Cultural Awareness
Articles are organized by year.
Abuse of Power in the Workplace: The New Gener Discrimination Claims (May 8, 2025)
Abstract
This article draws on our book, Fair Shake: Women and the Fight to Build a Just Economy, to show how the fight for gender equality has changed. Anti-discrimination laws took hold during an era of relative economic equality; the fight for gender equality was a fight to gain access to the rights of white men. Today’s economy creates much greater inequality and reserves the greatest rewards for a much smaller group, again predominately white and male, who can defy the rules and get away with it. In such contexts, anti-discrimination law premised on a fight for equality can provide only limited remedies and cannot be the principal line of offense. These workplaces, while they increase gender disparities, do not act to promote men over women in the distinct identity-based group terms that Title VII was designed to combat. Instead, they select for certain types of managers who are both more likely to be male and to exploit all workers where it serves the purposes of those at the top. Accordingly, the fight for gender equity cannot be cast in terms of an equal right to ascend to the ranks of those oppressing others. Instead, it becomes a fight to confront the abuse of power that shortchanges women in order to enrich the few.
The most effective solutions to tame abuses of power incorporate new bases of liability and new litigation tactics to address the abuses. The most lawless workplaces both exacerbate gender disparities and exacerbate sexual harassment, retaliation, and unscrupulous business practices. The emerging strategies, which the best lawyers have already begun to employ, recognize that abuse of power, once made visible, is hard to justify and becomes a source of employer vulnerability rather than strength.
This article argues that the fight for gender equality today must take place alongside a fight to tame corrupt and abusive workplaces. This article first shows how the abuse of power in today’s workplaces is different from wholesale exclusion of protected groups. The next section examines the limits of conventional sex discrimination claims in promoting gender parity because they cannot challenge the underlying abuses of power that structure workplaces or affect the political environment that allows such abuses to continue. The third section points to new tactics that have had some success in creating accountability, and the final section provides larger structural suggestions on how to move forward.
Justice for All? Examining Workplace Discrimination and the Fight for Equality in the United States (February 28, 2025)
Abstract
Workplace discrimination remains a pervading issue despite the various legislative efforts and protections that are in existence to address this problem. The problem is deeply rooted in the nation's long history of racial and immigrant-based discrimination; it continues to manifest in various forms, disproportionately impacting immigrants and racial minorities. If these discriminatory practices continue unchecked, workplaces should expect a resurgence of exploitative labor conditions, increased economic disparities, and a societal divide, ultimately undermining the progress made in civil rights protections. This essay explores the history of discrimination throughout the United States, the existing legal protections to address workplace discrimination, and the persistent gaps in enforcement that allow employers to engage in discriminatory practices with minimal consequences. Through an analysis of various statistics, lawsuits, and first-hand accounts, this essay highlights the need for stronger legal enforcement, better worker protections, and stronger societal advocacy to address workplace discrimination effectively. Without substantial policy changes and cultural shifts, vulnerable communities will continue to face barriers to workplace equity and fundamental civil rights.
Religious Law Schools, Ranking, and Bias: Measuring the Rankings Penalty at Religious Law Schools (February 23, 2025)
Abstract
Law school rankings play a pivotal role in shaping legal education. However, these rankings have faced substantial criticism for their methodology, susceptibility to manipulation, and bias related to political ideology and race. This Article measures bias by applying a novel, quantitative analysis to disparities between the objective overall rankings and the subjective peer rankings among religiously affiliated law schools. The findings reveal that religiously affiliated law schools experience a 17.65 peer rankings penalty. Further analysis strengthens the evidence of bias by showing a heightened penalty among more devoutly religious law schools. And a longitudinal analysis finds that this trend is rapidly increasing along with correspondingly increasing political partisanship.
This result elicits discussion regarding numerous aspects of rankings, legal academia, religious education, and bias. This is of particular importance given the numerous benefits religious legal education offers through its holistic approach. This study provides a novel framework for further research on bias in legal academia and contributes to the ongoing debate about law school rankings. Finally, it raises broader concerns about the treatment of religion in legal academia and the importance of fostering diverse perspectives. The Article concludes by providing a pragmatic solution to eliminate these biased distortions in the rankings, resulting in a more transparent, equitable, and merit-based outcome.
Reverse Discrimination and the Fight Against DEI: Examining the Impact of American Alliance for Equal Rights v. Fearless Fund as a Blueprint for Challenging DEI Efforts (December 27, 2024)
Abstract
The American Alliance for Equal Rights challenged the Fearless Fund’s Fearless Strivers Grant Contest under 42 U.S.C. §19811, stating that 51% black woman owned application requirement was discriminatory to several members- identified as Owner A, B and C, and that but- for their members' race they would have been able to apply to receive the funding.2 The American for Equal Rights appealed the Northern District of Georgia decision to deny a preliminary injunction.3 The Eleventh Circuit Court granted certiorari to decide whether the Fearless Stivers Grant contest, an entrepreneurship funding competition open only to business [51%] owned by black women violates, 42. U.S.C. §1981, which prohibits private parties from discriminating on the basis of race when making or enforcing contracts.4 The Court ruled in favor of The American Alliance for Equal Rights finding that (1) the Appellants had standing to sue and (2) exemplified irreparable harm if there was no injunction. The opinion was led by Judge Newsome in a two to one split decision.
This paper argues that the Fearless Fund decision provides a strategic roadmap for anti-DEI organizations to assert standing and advance reverse discrimination claims, posing significant challenges to DEI efforts across various sectors. This article will also explore the historical discrimination across the venture capital industry, by examining the historical lack of funding for Black women-owned businesses. It will also discuss reverse discrimination.
Furthermore, this article will demonstrate the importance of DEI programs, argue for their protection. Finally, this article will propose a path forward to ensure the safety of programs like the Fearless Funds, while illustrating that investing in diversity programs is an investment in America’s future.
Critical Race Thinking in a Pro-Black Space: An Asian American Law Professor’s Reflections on Teaching at an HBCU (December 1, 2024)
Abstract
With the recent Supreme Court decision invalidating long-standing race-conscious admissions policies in higher education, SFFA v. President and Fellows of Harvard College (2023), Historically Black Colleges and Universities (HBCUs) have become even more relevant in the educational landscape. As admission to Historically White Institutions become more elusive and as racial diversity at these places plummets, HBCUs are expected to admit even more people of color and continue their powerful tradition of educational access.
I taught at an HBCU law school for ten years. In my experience, even though they face serious challenges, these institutions continue to have much value. Relying on the Critical Race Theory methodology of counter-storytelling as a form of anti-racist resistance, this Article is my personal account of how teaching at an HBCU transformed my thinking about race and justice in America and the powerful contributions that these institutions continue to make for their students, the people who work at them, and for our society.
This Article titled Critical Race Thinking in a Pro-Black Space: An Asian American Law Professor’s Reflections on Teaching at an HBCU proceeds in four parts. Part I discusses my experiences applying for and working at an HBCU law school. I then describe the important lessons that I have learned during that time. Part II describes how I realized that race and law were socially constructed concepts. Part III details how I learned that what we understand as governing equal protection principles were socially constructed by mostly White male decisionmakers to the detriment of people of color. Finally, Part IV explains how I came to know that racial identity was also socially constructed and could be re-constructed in more empowering ways.
