By Major Taren Wellman, Assistant Professor, U.S. Air Force Academy
By Maj Wolfgang S. Weber, U.S. Air Force Academy, Assistant Professor Of Law
As educators, we constantly reflect upon how we can make our class an academic journey worth taking. Sure, we could lecture till we’re blue in the face; but is that really as effective (or fun) as an interactive effort that helps students recognize their own strengths and weaknesses within the material?
When I first began teaching, I meticulously walked my students through every single lesson, “If you have a question please don’t hesitate to stop me and ask!” I never wanted to leave a rock unturned; I never wanted to leave the class with lingering inquiries. I would spend countless hours thinking about exactly what I would say each lesson. I felt a need to tell them everything.
From my own classroom failures, I reflected deeply on my deficiencies as an educator. I thought about everything I was doing step by step. I spoke at length with my more seasoned colleagues. Soon, it became clear – I was robbing my students of the opportunity to fail.
Failure is undoubtedly one of life’s best teachers. As we can all likely attest, many of our most profitable educational lessons, both in and out of the classroom, come from failure. Even the most gifted toddler will certainly fall before she learns to walk. In an academic setting, nothing speaks quite as loudly as unmasking a student’s own deficiencies. Of course, this is far easier said than done. In Tony Wagner’s book, Creating Innovators: The Making of Young People Who Will Change the World, Wagner points out that many traditional academic settings penalize students for failure and discourage them to take risk. Thus, as educators, creating an academic environment that teaches students through failure can be an uphill battle.
In all my classes, I am constantly thinking about new ways to allow my students to experience failure. In my law class, throughout the semester every student is assigned the task of creating and presenting a different hypothetical legal scenario that they must then teach the class to analyze. In my negotiations class, at some point each student must negotiate with a classmate while the rest of the class observes. In both instances, I make it a point to not teach the students the applicable material beforehand.
On the day of, the students hesitantly make their way to the front of the classroom – visibly nervous about doing or saying something incorrectly in front of their peers; but before a word ever leaves a student’s mouth, I provide a preface to the class:
Before Sidney and Graham begin, I want to quickly tell them both … ‘thank you.’ While each of them will undoubtedly do some things correctly, they will almost certainly also do some things incorrectly … they will fail. And that’s okay. While we learn in many different ways, one of the best ways to improve is learning from our failures. The Wright brothers didn’t build a flying plane on their first attempt, and none of us, including me, are likely to conduct perfect legal analysis on our first go.
But the important thing is that we all have the courage to make that first attempt, and that we all are open-minded, tactful, and considerate in our criticisms. Let’s thrive together from an academic environment that lauds mistakes and embraces growth. Graham, Sidney – thank you both for being vulnerable in front of all of us today and giving us this chance to learn … please proceed.
As the students proceed, the class watches eagerly. By the end of the exhibition, I ask the students to take a seat, often receiving applause from their classmates without prompting. Then, I unapologetically ask the entire class the tough questions: What did they do right? What did they do wrong, where did they fail? What could they have done better?
On most occasions, the students burst into an array of discussion, both complimenting and critiquing their peers with little reluctance; while their peers themselves anxiously receive the feedback, often following up with further questions about their own shortfalls. From there, I jump into the academic lesson, teaching the material while interweaving it with the student presentation and subsequent dialogue.
Over years of teaching through this method, the results have remained consistent: Nine times out of ten, students fail miserably during these exhibitions. Fall flat on their face. But then, the consequent transition transforms them as they ponder all the hidden lessons that did not initially come to mind. Lightbulbs start flashing above their heads as we discuss the new material. And by the end of the class, they’re smiling. They love it. Within an hour, they have gone from defeat to success. They have experienced growth before their very eyes and they’re better for it. By the end of the semester, student feedback repeatedly reiterates these exercises as class favorites.
ather than lecturing at them, consider creating an environment in which students can readily experience and reflect on their academic weaknesses safely. Set them up for failure in the classroom. Make it an ethos in your classroom by giving them permission to fail. You may find that the only thing more enjoyable … is knowing you prepared them for real world success.
By Allison E. Butler CSULB – College of Business, USC Gould School of Law
Exhibit A: Comparative Chart: U.S. And Italian Constitutional Provisions
Co-Authors: Allison E. Butler, JD and Laura Fabiano in collaboration with Fulbright Award 2019. Allison E. Butler worked with Laura Fabiano with reference to the Italian/U.S. Comparative Constitutional Law.
