By Angela Mae Kupenda, Mississippi College School of Law
One, two, Buckle my shoe…
Three, four, Open the door…
Five, six, Pick up sticks…
Seven, eight, Lay them straight…
Nine, ten, Do it Again Do It Again & Do It Again.!!!!
The children’s game “One, two, buckle my shoe,” takes children through various steps as they learn to count, and then reminds them to repeat the steps again and again for retention. While the original meaning of the song is unclear, the counting process reminds us of the many steps to achieving a goal and how repetition is critical for success.
Taking steps and repetition are also critical with learning to address race intentionally in our courses as law professors. We may prefer to think that race is not present in all doctrinal classes. This assumption seemingly excuses us law professor from addressing race because there is so much other “real law” to cover. Such is simply not the case. Addressing race in our courses is critical if we expect to address real law. In many, if not all, of our courses, racial inequalities either lurk right beneath the surface or are in plain view in the cases and topics we cover. Failing to lead our students in these discussions on race results in our not providing them the best education possible. A racially informed legal education is needed as our students will become leaders in a quite diverse, and quite divided, America.
Hence, the purpose of this essay is to take us through the simple steps, by counting off the steps, to guide us in addressing race intentionally and facilitating unplanned racial discussions in our doctrinal classes.
One, two, Buckle my shoe
Step 1. Grow in awareness of oneself as a “raced” individual in America. Often we as faculty are not automatically equipped to lead discussions on race with our students, because we do not see our own “race.” If we see others as having a race but not ourselves, we are failing to see how America’s legal systems have raced us as individuals or as part of a group. The children’s rhyme chants, “One, two, buckle my shoe,” and suggests that we must first pay attention to ourselves and how we prosper, suffer, and generally live in America as a raced individual.
As legal academics, ask yourself questions like: How am I personally affected by the country’s history and current events as to race and racial privilege or lack thereof? How have the federal and state laws generally treated me and my immediate, and not so immediate, ancestors? How is that different from the treatment of other dominant or non-dominant groups in America? How is that different from the treatment of my diverse students and other people in this country? Asking yourself these questions may make you feel uncomfortable, or even attacked or defensive. But, don’t let the answers shut you down, that is if you want to address race in your courses from a position of self-awareness. Keep in mind, our privilege (or lack thereof) and biases are not the biggest problem–rather our lack of awareness of them is the biggest problem. The great news is that our work in legal education affords us opportunity each semester for necessary personal growth to lead our students into becoming leaders in a racially aware and more welcoming society.
Step 2. Grow in awareness of oneself as a teacher and of one’s calling as a law professor. While inspection of oneself as an individual or as a member of a racial group is step one in buckling one’s shoe, the second step is to grow in awareness of one’s calling as a law professor. Law professors, like teachers broadly, have a special place in America to encourage the opening of minds to new ideas, other experiences, and various perspectives. While law professors have a calling in kind with other teachers, we have a special calling given the role of the law in our democracy. We educate future presidents, legislators, judges and advocates who will continue to shape our systems, positively we hope, even as related to race in America.
So step two entails asking yourself questions, like: What is my calling as a professor? What goals do I have in my teaching? What is my calling toward effectuating more equality in our system? Embrace the power of your position in furthering equality. Ask if you are something more than a video, or a case explainer or presenter. In other words, examine your calling by asking: as a professor, what do I profess? Then ask, why would you want to address race in your courses, or why do you not want to address race in your courses.
I had lunch with a Law School administrator at an Ivy League school, a lovely lunch in a very rich faculty club. He wanted to run something by me. He explained that his school was preparing for an ABA accreditation visit and was concerned with their diversity, or the lack of it at his school if you use traditional measures. His school’s argument was that they were diverse because his school was non-diverse. He said it was diverse because it offered another option for people who do not want traditional diversity. He said they still provide superior education, but in a way different from other schools in that they are not diverse. He wanted to know my reaction.
I repeated his argument back to him word for word, then summarizing: your law school believes it to be offering a superior education by educating future leaders who choose your school for one reason because they want to be unexposed to and unaware of the implications in America of race, gender, class, and so on. He replied: YES, you understand. I then replied, perhaps that could be a superior education if you were working with kindergarten children, but certainly not for legal education, actually not for kindergarten either. After I elaborated on my response, he brought the lunch to an abrupt close, with no dessert. He apparently did not like my suggestion that he and his school should engage in One, two, Buckle my shoe, by, one, examining their own awareness of race and, two, by asking what they considered as the role collectively of their school’s professorship in furthering equality and creating a better country.
Three, four, Open the door…
(note, some versions of the rhyme say “shut the door,” but here “open the door” is better)
Step 3. Open the door of your mind to consider the presence of race in the courses you teach and to consider the consequences of your failing to address race. As professors some of us may think that in our courses our role is to just cover the Black Letter law and not address race at all, or if to address it to cover it in the most neutral/disconnected/bland way. The dominant message in many school books, etc., is that nonwhites are appropriately invisible or inferior. As a result, educators may unfortunately feel more at ease searching for a middle ground that does not question the present message, but also does not reject that message, either.