By writing this Article, I aim to highlight the ways in which HBCU law schools can continue to contribute to our understanding of race and the law in our society and help us embrace education as the practice of freedom.
LinkedOut? A Field Experiment on Discrimination in Job Network Formation (October 1, 2024)
Abstract
We assess the impact of discrimination on Black individuals' job networks across the U.S. using a two-stage field experiment with 400+ fictitious LinkedIn profiles. In the first stage, we vary race via AI-generated images only and find that Black profiles' connection requests are 13 percent less likely to be accepted. Based on users' CVs, we find widespread discrimination across social groups. In the second stage, we exogenously endow Black and White profiles with the same networks and ask connected users for career advice. We find no evidence of direct discrimination in information provision. However, when taking into account differences in the composition and size of networks, Black profiles receive substantially fewer replies. Our findings suggest that gatekeeping is a key driver of Black-White disparities.
The Politics of Prestige: Increasing Ideological Discrimination in Law School Rankings (September 1, 2024)
Abstract
This study utilizes a novel metric to measure bias in law school rankings. The result of an astounding 53.14 spot rankings disparity attributable to political ideology elicits discussion regarding numerous aspects of rankings, academia, and bias. Combined with other, documented evidence for ideological discrimination in legal academia, a strong, cumulative case is created. The lack of ideological diversity in academia that result from such bias produces widespread harm to professors, students, practicing attorneys, and society at large. Fortunately, this study concludes by proposing a simple, effective solution that circumvents this particular manifestation of ideological bias in legal academia.
This study provides a valuable framework for examining a confluence of events at this critical juncture in legal academia and in society at large. Consequently, this study is also highly informative regarding larger questions, such as what role law school rankings should play, the ethics of how law schools alter their behavior based on the rankings, and the role of ideological discrimination in legal education and the practice of law. Finally, the corresponding increase in political partisanship in society with increasing ideological disparity in the law school rankings calls in to question the level of subjectivity involved in peer rankings. These novel findings should serve as a powerful catalyst to spark future research in related areas.
Mandatory Anti-Bias CLE: A Serious Problem Deserves a More Meaningful Response (February 22, 2024)
Abstract
This essay addresses the problematic convergence of two recent trends: (1) the expansion of jurisdictions requiring anti-bias training (ABT) as part of mandatory continuing legal education (CLE), and (2) the growing recognition among social scientists that such training, at least as currently practiced, is of limited effectiveness.
Forty-six American states require continuing legal education (CLE), and eleven of these states now require lawyer ABT as one facet of CLE requirements. I have previously criticized the mandatory CLE system because so little evidence supports the conclusion that it results in more competent lawyers. The central question tackled by this essay is whether there is any reason to believe that ABT requirements have had or will have any more impact on bias in the law than general CLE requirements have had on lawyer competence. The answer, unfortunately, seems to be no, or at least not as ABT requirements are currently defined and regulated.
Part I of this essay summarizes the very real problems that mandatory lawyer ABT aims to address: bias in the legal profession and bias against individuals caught up in the legal system. Part II describes the debate over mandatory lawyer ABT and the various requirements imposed by adopting states. Part III addresses the lack of empirical evidence or other reason to believe mandatory lawyer ABT is an effective response to bias in the law. Finally, Part IV considers an alternative path for mandatory lawyer ABT, one that engages in ABT research and responds to that research in ways that result in more intentional and meaningful ABT going forward.
ABA Standard 303(C) and Divisive Concepts Legislation and Policies: Challenges and Opportunities (February 16, 2024)
Abstract
This article by six clinicians discusses the challenges and opportunities of new ABA Standard 303 (c), including the implications of and interactions between Standard 303(c) and “divisive concepts” laws and other threats to representation, academic freedom, and free speech in legal education. The article also highlights the intersection of Standard 303(c) and Standard 303(b)(3), which addresses professional identity formation; discusses opportunities to adapt current curriculum and teaching and create new curricular responses to meet the new accreditation standards and interpretations; and explores ways to resist increasing limitations and find a supportive academic community to sustain hope and resilience.
Beyond Anti-Discrimination Law: Realizing Equality Through Other laws, Such as Tort Law (2024)
Abstract
This paper draws on ideas from discrimination theory in order to develop a general characterization of the ways in which tort law perpetuates inequalities of social status. Section I explains why tort law is a particularly fruitful place to look when seeking to develop a general characterization of the ways in which legal rules and practices subordinate certain social groups; and it explains why we should not equate inequalities in social status with purely economic inequalities. Section II present examples of the kinds of rules and practices in tort law that can subordinate. Section III uses these examples, together with the work of discrimination theorists, to develop a general classification of the different ways in which legal rules and practices can contribute to pervasive social hierarchies on the basis of such traits as gender, race, sexual orientation, and disability. Sections IV and V discuss the theoretical and pragmatic benefits of the classification that the paper has developed.
Access to Justice and the Legal Profession: Three Questions (2024)
Abstract
There is an increasing recognition – from all sectors of the legal system, including the former Chief Justice of Canada – that justice is in crisis. Even though we have some of the best judges, lawyers, and law schools in the world, delays in the civil, criminal, and family justice systems are massive and increasing. Costs of legal help are going up. An increasing number of people are trying to represent themselves. Legal aid is available only for the least well-off and only for a limited range of services. Many communities feel alienated and do not see themselves represented by the justice system. Public trust and confidence in the legal system is being challenged. According to the president of The Advocates’ Society, “we’re approaching a breaking point.” Something must change.
The Time is Now: ABA Standard 303(C) as The Impetus for A Truly Inclusive 1L Classroom (December 14, 2023)
Abstract
This fall, law schools were required to implement the American Bar Association’s new Curriculum Standard 303(c), which requires that all law students be educated on bias, cultural competency, and racism. In this Essay, I argue that the American Bar Association’s new Standard is our chance to finally take the steps scholars have advocated for many years and make the law school experience, especially the 1L curriculum, more inclusive. Anything otherwise would be strongly antithetical to the underlying goals of the new standard.
Standard 303 and the Development of Student Professional Identity: A Framework for the Intentional Exploration of the Profession's Core Values (October 8, 2023)
Abstract
Legal educators, following the change in ABA accreditation Standard 303(b)(3), must face directly the question “what are the core values of the legal profession?” This article offers a framework both to help faculty and staff clarify their thinking on what are the profession’s core values and to spotlight the choices law schools need to consider in purposeful fashion.
The framework offered here should also help allay two concerns that faculty, staff, and students may have about core values of the profession. One concern is that all statements of values are subjective in the sense that they are expressions of individual subjective preferences, beliefs, and attitudes.
Cultivating Equal Minds: Laws and Policies as (De)Biasing Social Interventions (October 2023)
Abstract
To address issues of bias and discrimination in many areas of social life, scientists have developed a variety of strategies to debias people's minds and reduce discrimination and the disparities that stem from it. A large body of research has documented, however, that debias trainings have short-lived effects on changing patterns of thinking (i.e., they last less than 24 hours) and minimal effects on behaviors. In this article, I argue that such limited effects of one-time trainings are to be expected, given the segregated and stratified social structure we live in that was created by historic and contemporary laws and policies. After explaining the mechanisms through which laws and policies create biased people, I then explain how laws and policies can instead be used as levers to create long-lasting changes in biases.