Instructing constitutional law can be challenging given the broad scope of its content. Notably, the U.S. Constitution not only provides the federal government structure but also provides for numerous enumerated rights and guaranteed personal freedoms. While most instruction in law school is through case law, most students have little idea as to the actual structure and content of this document. This article provides a different approach by requiring students to obtain and assemble a U.S. Constitutional booklet, which is subsequently reviewed in a classroom. This exercise enables learners to recognize and find constitutional citations and provide an overall understanding of the contents of this vital historical document.
- The U.S. Constitution
- Examining the Booklet
The first requirement for this process is to mandate that students download and assemble a free U.S. Constitutional booklet. One day, preferably in the beginning of the course, should be dedicated to reviewing the relevant constitutional provisions prior to actual case law studies. To provide a background on the subject and to begin the instruction, two optional videos can be viewed 1) British Library’s What is the Magna Carta and 2) the History Channel’s The United States Gets a Constitution. While there are numerous other clips, these links are highly effective in refreshing students’ knowledge and providing international students with a general background on the adoption of the document. This review technique can also be facilitated for a comparative or international law class with the students obtaining two constitutions and comparing the two. For example, see comparative chart of the Italian and U.S. Constitutions, set forth in Exhibit A.
- Articles and Amendments
While a review of the applicable provision is subjective, it is necessary to begin with a review of the federal government structure beginning with Article I – Legislative Branch of the Constitution. While discussion on the different legislative branch may be warranted, Section 8 of Article I provides the enumerated rights specifically designated to Congress, which with reference to business law includes, but not limited to, the following:
- Commerce clause to discuss state powers. 
- Copyright and patent clause to discuss intellectual property.
- Coinage clause for possible discussion on cryptocurrencies.
- Creation of inferior courts to discuss the federal court system. 
Section 10 of Article I provides for a brief discussion on freedom of contract that invokes examination of this clause as well as the substantive due process clause, including discussion on the Lochner Era, in which the U.S. Supreme Court continuously struck down numerous state statutes.
Thereafter, Article II is discussed with focus on the Executive Powers. The primary objective here is the executive power to appoint “[j]udges of the supreme Court and all other Officers of the United States” with advice and consent of the Senate; however, this section also provides discussion on current topics ranging from State of the Union to impeachment proceedings. Lastly, Article III establishes the Supreme Court and the judges therein. With the establishment of the three branches of government, students are directed to Article VI, Clause 2, discussing the Supremacy Clause of the U.S. Constitution.
Upon establishing the main content of the constitution, the Bill of Rights is examined, starting with the following:
- Establishment Clause
- Freedom of Speech
- Search and Seizure
- Due process clause – federal
- Taking Clause
- State Powers
These discussions also include a reference to amendments and how they apply to the Constitution leading to the adoption of the 14th and 15th amendment after the U. S. Civil War. The 14th amendment discusses how the due process clause incorporated many of the bill of rights as applicable to the state government as well as the equal protection clause. The 15th amendment illustrates race suffrage and its application solely to the male population but the adoption of the 19th amendment provides for sex suffrage. Another provision worth discussing is the 28th Amendment, prohibition, and its relation to the 21st amendment repealing the prohibition of the transportation or importation of intoxicating liquors. Lastly, discussion of the 26th Amendment provides age suffrage.
After full discussion on the various provisions and applicable case law, the pamphlets can be collected and returned to the students on the day of the exam, which is essentially an “open constitutional exam.” Sample questions can range from what articles establish the Supreme Court to what clauses provide for substantive due process. Moreover, questions can be of multiple-choice, essay, or short answer depending on the mandate of the overall course.
This type of constitutional review provides students with a broader perspective of this instrument of government. Learners learn to navigate the pages while observing the language adopted by courts such as “probable cause” or “supremacy clause,” observing that these phrases are nor fabrication of the courts but language of the constitution itself. This learning technique provides the students with a solid base to begin further examination through case study.
COMPARATIVE CHART: U.S. AND ITALIAN CONSTITUTIONAL PROVISIONS
|Constitutional Provision||United States||Italy|
|Legislature||Article I||Parte II – Titolo I – sezioni I e II (artt. 55 -82)|
|Executive||Article II||Parte II – Titolo III –Sezione I (artt. 92-96)|
|Judicial||Article III||Parte II – Titolo IV Sezioni I e II (artt. 101-113) ;
Judicial Review – Constitutional Court: Parte II, Titolo VI sezione I (artt. 134-137)
|Supremacy Clause||Article VI||Art. 5|
|Reservation of State or Regional Rights||Tenth Amendment||Art. 117 ( more in general on regionalism: Parte II Titolo V artt. 114-133)|
|Freedom of Contract||Article I, Section 10; Due Process of Fifth and Fourteenth Amendment Due Process||Art. 41|
|Freedom of Religion||First Amendment||Art. 7 ; art.19|
|Freedom of Speech||First Amendment||Art. 21|
|Right to Privacy||· The First Amendment; Third Amendment;
· Fourth Amendment; Fifth Amendment;
The right to privacy is most often cited in the Due Process Clause of the 14th Amendment
|Due Process – Procedure||Fifth Amendment (Federal); Fourteenth Amendment (State)||Artt.24-27;
|Due Process – Substantive||Fifth Amendment (Federal); Fourteenth Amendment incorporates application to the States of Fundamental Rights||Art. 2;
Parte I , Titoli I-II-III-IV (art. 13-54)
|Taking Clause||Fifth Amendment||Artt.42-44|
|Voting Rights||Fifteenth, Nineteenth and Twenty-sixth Amendment require that voting rights cannot be abridged on account of race, color, previous condition of servitude, sex, or age for those above 18.||Parte I, Titolo IV (art.48-54)|
Copyright © 2019. All rights reserved.
