditional; it was racial. If we fail to acknowledge this, then we fail to recognize how racism not only upheld the institution of slavery but also justified it. Obscuring this history makes it harder to identify how the legacy of inequality persists today in tropes about the inferiority, incompetence, and inhumanity of Black people that are used to justify their disenfranchisement.
Yes, learning about this history can be difficult. But if learning about it is difficult, imagine how hard it was to live it. I recall meeting Minnijean Brown-Trickey, one of the original “Little Rock Nine” who desegregated Central High School in Little Rock, Arkansas, at an ABA event. She said, “The trauma of Little Rock lives in my body.” Her statement testifies to the reality that history continues to live within people.
One of the obscured history facts that student attorneys learn about in my clinic is how Black educators and school leaders were pushed out of their positions due to resistance to school desegregation throughout the South. Desegregation advocates envisioned school desegregation as a two-way process in which Black children and Black educators would desegregate white schools and vice versa. However, instead of integrating Black educators or school leaders, southern lawmakers demoted them, failed to renew their contracts, or outright fired them.
A variety of legal mechanisms were used to push Black educators out of the workforce. Educators at the Elloree Training School in South Carolina protested a law that conditioned the renewal of their teaching contracts on their denouncing the NAACP. This led to Bryan v. Austin, which was filed on their behalf by the NAACP. The case was appealed all the way to the US Supreme Court before South Carolina legislators withdrew the law.
Leslie T. Fenwick, in her book Jim Crow’s Pink Slip, estimates that 30,000 to 100,000 Black educators and school leaders lost their jobs in the years immediately following Brown. This massive loss of Black educators and school leaders reverberates in today’s teaching workforce.
The Pew Research Center estimates that Black educators comprise only about 7 percent (or fewer than 1 in 10) of all educators in the workforce. Understanding the origins of this pushout can help identify potential remedies, such as teacher pipeline programs to recruit, train, and retain educators.
Indeed, understanding history can help you better formulate potential solutions for persistent legal problems. For example, imagine you’re a student attorney working on a clinic project to address resource disparities along racial lines in public education.
If you try to develop laws or policies to address these disparities without understanding history, you’ll craft inadequate interventions. Knowing how the history of housing discrimination, including how redlining (lenders’ practice of discriminating against communities of color, which resulted in lower property values for those communities) and racially restrictive covenants affected Black people’s ability to own homes and how discrimination impacted the value of their homes, is important for addressing resource inequities.
Why? Most communities fund education through property tax revenue. Consequently, segregated and majority-Black and Latinx communities remain resource-deprived, even when they tax themselves at higher rates. In the 1973 case of San Antonio v. Rodriguez, the US Supreme Court ruled that school resource disparities along racial lines aren’t unconstitutional. This history shows that resource inequities along racial lines aren’t organic or inevitable but constructed through law, policy, and practice.
You could focus your work, for example (as some scholars have suggested), on decoupling education funding from property tax revenue or creating a regional school funding scheme to spread funding between high- and low-wealth communities. It will also be important for you to examine if and how such alternative approaches to education funding have been tried, as well as the social and political forces that have influenced their success or failure.
History will serve you as a law student and lawyer if you heed its lessons. History has a lot to teach us about American society, including how the law has been a powerful tool for promoting equity and justice, even in the darkest days of our democracy.
It’s important for you to take advantage of all opportunities to learn history, inside and outside of the classroom, whether through case law, podcasts, museum exhibits, documentaries, books, or other resources. It may feel uncomfortable, but it’s vital if you’re to be an effective advocate.
An organizer who visited my clinic seminar once noted that organizers—and I’d argue lawyers—are time travelers. They learn from the past, travel to the future to envision what the world can look like, and return to the present to encourage us to act to realize that vision.
Consider civil rights advocates who grew up in the Jim Crow South. Many of them had never lived near or attended school with White people, yet they fought for a vision of what America could be. They had to imagine an integrated world they had never experienced. We’re all the beneficiaries of their imaginations. I propose that it’s your work as a law student and a future lawyer to traverse time, learn lessons from it, and shape a more equitable and just future for everyone.