Critical Race Theory Bans and the Changing Canon: Cultural Appropriation in Narrative (May 22, 2023)
Abstract
Thirty-five states have enacted critical race theory bans at the level of elementary and secondary public education, and seven states have extended these to the university level. One way to resist these attempts to repress a healthy democracy by whitewashing history is through a pedagogy of antiracism, including literary works. The question of what that would look like involves questions of cultural appropriation, which occurs when one takes from another culture, such as a writer creating a narrative about a character outside of the writer’s cultural identity. This Article considers the story of Ota Benga, brought from the Congo to the United States to be exhibited at the 1904 St. Louis World’s Fair as a pygmy, and in 1906 at the Bronx Zoo. In addition to discussing Benga’s physical appropriation for the purpose of demonstrating scientific views about the racial superiority of whites, this Article considers literature about Benga and the literary canon in general, in order to explore the complicated question of when does a cultural appropriation harm the insider or marginalized community, such that the work should be deemed a failure and excluded from the literary canon. Literary works that succeed in depicting another culture are important and effective tools for a pedagogy of antiracism because they offer empathic portrayals and social critiques of racism.
The Color of Law Review (April 6, 2023)
Abstract
This Article argues that law review’s diversity problem must be viewed in the broader context of sociopolitical efforts to eradicate racial injustice in the United States and reform legal education. Applying a critical racial lens toward efforts to promote DEI in law review, this Article clarifies three fundamental drivers of law review’s diversity problem, with implications not just for law review, but for legal education writ large. First, this Article claims that the purpose of DEI for law reviews is not solely to increase the number of racially and ethnically minoritized students on the law review roster to enhance the learning experience of student editors, but also to realign the distorted function of law review with its ideal purpose. Second, it argues that the role of law review’s DEI is not merely to increase the equality of opportunities for underrepresented students or broad-based discussion of marginalized experiences and diverse perspectives of law, but also to challenge the fundamental structure of the sociolegal institutions that coordinate legal education in the United States. Finally, this Article contends that the value of DEI for law reviews is not simply the increased number of marginalized voices engaged in mainstream legal discourse, but, perhaps most importantly, the inclusion of voices into mainstream legal discourse that do not always have the perceived academic merit or societal prestige necessary to gain.
The Purpose of Legal Education (March 4, 2023)
Abstract
This Article argues that the anti-racist, democratic, and movement lawyering principles advocated by progressive legal scholars should not be viewed merely as aspirational ideals for social justice law courses. Rather, querying whether legal systems and political institutions further racism, economic oppression, or social injustice must be viewed as endemic to the fundamental purpose of legal education. In so doing, this Article makes three important contributions to the literature on legal education and philosophical legal ethics. First, it clarifies how two ideologies—functionalism and neoliberalism—have threatened to drift law school’s historic public purpose away from the democratic norms of public citizenship, inflicting law students, law faculty, and the legal academy with an existential identity crisis. Second, it explores historical mechanisms of institutional change within law schools that reveal diverse notions of law school’s purpose as historically contingent. Such perspectives are shaped by the behaviors, cultural attitudes, and ideological beliefs of law faculty operating within particular social, political, and economic contexts. Third, and finally, it demonstrates the urgency of moving beyond liberal legalism in legal education by integrating critical legal theories and movement law principles throughout the entire law school curriculum.
Discrimination in the Formation of Academic Networks: A Field Experiment on #EconTwitter (January 13, 2023)
Abstract
This paper experimentally documents discrimination in the formation of professional networks among academic economists. We created fictitious human-like bot accounts that claimed to be PhD students in economics, differing in three characteristics: gender (male or female), race (Black or White), and university affiliation (top- or lower-ranked). The bot accounts randomly followed Twitter users who form part of the #EconTwitter academic community. Follow-back rates were 12% higher for White students compared to Black students; 21% higher for students from top-ranked universities compared to accounts of lower-ranked institutions, and 25% higher for female compared to male students. The racial gap persisted even among students from top-ranked institutions, suggesting that Twitter users racially discriminate even in the presence of a signal that could be interpreted as indicative of higher academic potential. Notably, we find that Black male students from top-ranked universities receive no more follow-backs than White male students from lower-ranked institutions.
The Buffalo Model: An Approach to ABA Standard 303(c)'s Exploration of Bias, Cross Cultural Competency, and Antiracism in Clinical & Experiential Law (January 5, 2023)
Abstract
This essay offers initial contemplations shortly after the inception of a new opportunity for clinical and experiential legal education in the United States: the addition of 303(c) to the ABA standards, requiring that law schools “shall provide education to law students on bias, cross-cultural competency, and racism.” This new law school accreditation obligation concretizes what many clinicians, externship directors, and other experiential teachers have been doing for decades: teaching inclusion, justice, and belonging. Clinical Legal Education programs historically have centered teaching student attorneys about cultural competency, anti-bias, diversity, difference, and related issues.
The Way Forward for Legal Education (January 3, 2023)
Abstract
This book (of which this paper is an excerpt) offers a post-pandemic vision for the future of legal education and charts a path to get there. Among the book's recommendations are that schools must dispense with the LSAT and develop an alternative non-discriminatory admissions process. Further, that law schools should admit a much larger cohort to the 1L year, at much reduced cost, and put most of 1L content online in a hybrid format. It suggests that a "baby bar" be administered at the end of the first year, with only roughly half passing into second year and the rest awarded a master's degree in American Law, which will become a credential to become an Limited License Legal Technician (LLLT), the expansion of which will help address the critical justice gap that we currently have in the legal system. It argues for the expansion of experiential learning and the intentional formation of professional identity in the 2L and 3L years. While these proposals may seem radical at first, many of them are already happening in various natural experiments around legal education, and the ABA is already moving in this direction. This book provides comprehensive guidance on how these proposals can be gradually adopted, with the goal that they spread throughout legal education over the next decade.
De-normalizing Racial Bias in the Bar Examination: Two Pragmatic Solutions (January 25, 2023)
Abstract
The legal profession has a long history of excluding members of communities of color from the practice of law. Historically, this exclusion was intentional—a function of the harmful and false belief that one’s race is a factor in one’s ability, or right, to be a lawyer. Today, people from communities of color continue to be excluded from the profession due to systemic, structural, and invisible racism. One contemporary method of exclusion is the bar examination which has been persuasively shown to produce racially and ethnically biased results even after controlling for other factors like student entering credentials and tier of school. This Article contends that fifty years of knowing the bar examination produces racially and ethnically biased results and failing to fix the problem is too long. Our approach to solving the problem must change. We must stop relying on the State Supreme Courts, the State Bar Examiners, and the National Conference of Bar Examiners to eliminate racial and ethnic bias in the exam. This Article proposes two paths to fixing the bar examination. First, we must develop successful legal approaches for suing the entities involved. As this Article shows, certain state entities responsible for adopting and administering the law may be subject to suit on Equal Protection, Due Process, Title VII, and contract grounds. The fear of such litigation or damages associated with their success could drive the change we are seeking. Second, law schools must take a more active role in solving the problem. Recent empirical research shows that changes to pedagogy can raise bar passage rates—provided they are the right changes. Law schools could reduce the impact of racial bias in the exam by adopting these pedagogical practices and thereby increasing the bar passage for graduates from communities of color to combat the exam’s structural and systemic bias.