With this step, identify and acknowledge the many ways that “race” is already present in your courses and just needs to be addressed. Here are just a few examples of courses and the presence of race: Contracts (status to contract, unconscionability, overlap with civil rights cases, gender/racial disparities in negotiating contracts); Civil Procedure (the Walker v. Birmingham case, and much overlap with civil rights cases); Criminal Law and Procedure courses (cases about nonwhite defendants and some of the language in the cases, punishment disparities, the increase of nonwhites in prison post-slavery, death penalty and the Baldus Study in the case McClesky v. Kemp); Business Associations (ownership rights of shareholders who represent a minority percentage interest and the various rules and voting procedures available to protect those minority interests contrasted with protections given minority race voters in the political process, consider Lani Guinier’s book, The Tyranny of the Majority); Health Care Law (for background consider Harriet Washington’s book, Medical Apartheid); Family Law (nonconjugal adoption, transracial adoption, adoption of white children by nonwhites, the laws related to domestic violence and the impact on people of color); Torts (ample cases addressing race are present, and consider damages, valuing of lives, overlap with Civil Rights and Constitutional Law (an interesting case is a federal case regarding the Mississippi flag as inflicting emotional distress on Blacks, Moore v. Bryant); Evidence (eye witness testimony reliability across racial groups, who could be a witness historically versus witness credibility today); Ethics (whether those with certain racial views, affiliations, or exhibiting racist conduct out to be disciplined by the Bar, racial conflict of interest).
If you do not see your subject above, it is only because of brevity of this essay.
In discussing these ideas with the faculty at my school, one of my white colleagues shared that a white student in her Criminal Law course briefed a case in class where the black defendant was referred in the case to as an n _ _ _ _ _. She said the white student used the word in his briefing. She wasn’t sure what to do in class, so she did nothing. After the class a number of the minority students approached her and told her how upset they were. She did not know what to do, so she did nothing and was quite upset with herself as she considers herself a liberal in the south.
I suggested that there were a number of possible approaches she could take depending on whether she thought the word was necessary for an understanding of the case. Perhaps before the cases with such language are covered in class, she could engage the students in a broader discussion of race, language, and the times of the cases. Maybe by having such a discussion, some students would be more racially aware in their briefings or other students would be more prepared with an understanding that not all people share the same disdain with the “n” word. I thought that discussion before or even after the case could possibly enlighten students and expand racial discussions that, mind you, were already happening outside her classroom about how she did not respond in any way in the classroom.
This step is that a professor should plan to address race in class and consider the vehicles to do so. Merely attempting to ignore a smoldering issue, as the professor above did, does not make it go away and does not prepare our students for the diverse society in which they live and will practice law and serve as community or political leaders.
Step 4. Open the door of your mind to consider the context in which you teach. In other words, be open to the possibility that close mindedness may be prevalent at your school. Consider the institutional environment and the consequences of doing what you must do–addressing the racial issues in your courses. First, consider the faculty composition: How many nonwhite faculty members, how many white women, and how many white male professors teach at your school? What about adjuncts? What do these numbers suggest about the potential response (by faculty, administrators, and students) to your addressing the racial issues that are present in your courses? Second, do the same for the student body as a whole and for the usual enrollment in your courses. Third, critically think about whether there is vocal diversity of viewpoint at your school. Fourth, examine how welcoming the school is by taking a look at the curriculum that is regularly taught at your school. Are there, or have there ever been, any race classes in the curriculum? What about other courses like Civil Rights, Women and the Law, Domestic Violence, First Amendment, Immigration Law, Class and the Law, etc? Fifth, consider recent speakers and other invited guests to the campus. Are nonwhites included to a great extent? Are any whites included who hold viewpoints different from any mainstream thought at your school? Don’t overlook the administration’s openness, or closeness, to addressing race. Even consider such matters as the school’s physical environment. Is there any artwork by or featuring people of color or other historically excluded groups? Finally, think carefully about the racial conflicts that have occurred among the students, faculty or administrators. How were the conflicts resolved? Did the conflicts lead to more education about race and the legal system?
An evaluation of your institutional racial environment may leave you discouraged or encouraged. But if it leaves you discouraged, that could just mean that there is lots of opportunity at your school and a great need for someone to take the courageous step of addressing the racial dynamics in courses that many already know are there and are likely privately discussing.
Five, six, Pick up sticks…
Step 5. Pick up your tools. Set the stage. Prepare for the impromptu. Plan for the unplanned. Rehearse for the unrehearsed. One tool I use is introduced on the first day of class. I set the tone with what I call my Greensheet of Professionalism (I call it the greensheet because I copy it on heavy stock green paper. It includes class goals and professionalism expectations). Before the first day of class, ask yourself what climate can you/your students tolerate and what climate is more conducive to addressing race in your course.