After the Demise of Affirmative Action, Ensuring Equitable Access to Educational Opportunities (September 1, 2023)
Abstract
On June 29, 2023, the United States Supreme Court held in two related cases that race-based affirmative action in college admissions is unconstitutional, because it violates the Equal Protection Clause of the 14th Amendment. What is next in (higher) education after the Supreme Court’s rulings in Students for Fair Admissions? The decisions may dramatically transform college admissions and even how universities think about allocating their resources and about their role in a democratic society. Even now, the Court’s holdings are rippling past highly selective college campuses to corporate boardrooms, non-profits, and state legislatures.
Despite the Court banning race-based affirmative action in college admissions, new empirical analysis of a novel big data set demonstrates that Asian American applicants to highly selective colleges are 28% less likely to be admitted than white students with similar standardized test scores, high school GPAs, and extracurricular activities. This Asian American admissions penalty is primarily due to legacy admissions and preferences for geographical balance. This Essay advocates that highly selective colleges end legacy admissions to diversify America’s economic, political, and social leadership. This Essay also advocates ending the recruiting of athletes in such elite sports as fencing, rowing, sailing, and water polo. This Essay suggests ending the practice of early decision. This Essay also endorses effectively cloning highly selective colleges. Finally, this Essay offers practical and pragmatic answers to questions about how to change education for the better.
The Equal Protection-Fourth Amendment Shell Game: An Essay on the Limited Reach of the 2023 Affirmative Action Cases, the Fourth Amendment, and Race Beyond Skin Color (July 19, 2023)
Abstract
In striking down race-conscious admissions at Harvard and the University of North Carolina, the Supreme Court used lofty rhetoric about the importance of ending race discrimination, even calling the command of Equal Protection “universal.” In three ways, this Essay explores the legal and practical limits of the affirmative action cases and illustrates how the Court’s claimed concern about race discrimination rings hollow. First, this Essay discusses state actors permitted to use race in their decision making—the police. Unlike elite universities whose policies are subject to exacting scrutiny, the Supreme Court permits police to use race when deciding whom to seize under the Fourth Amendment under deferential forms of review. In fact, Fourth Amendment doctrine is so deferential it largely forbids race-based challenges racial-based policing and requires such arguments be raised under the Equal Protection Clause. Then, the kicker: under the version of Equal Protection Clause applied to the police even admittedly race-based actions do not necessarily violate equal protection. The result is a shell game between the Equal Protection Clause and Fourth Amendment where claims of racial bias cannot be effectively challenged under either provision. Second, this Essay discusses a perhaps overlooked aspect of the affirmative action cases that provide an obvious path for adopting race-conscious admissions in the future. In particular, the Court explicitly affirmed that eliminating specific acts of discrimination permits race-conscious decision making. Given there is no dispute that many elite universities previously had racially-discriminatory policies, exploring this avenue would seem to be legally viable. Whether elite universities will pursue this route is a tough, improbable ask—universities would need to admit and quantify their own acts of race discrimination. Whether they will do so remains to be seen. Third, to show the limits of the affirmative action cases from another angle, this Essay offers a reflection on the Court’s arguments about “stereotyping” and suggest they erroneously reduce the concept of race to skin color. Both as an empirical fact and matter of lived experience, race is far more skin color. The Court’s contrary assessment of stereotyping cannot be squared with the realities facing people of color, no matter their faith, creed, politics, hobbies, or upbringing. In the end, race matters because it permeates the fabric of our lives even if the constitution—in the affirmative action context but not for the police—is now supposed to be “colorblind.”
Moving Beyond the Basics of the ADA and Section 504: Opportunities for Equitable and Inclusive Access to Law Libraries, Collections, and Services (May 26, 2023)
Abstract
The law library plays a role in the lives of people with disabilities by facilitating their full participation in society. Providing equitable access for persons with disabilities to library facilities and services is required by Section 504 of the Rehabilitation Act of 1973 (Section 504), applicable state and local statutes, and the Americans with Disabilities Act of 1990 (ADA). The ADA was created to eliminate discrimination in many areas, and most libraries are covered by the ADA’s Title I (Employment), Title II (Government Programs and Services), and Title III (Public Accommodations). Section 504 is another federal law designed to protect the rights of individuals with disabilities in programs and activities that receive federal financial assistance from the U.S. Department of Education. Recipients of this federal financial assistance include institutions of higher education. This article provides a brief overview of the Americans with Disabilities Act and Section 504 of the Rehabilitation Act of 1973, and why law libraries must comply with these laws to provide equitable access for persons with disabilities. Although the traditional view of access is defined as physical access to the library or the building it resides in, this article asserts that equitable and inclusive access to the law library should be aligned with the expectations of the ADA and Section 504. Law libraries should employ a more holistic approach and reexamine how they define and apply accessibility to their collections, programs, and services. There is debate in the disability community about identity-first language or person-first language in relation to disability.
Spillover Effects of Black Teachers on White Teachers' Racial Competency: Mixed Methods Evidence from North Carolina (June 23, 2023)
Abstract
The US teaching force remains disproportionately white while the student body grows more diverse. It is therefore important to understand how and under what conditions white teachers learn racial competency. This study applies a mixed-methods approach to investigate the hypothesis that Black peers improve white teachers’ effectiveness when teaching Black students. The quantitative portion of this study relies on longitudinal data from North Carolina to show that having a Black same-grade peer significantly improves the achievement and reduces the suspension rates of white teachers’ Black students. These effects are persistent over time and largest for novice teachers. Qualitative evidence from open-ended interviews of North Carolina public school teachers reaffirms these findings. Broadly, our findings suggest that the positive impact of Black teachers’ ability to successfully teach Black students is not limited to their direct interaction with Black students but is augmented by spillover effects on early-career white teachers, likely through peer learning.
Death by a Thousand Cuts: The Impact of Gender Bias on Career Progression (September 11, 2022)
Abstract
Progress has been made in the last century toward reducing gender bias in society at large and in the workplace specifically. The negative impact gender differentiation has on women’s careers, however, is not gone. Differential treatment and biases have moved from explicit to more implicit. These biases are rooted in decades of modeling and stereotyping women as communal and men as agentic, thereby casting women as caregivers and men as leaders. The stereotyping influences women’s professional lives by tainting both supervisors’ and employees’ decisions. The differentiation starts already in hiring decisions, which include decisions on who to hire, at what rank, and how much to pay. Once women are hired, the bias continues in task allocation and performance evaluation, which determine immediate compensation and subsequent promotions. Thus, women’s career progressions are made more complicated throughout their entire participation in the workforce. The multifaceted nature of the problem suggests that only a holistic approach can significantly reduce gender bias.
Is Title VII an 'Anti-Discrimination' Law? (June 7, 2021)
Abstract
Title VII of the Civil Rights Act of 1964 is commonly referred to as an “anti-discrimination” statute. At its core, we are told, it prohibits something called “discrimination.” But does it? Startlingly, the answer is no—not really. Instead, Title VII prohibits certain acts done for certain reasons. True, the reasons are precisely what everyone has long understood them to be—”because of . . . race, color, religion, sex, or national origin . . . .” But the law’s prohibited acts do not require “discrimination,” and in those cases where the term “discrimination” is relevant, “discrimination” does not connote any wrongfulness on the employer’s part and therefore does not mean what it might colloquially be thought to mean, i.e. the act of making an unjust distinction. In short, Title VII is not an anti-discrimination statute, at least not as we ordinarily conceive of the concept of discrimination.
Pivoting Under Pressure: Cultural Proficiency, Race, and Reforms (September 1, 2022)
Abstract
There is a new conversation in legal education about a pernicious problem. As the COVID-19 pandemic raged in spring 2020, legal educators around the country had to pivot to remote teaching. At the same time, racial protests erupted in response to the brutal and successive killings of Ahmaud Arbery, Breonna Taylor, and George Floyd. As law schools grappled with the pressure of the latest racial reckoning, Black law faculty and students demanded cultural change within legal education in response to their devastation, desperation, battle fatigue, and frustration. Unwilling to accept the performative diversity efforts of the past, there was a clear demand for immediate, comprehensive, and reconceptualized action: diversify legal education, increase scholarships for diverse students, hire more faculty of color, divest investments in private prisons, create administrative positions focused on inclusion initiatives, and reform the traditional curriculum to integrate the operation of race in the law. Unfortunately, many law schools were ill-equipped to meet these demands, especially in a remote learning environment.
Reckoning with Structural Racism in Legal Education: Methods Toward a Pedagogy of Antiracism (December 1, 2022)
Abstract
Specifically, this Article describes a five-part pedagogy of antiracism that may be used by legal educators of all experience levels, together with a variety of concrete strategies for putting it into practice. While this methodological superstructure may take somewhat different forms depending on an educator’s identity and experience, its core strategies include: (A) understanding antiracism and developing cultural proficiency; (B) understanding and accounting for students’ identities and experiences; (C) teaching substance truthfully and in context; (D) implementing inclusive teaching processes; and (E) being actively accountable for choices and harms. By adopting this pedagogy in ways both intentional and continual, law teachers have the potential to counteract the effects of structural racism and contribute to conditions for its dismantlement.
High Anxiety: Racism, the Law, and Legal Education (August 10, 2022)
Abstract
Conspicuously absent from the United States’ ongoing discourse about its racist history is a more honest discussion about the individual and personal stressors that are evoked in people when they talk about racism. What if they got it wrong? The fear of being cancelled - the public shaming for remarks that are deemed racist - has had a chilling effect on having meaningful conversations about racism. What lost opportunities! This paper moves this discussion into the law school context. How might law schools rethink their law school curricula to more accurately represent the role systemic racism has played in shaping the law while still respecting community members’ different perspectives about racism pedagogy? As in our broader society, law school community members’ fear of 'getting it wrong' and possibly being cancelled has had a chilling effect on having candid conversations about racism within legal education and the law. In this discussion, the author prescribes one of the first dispute system frameworks for implementing pedagogy on racism in law school, highlighting the different racial stressors ignited in doctrinal, clinical, skills, and experiential learning classes. The dispute resolution system is built on a restorative justice framework and draws on an interdisciplinary understanding of the physiology and psychology of racial stressors. Building on that knowledge, the paper explains how racial stressors, if constructively addressed, can actually enhance learning about racism and better prepare law students for real-world practice.
Get Out: Structural Racism and Academic Terror (April 23, 2022)
Abstract
This article explores the relationship between structural racism and academic terror in the legal academy and articulates an effective framework for analyzing academic terrorism.
Leadership to Address Implicit Bias in the Legal Profession (March 15, 2022)
Abstract
This Article discusses the problem of implicit bias within the legal profession; why its persistence impedes the work that lawyers do; and the need for leaders to take steps to recognize, understand, and ameliorate it. Implicit biases, also referred to as unconscious biases, are prejudices that people have, but are unaware of their existence. These biases act as mental shortcuts based on known stereotypes and social norms that cause people to make decisions that favor one group to the detriment of another. Even though the United States has laws prohibiting discrimination on the basis of race, religion, gender, and disability, these laws are incapable of confronting the systemic racism perpetuated by implicit bias. A law will not prevent people from reacting to biases that they are unaware they hold. For this reason, leaders cannot lead fully and equitably without first discovering what biases may be influencing their decisions at the sub-conscious level. This Article calls for leaders within the legal profession to educate themselves about implicit bias, discover what implicit biases they harbor on a personal level, take time to ensure that their decisions are not being influenced by such biases, take steps to de-bias, and lead their constituents to do the same. Their decisions will be better and their clients and the legal profession will benefit immeasurably.
Who’s Matched Up? Access to Same-Race Instructors in Higher Education (November 21, 2022)
Abstract
Despite recent evidence on the benefits of same-race instructor matching in K-12 and higher education, research has yet to document the incidence of same-race matching in the postsecondary sector. That is, how likely are racially minoritized college students to ever experience an instructor of the same race/ethnicity? Using administrative data from Texas on the universe of community college students, we document the rate of same-race matching overall and across racial groups, the courses in which students are more or less likely to match, the types of instructors students most commonly match to, and descriptive differences in course outcomes across matched and unmatched courses. Understanding each of these measures is critical to conceptualize the mechanisms and outcomes of same-race matching and to drive policy action concerning the diversity of the professoriate.
Corporate Gender Culture (July 4, 2021)
Abstract
We show workplace culture is gendered. We apply computational linguistic models to listed firms’ reports to an Australian gender-equality agency to construct the first systematic measures of ‘corporate gender culture’—firms’ practices pertaining to the treatment of women across seven dimensions, from recruitment and promotion to maternity leave and sexual harassment. Our measures reveal that firms treat women systematically differently from men, but also that gender differentiation varies across industry and firm characteristics. The cultural dimension that best predicts women’s representation in corporate leadership is also the one that best predicts firm performance, namely equality of training opportunities.
Exploring Race and Racism in the Law School Curriculum: An Administrator's View on Adopting an Antiracist Curriculum (March 15, 2021)
Abstract
This article provides a candid assessment of the demanding, and rewarding, work that is required to put into action the written words of institutional support for implementing an Antiracist curriculum. This article starts by describing the two Penn State Dickinson Law faculty resolutions that committed the faculty to condemn racism and bias against our Black and Brown brothers and sisters, while committing to teach and learn according to Antiracist pedagogy and best practices. It then describes the resolve to become Antiracist teachers, discusses the investments in curricular policy and reform, and details the bureaucratic processes to accomplish the following: adding a first-year required course on the history of racism and the concept of equal protection of the laws in the United States; adding a J.D. degree requirement that every student take at least one course beyond the first year with subject matter focused on civil rights, equal protection, or social justice; adding a certificate program in Civil Rights, Equal Protection, and Social Justice; and encouraging faculty to re-envision their courses to identify opportunities to integrate discourse about racial equality. The article then explores the knotty but essential task of equipping faculty and staff with the tools needed to deliver an Antiracist curriculum. The law school initiated this task by launching a summer workshop series designed to conduct an honest assessment of the educational community’s past failings while providing the resources needed to alter the law school’s future course. To accomplish these objectives, the workshops embraced a model that encouraged risk taking, allowed for blunt feedback, and created plenty of space for mistakes. In closing, this article offers guidance on how to ensure a sustainable commitment to the delivery of an Antiracist curriculum, including the importance of sharing the implementation work with faculty committees and student organizations. The path from commitment to implementation has involved bumps and curves, some anticipated and others unexpected. As the path continues, a guiding principle remains: to fulfil our responsibilities as legal educators uniquely positioned at “the nexus of power and understanding necessary for change.”