One semester, I attempted to build rapport, with my largely white class, first before addressing race. Note: this approach did not work for me, when I did later address race in the materials many white students said they felt betrayed. So for me, starting with day one in my Con Law courses, we discuss the individuals or groups that were left out of the promises of the original constitution. And, I begin the course with individual rights and the Civil Rights cases (majority held congress lacked power to outlaw private racial discrimination; the first Justice Harlan was the sole dissent and he had a half-brother who was a slave). I regularly use judges’ biographies to address race/class/gender in decision-making.
I also have a participation requirement for the course and daily use a participation roster of those who are prepared with the entire assignment. Those students are the ones who get the floor and that I call on, this helps keep the class more focused and keeps it from going awry by students who did not prepare and give thought to the material but want to incite tension in an already tense discussion. In my large classes, I also require students to stand (if they are able) when they orally participate. So, they must stand in and own their analysis and view as to which opinion they are more closely aligned with.
Another tool involves the use of current news and timely issues to address race in the course. For me, an important policy I follow is I only address in the classroom race in the news where it is relevant to the course. Some news accounts I save for later in the course when students have learned the foundational material needed to analyze the issue.
So as to have a consistent approach, consider making addressing the facts and contexts of cases a frequent norm. Then addressing race one day will not be just the exceptional exploration of a case.
Step 6. An important tool in addressing race in your courses is to shift some of that work to the students. Figure out ways to share the responsibility in class for addressing race, in other words plan in advance for inevitable disagreement. We are educating legal professionals after all, so one tool is to get them into the practice of exploring various perspectives different than their own. A frequent statement I make in class is, “I understand your argument. But, a great advocate can argue both sides of a dispute. So, now I want to hear you argue the other side.”
Group collaborative work can also be helpful in teaching students how to disagree even with their friends about issues implicating race in the course. It is exciting to see two students who are friends analyze together how they come to different perspectives on an issue involving race. This is a much better outcome than seeing students silence themselves so they can be liked by a majority.
Seven, eight, Lay them straight…
Now we are familiar with some of the tools to address race, so we now come to the class day where we will address race or have the rehearsed unrehearsed moment for an intense racial issue that is present in the materials.
Step 7. Notice what is going on in the classroom AND within yourself. In step one you understood yourself and the racial issues you are still navigating in your own life. So you know that you must notice your own reaction in the classroom. Sometimes the intensity may be about yourself and sometimes tension may unexpectedly build in the classroom.
So REMEMBER you can slow it down. Some conversations can be delayed until the next class or even taken outside the classroom first. REMEMBER that you are in charge of the class and that your ultimate goal is for students to learn. Use the “sticks” you picked up and the strategies from steps five and six.
Try to keep the conversation with some balance where there are arguable differences, even if you have to make the argument. Always connect the discussion back to the course material. Exhibit zero tolerance for disrespect of students, other faculty etc. Sometimes I have to stop the discussion, take the class back to my greensheet of professionalism, and remind them, “We may attack arguments, but we do not attack people.”
Your lingering issues will show up when students make certain comments. For me, I am still thinking about race and class. I confessed my discomfort to the class when a nonblack student in my Civil Rights class said, “I didn’t know any poor mothers cared about their children.” In my Race and the First Amendment class a nonblack student said, “All blacks call each other n____ you are not a real black, prof, you don’t know about the experiences of real blacks. I know all real blacks do this because my boyfriend is black and his friends call me a n___lover and then they all laugh.” I was the only black person in the room when this statement was made. I managed to engage the class, before taking further discussion outside the classroom with this young woman.
Step 8. If you don’t lay them straight in a given class meeting, you still get another chance and more chances to have a positive impact on the lives of your students by helping them think more deeply about the law and race. A white female in one of my courses said, “I’m from the hills…I have not been around many black people…but what I really think about these people and how they can fix their problems is….” One of her black female classmates was greatly offended by her remarks. Through after class conversations individually with both students and then a discussion in class, we were able to work through and disaggregate the comment and response. Everyone learned. The white female experience much growth through this process. And later when she applied for a position with Legal Services and her future employers questioned me (her reference) about her ability to work with nonwhites, I was able to recount this growth. The young woman got the job and did very well.
Nine, ten, Do it Again Do It Again & Do It Again.!!!!
Step 9. Perform a critique of how you are doing in our courses with addressing race. Evaluate yourself and seek informal feedback from your teaching community, students, alums etc. Analyze and write about your experiences and present about your learning in various settings.
Step 10. Revise and plan again for the next class meeting, next semester, or even the next academic year. Tweak your process for addressing race in your doctrinal classes, experiment with it, but never give up. Remember, for as long as we teach, we get another chance and another!