Critical Race Theory and Medical Education (April 2021)
Hicks, Stephen R. C., Critical Race Theory and Medical Education (April 2021)
Abstract
This article makes five claims: Biological essentialism the problem as it is both false as a scientific theory and gives rise to “dehumanization and discrimination.” But current medical education “continually” teaches biological essentialism and so healthcare students are “constantly exposed” to it. By contrast, Critical Race Theory (CRT) is “uniquely equipped” to solve this problem. A course for healthcare students that applied CRT achieved good results against racism. I have, correspondingly, five brief comments in response to Tsai’s article, which is a generally clear statement of CRT and an educational experiment based upon it, yet is marked by theoretical overstatements and a series of binary contrasts that understate the range of options in combatting racism.
What is Cultural Cognition, and Why Does it Matter? (October 2021)
Abstract
By all accounts, we currently live in a polarized political state in which virtually every fact is contestable. From climate change to vaccine efficacy, people feel free to choose their own facts to support politically charged arguments. Partisans in every area of American life are unable to agree on the basic assumptions underlying political debate. Research on cultural cognition demonstrates that people's political and cultural commitments shape how they process information from news sources, scientists, and public officials, thereby dictating which policies they support and which ones they oppose. When partisan loyalties determine what evidence people will accept, political compromise becomes difficult or even impossible. All is not lost, however. Cultural cognition has a powerful influence, but facts are stubborn things. In some areas of public debate, facts and evidence have overcome political divides. Furthermore, an understanding of the influence of cultural cognition can facilitate remedies to partisanship. This article examines the research that demonstrates the extent of cultural influences on people's understanding of public debates, identifies the limits of cultural cognition, and describes the extent to which cultural cognition itself provides keys to breaking down partisan divides.
A Guide to Help Lawyers, Law Students, and Business Professionals Develop Cross-Cultural Competence (July 22, 2021)
Abstract
"Cross-cultural competence" is the "ability to understand people from different cultures and engage with them effectively." It involves "`the ability to function effectively in another culture', consisting of three interdependent dimensions: 1) an affective dimension (personality traits and attitudes), 2) a cognitive dimension (how individuals acquire and categorize cultural knowledge), and a communicative, behavioral dimension (being an effective communicator)."
Black Lawyers Matter: Enduring Racism in American Law Firms (July 7, 2021)
Abstract
Scholars and practitioners have looked extensively at patterns of racial inequality in U.S. business law firms. In the corporate bar, pull factors that have long shaped legal professionals’ careers include promotions, outside job offers to move from one firm to another, or family priorities that may lead to leaving the labor force altogether. Push factors, such as discrimination, problems with management, and work-life conflict also precipitate work transitions. Beyond business law firms, however, an important question remains open to empirical scrutiny: How does race affect career moves in the contemporary American legal profession? In this article, I address this question by using data from the first nationally representative, longitudinal survey of lawyers in the United States. This study is one of the few that employ event history analysis as a statistical technique to examine legal careers. It also draws from in-depth interviews to unravel how lawyers describe their experiences in law firms. Findings from the assessment of work histories of over 4,000 law school graduates from the time they were admitted to practice in 2000 show that, all else being equal, Black lawyers are pushed out of private law firms at much higher rates than white lawyers. These legal professionals detail how race influences the distribution of assignments and the promotion process within American law firms. As Black lawyers continue to strive for racial equality, these results indicate that race-conscious remedies remain critical not only for the future of law firms but for the broader legal profession.
Law School Rankings and The Impossibility of Anti-Racism (August 25, 2021)
Abstract
The only schools enrolling black students at the same level as their representation in the general population are the schools U.S. News ranks so poorly that they are not even assigned a numerical ranking, listed only as Tier 2 schools. This is because the metrics used to evaluate success are themselves racist metrics which devalue blackness and overvalue whiteness and wealth. Undoing this cycle of perpetuating and reinforcing racism requires the reexamination of fundamental assumptions on which our society is based. Assumptions like America being a meritocratic society and that we live in a just world perpetuate systemic racism. Mechanisms that mitigate the impact of systemic racism in legal education and beyond exist, but while corporations are now widely adopting these mechanisms and decreasing racial inequity, legal education is unlikely to follow suit because real antiracism in legal education will reduce institutional profitability.
How to Include Issues of Race and Racism in the Torts Course for First Year Law Students: A Call for Reform (December 12, 2021)
Abstract
Race and racism have always played a significant role in the U.S. tort system as research has long shown and as hundreds of published decisions demonstrate. Do torts casebooks reflect the importance of race and racism in torts? The article first surveys 23 torts casebooks published from 2016 to 2021 to see whether and to what extent they discuss race and racism. Most avoid discussions of race and racism in torts; and although they always discuss tort history, they omit the racial history of torts. Although publishers frequently issue new editions of torts casebooks, newer editions generally have not expanded their focus to include race and racism. Two notable exceptions are the new open source casebook, TORTS: A 21ST CENTURY APPROACH, by Prof. Zahr Said, and TORT LAW AND PRACTICE by Prof. Dominick Vetri and co-authors.
Following the casebook survey, the article turns to this question: How can professors incorporate issues of race and racism in their torts courses? I recommend that law teachers incorporate issues of race and racism in first year torts courses in two major ways. First, law professors should teach a number of pedagogically interesting cases that deal with race and racism and that also illuminate significant doctrinal issues. This article suggests specific cases keyed to most of the important doctrinal areas in torts. These cases are less known than cases that are commonly taught, but they are also important and can convey the relevant doctrinal points equally well. Second, law professors in teaching damages should include material on the devaluation of injuries to African-Americans in torts. Important background also includes information about the unequal distribution of liability insurance – a key part of the torts system – by race. Since torts is a required first year course, and race and racism have had a significant role in the U.S. torts system, law students should gain at least a general understanding of race and racism’s role in torts. Including race and racism in torts courses strengthens the first year curriculum. While this may seem daunting for some instructors, ample materials now on offer make it very feasible. The time is certainly ripe for this essential change.
“To Be a Good Lawyer, One Has to Be a Healthy Lawyer”: Lawyer Well-Being, Discrimination, and Discretionary Systems of Discipline (April 3, 2021)
Abstract
In 2017, a National Task Force on Lawyer Well-Being comprised mostly of representatives from lawyer assistance programs (LAPs) issued a report recommending “modify[ing] the rules of professional conduct to endorse well-being as part of a lawyer’s duty of competence.” This Article evaluates one of the premises underlying the report’s recommendations: “[t]o be a good lawyer, one has to be a healthy lawyer.” A review of medical studies and evidence offered by LAPs and others in support of these claims indicates that there is no empirical evidence that substance use and other mental health disorders “are leading causes of malpractice suits and ethical disciplinary actions against attorneys.” Further, medical evidence strongly suggests that many lawyer well-being interventions currently being proposed offer little to no mental health benefits and are more likely to prevent than encourage treatment engagement.
This Article then evaluates professional well-being (or wellness) policies, communications, and ideology, focusing specifically on discrimination based on mental health disorders and disabilities. It contends that lawyer well-being policies and communications are likely to result in biased appraisals of lawyers under the American Bar Association’s Model Rules of Professional Conduct 1.1, 1.16(a)(2), and 8.3(a), and act as a subterfuge for violating the Americans with Disabilities Act. It also discusses the potential for well-being policies to create and sustain hierarchy, and result in discretionary systems of discipline and social control over the private conduct of legal employees. Finally, it concludes with recommendations to reinforce the employment rights of legal employees; eliminate the role of LAPs and associated entities in providing education about mental health and well-being; improve protections from unwarranted mental health inquiries and evaluations; and reject lawyer well-being policies and derogatory rhetoric that put people with mental health disorders and disabilities down.
Reducing Debt and Increasing Access to the Profession: An Empirical Study of Graduate Debt at U.S. Law Schools (June 2, 2021)
Abstract
Legal education in the United States is in crisis because it is so costly and the number of law school graduates has consistently exceeded the number of entry-level law jobs by a wide margin, while starting salaries are low in comparison to student loan debt for most graduates. This article contributes to the work of addressing the current challenges by reporting the results of an empirical study of the nature and scope of law graduate debt across U.S. law schools.
We focus on findings in two areas. First, the data indicate that the legal education system places a greater financial burden on minority and women students than on non-Hispanic white male students. The cost of attendance, average amount borrowed, percentage of the class that borrowed, and percentage of students paying full tuition are all higher at schools with lower LSAT/UGPA medians and larger percentages of minority and women graduates. Moreover, these schools also report weaker employment outcomes for their graduates.
Second, we also investigated the relationship between cost of attendance and debt. As to be expected, the data show that the average amount borrowed by graduates who borrowed to attend law school increased as the cost of attendance increased. We also see that different schools located in areas with comparable costs of living sometimes list very different estimated living expenses. At the same time, some schools with comparable costs of attendance report significantly different average amounts borrowed. Thus, it appears that there are differences in school practices, policies, and cultures apart from costs of attendance that may impact borrowing levels.
In light of our findings, we highlight several proposals for returning to a legal education financing model that distributes scholarships based primarily on need instead of LSAT scores and UGPAs in order to reduce law student borrowing and to promote access to law school and the profession. In addition, we urge greater attention to how institutions set estimated living expenses, provide debt counseling, and otherwise influence student borrowing; and suggest an updated approach to enforcing ABA Standard 507, which requires law schools to “demonstrate reasonable steps to minimize student loan defaults.”
The Lawyers Justice Corps: A Licensing Pathway to Enhance Access to Justice (2021)
Abstract
The idea for establishing a Lawyers Justice Corps (LJC) emerged out of efforts to solve a problem: how to license lawyers at a time when COVID-19 had expanded the need for new lawyers while also making an in-person bar exam dangerous, if not impossible. We—the Collaboratory on Legal Education and Licensing for Practice --proposed the Lawyers Justice Corps to provide a different--and better--way of certifying minimum competence for new attorneys while at the same time helping to create a new generation of lawyers equipped to address a wide range of social justice, racial justice, and criminal justice issues. When implemented, the Lawyers Justice Corps will accomplish two critical and related goals: enhancing access to justice and creating an effective and equitable method of licensing lawyers.
This essay begins by outlining the general contours of the Lawyers Justice Corps. It then explains how the Corps will enhance access to justice for the many underserved clients in our society. In a third section, the essay describes the racial injustice perpetuated by the traditional bar exam, as well as the exam’s failure to adequately measure lawyer competence. A final section shows how the Lawyers Justice Corps would provide a licensing path that both trains for and better assesses competencies required for law practice. The essay concludes that the time is ripe for multiple alternative licensing paths, including the Lawyers Justice Corps.
Educating Antiracist Lawyers: The Race and the Equal Protection of the Laws Program at Dickinson Law (March 5, 2021)
Abstract
As educators, we have a unique opportunity and important responsibility to combat racism in our educational mission. We must do more than transfer legal knowledge and skills to our students. We must cultivate within them a principled, enduring commitment to work for true equality over the course of their careers and to practice law in a way that promotes the equal treatment of all. To do this, we must reconsider not only what we teach, but how we teach it.
This article sets out one possibility. It describes the Race and Equal Protection of the Laws program at Penn State Dickinson Law.1F It describes a teaching method I developed for the task of teaching students about the relationship between race and our legal system. It describes how over 50 students, faculty and alumni worked together to create the substantive content of the course. This innovative program draws upon the principles of Critical Pedagogy to develop an educational approach with the objective of transforming how our students see their place and role in our flawed, evolving democracy. It incorporates the literature of different scholars commonly referred to as Critical Race Theorists to help students recognize the indicia of structural racism and better understand its root causes.
Moving Toward a Competency-Based Model for Fostering Law Students’ Relational Skills (March 2, 2021)
Abstract
Legal education has long been criticized for failing to provide adequate professional training to prepare graduates for legal practice realities. Many sources have lamented the lack of sufficient attention to the range of competencies necessary for law graduates to be effective practitioners and develop a positive professional identity, including those that are intra-personal, such as self-awareness, critical self-reflection, and self-directedness; those that are interpersonal, such as deep and reflective listening, empathy, compassion, cross-cultural communication, and dialogue; and those that engage with the social/systemic dimension of lawyering, such as appreciating the role of multiple identities, implicit bias, privilege and power, and structural racism. For this article, we refer to this entire set of competencies as relational competencies. One notable exception to this sustained critique of legal education has been the field of clinical legal education, including law school clinics and externships. Nevertheless, what is still lacking is a more systematic approach to clinical law students’ supervision around the knowledge, skills, and values connected to relational competencies. In this article, we aim to begin a conversation about how we can move to a competency-based approach to supervision of law students’ in clinics and externships. We draw significant guidance from the field of psychology, where there is a well-established track record in using a competency-based approach to supervise trainees. By emphasizing the importance of relational competencies in legal education, we can more effectively promote well-being among students, their current and future clients, and the legal profession’s culture. Ultimately, we hope to invite a broader conversation about a more holistic approach to legal professionals’ licensing and ongoing supervision.
The Makings of a Culturally Savvy Lawyer: Novel Approaches For Teaching and Assessing Cross-Cultural Skills in Law School (November 1, 2020)
Abstract
All 205 American Bar Association-accredited Law schools in the U.S. must now define learning outcomes for their credit-bearing Juris Doctorate (JD) courses, and publish them. There is a developing trend for law schools to formulate and include learning outcomes that go beyond the minimal requirements. One emerging learning outcome that is presently adopted by about a quarter of all U.S. law schools relates to teaching and assessing cultural competency as a JD learning outcome. In this Article, I focus on this JD student learning outcome and develop three key points. First, I highlight and discuss why cultural awareness and inter¬cultural skills is an increasingly critical skill set for all law students. Second, I review the various stages of cultural competency, highlight the barriers to acquiring a more nuanced cross-cultural skill set, and discuss habits that can foster law students’ cross-cultural skills development. I next discuss the law school curriculum and how strategies could be adopted to introduce, or increase exposure to, “culture” in both non-clinical doctrinal law courses and law school clinics, providing options for law professors for incorporating and assessing these emerging student learning outcomes in a law school setting. The Article ends by offering options for more general intervention strategies that law school Deans and administrators can consider to raise cultural awareness on a law school campus-wide basis.
Preparing Lawyers for Practice: Developing Cultural Competency, Communication Skills, and Content Knowledge through Street Law Programs (June 1, 2020)
Abstract
Street Law is a legal education methodology designed to increase civic engagement, critical thinking skills, and develop practical legal knowledge in non-lawyers. Law students at Georgetown began using Street Law methods to teach high school classes in the 1970s. While Street Law was designed to help high school students, the programs were also crafted to provide authentic experiential opportunities for law students. However, little research had been done to measure the educational benefits for those law students. We designed the study that is featured in the article to assess those goals. We conclude that Street Law provides significant and often unique benefits for law students including developing vital cultural competency skills, practicing legal communication with non-lawyers, and cementing content knowledge in a non-academic environment. This article includes a comparison of the legal practice benefits of Street Law and other traditional and clinical credit-bearing law school courses. We recommend that law schools offer Street Law as an experiential component of the clinical program. Over half of the law school-based Street Law programs in the United States do not award course credit to participating law students. We further conclude that Street Law is equally meritorious and because of the rigorous, academically and professionally valuable experience gained from participation in Street Law programs, all law students should be awarded academic credit for their work.
Promoting Diversity and Inclusion in the Legal Profession: The Significance of Giving Voice and Listening to Persons Who Experience Discrimination, Bias, and Harassment (May 20, 2020)
Abstract
Let’s admit it, harassment and bullying are endemic in the practice of law. Horacio Benardes Neto, the President of the International Bar Association (IBA), made this observation in introducing an IBA report, called Us Too: Bullying and Sexual Harassment in the Legal Profession. Published last year, the report was based on findings from the largest-ever global survey of nearly 7,000 legal professionals in 135 countries. The survey revealed that one in three female respondents and one in fourteen male respondents had been sexually harassed at work. Additionally, one in two female respondents and one in three male respondents reported being bullied at work.
Online Legal Education & Access to Legal Education & The Legal System (May 22, 2020)
Abstract
Online delivery of legal education is a potential solution to this problem as it is uniquely well-suited to provide education to dispersed populations. To the extent developing online forms of legal education leads to creative efforts to rethink traditional models of legal education, rather than just putting cameras into existing classrooms and letting students in remote locations participate via technology in a class conducted elsewhere, it may also allow legal education to be provided at a lower unit cost, expanding the access benefits.
The Cultural (Re)Turn: The Case For Teaching Culturally Responsive Lawyering (June 22, 2019)
Abstract
Recent changes to the American Bar Association’s (ABA) accreditation standards require law schools to adopt learning outcomes that demonstrate competencies for legal practice and to measure progress toward this goal. Absent from the new requirements, however, is any mention of “culture.” Instead, “cultural competence” is included as an optional skill, which law schools may choose to identify and measure (or not). But culture is anything but optional. In light of contributions from psychology and cognitive science, and calls from the bench and bar, law schools can no longer avoid including culture in meaningful, sustained, and integrated instruction throughout the curriculum. Building on critical legal scholarship and the movement to foster cross-cultural lawyering competencies in clinical education, this article proposes culturally responsive lawyering as a new orienting framework for legal education and for law practice. Culturally responsive lawyering specifically rejects the notion that cultural competence is an optional skill, divorced from other core competencies. Rather, culturally responsive lawyering is grounded in a deliberative process, which extends deeper than outward-facing performative skills. Culturally responsive lawyering acknowledges that culture and law exist in a mutually constitutive relationship and employs both transformative legal analysis and intercultural sensibility to meet the ethical requirements of competent lawyering. In addition to sketching a theoretical framework, this article proposes learning outcomes and curricular strategies for culturally responsive lawyering that can be interwoven into any law school course.
'Race, Racism, and American Law: A Seminar from the Indigenous, Black, and Immigrant Legal Perspectives' (June 26, 2019)
Abstract
Flagrant racism has characterized the Trump era from the onset. Beginning with the 2016 presidential campaign, Trump has inflamed long-festering racial wounds and unleashed white supremacist reaction to the nation’s first black President, in the process destabilizing our sense of the nation’s racial progress and upending core principles of legality, equality, and justice. As law professors, we sought to rise to these challenges and prepare the next generation of lawyers to succeed in a different and more polarized future. Our shared commitment resulted in a new course, “Race, Racism, and American Law,” in which we sought to explore the roots of race and racism and the legal system’s treatment of Native Americans, African-Americans, and immigrants. While we remain uncertain of the success or efficacy of our efforts, this article describes the course, our approach, and some lessons we learned in hopes of promoting additional thought, discussion, and work toward eradicating racism. Perhaps most importantly, our experience demonstrated the limits of traditional legal pedagogy to effectively address these topics. Instead, we found that new approaches—relying on personal disclosure, collaboration, and work across the arbitrary divisions between areas of the law—provided firmer bases for empowering our students to deal with and move beyond America’s ongoing legacy of race and racism.
Interpreting Equal Protection Clause Jurisprudence under the Whiteness-Bell Curve: How Diversity Has Overtaken Equity in Education (2017)
Abstract
Racial inequities in educational opportunities persist despite decades of race-based "affirmative action" policies pursuing integration and diversity. The late Professor Derrick Bell long argued that the Equal Protection Clause of the Fourteenth Amendment, standing alone, would not provide racial equality for Blacks. His conclusion was premised on his Interest-Convergence theory, which posits that the interests of Blacks in achieving racial equality will be accommodated only when it converges with the interests of Whites. In response to recent critiques and incomplete defenses of Professor Bell's theory, this Article builds on the contention that a fusion of his theory with Professor Harris's vision of Whiteness as Property would benefit Professor Bell's thesis. The resulting theoretical paradigm, which I have dubbed the Whiteness-Bell Curve, posits that advances in racial equality in the United States proceed pursuant to a Revocable License Model in accord with three rules: (l) moments of racial progress are occasions whereupon the oppressed group gains access to Whiteness; (2) this access will only be granted, as an accommodation to Black interests in racial equality, under terms that will not abrogate the value of Whiteness; and (3) such access is revocable if it diminishes the value of Whiteness without a sufficient offset in political, economic, social, or psychological benefits. The Article claims that this hybrid model retains salience for interpreting the evolution of Equal Protection Clause jurisprudence concerning the contours of constitutionally viable, race-conscious policies in education. The insights of the framework further illuminate the ways in which Revocable Licenses disproportionately benefit affluent Blacks. The Article concludes with a call for reconstructing "Black interests," as a potential strategy for moving beyond the constraints of the Whiteness-Bell Curve, so as to generate further racial equity in education.