 Article I, Section 8, Clause 3.
 U.S. Const., Article I, Section 8, Clause 8.
 U.S. Const., Article I, Section 8, Clause 5.
 U.S. Const., Article I, Section 8, Clause 9.
 U.S. Lochner Era wherein development of economic due process (14th and 5th Amendments) [1897-1937]; see also, Arruňada, Benito and Veneta Andonova, Common Law and Civil Law as Pro-Market Adaptations, 26 Wash. U. J.L. & Pol’y 81 (2008); for recent case law on contract clause see, Sveen v. Melin, 584 U.S. ___, 138 S. Ct., 1815 (2018).
 U.S. Const., Article II, Section 2, Clause 2.
 U.S. Const., amend. I
 U.S. Const., amend. IV
 U.S. Const., amend. V
 U.S. Const., amends., I, III, IV, IX and X
 U.S. Const. amend. X
By Sandra Simpson, Gonzaga University School of Law
Over the past six months, I have struggled with what some might call a “mid-life-professor crisis.” As I struggled to keep up with committee work, teaching, writing, applying for promotion, etc., the feeling of being overworked was overwhelming me. I write this post today because I know others struggle with the same feelings. It makes professors wonder if this is the right place and the right job. The answer to that question is intensely personal but the way to get to the answer is not very personal. I took time over the break to look deep into the recesses of my heart and mind asking myself some tough questions: do I make a difference, is this where I want to be, and if so, why? Here is two words that came to the surface again and again: recommit and privilege.
First of all, I realized I needed to recommit to the science and the art of teaching. I needed to put teaching first: before scholarship, before committee work, and before other work responsibilities. We are here to teach students, to perfect that craft, and to dedicate our energy there. The decision seemed so clear to me at that point. Teaching is what I love, and I need to focus on it first. Once I said that out loud and recommitted to that love, my direction seemed so clear: stay with teaching. I have been able to put it first for the first couple of weeks. Feel free to hold me accountable as the semester heats up!
Secondly, once I recommitted to my first love (teaching) I realized what a privilege it is to be able to come to work and teach students how to be lawyers. The last week has been so much more joyful focusing on this privilege. Some may call this gratitude, but I see gratitude as part of realizing the privilege. We are indeed lucky to do this work.
Lastly, once I saw this and felt it in my heart, I knew I had to share this perspective with my students. After I told them what a privilege it was to be a lawyer and to be their teacher, we discussed what lawyers do to make a difference in the world. Some students brought up how helping one person changes the world. As we started to talk and share, I saw the student’s shoulders start to straighten, and, it seemed, their mood lifted. I urged the students to think about what is good in their world and to think about what is a privilege in their lives. This conversation took about 5 minutes and then we continued to learn about grammar and contract drafting. After class, several students stopped me to say thank you for stopping the “rat race” for just a few minutes which allowed them to breathe and be thankful. Take some time to recommit yourself, and, if you feel comfortable, share that commitment and gratitude with your students.
By Tonya Krause-Phelan, WMU-Cooley Law School
Office Hours Are Not Obsolete: Fostering Learning Through One-on-One Student Meetings
By DeShun Harris
57 Duquesne Law Review 43 (Winter, 2019)
In her article Office Hours Are Not Obsolete: Fostering Learning Through One-on-One Student Meetings, Professor DeShun Harris encourages professors to rethink how they use office appointments to enhance student learning. Professor Harris addresses the current notion that technology has reduced, if not eliminated, the need for in-person office hours. While research shows that students tend to typically underuse, or even avoid altogether, the in-person office appointment, professors can overcome students’ perception that office meetings are not worth their time. Because one-on-one meetings provide rich learning opportunities, improve student performance on assessments, and potentially improve grades, legal educators should use effective learning strategies, many of which are being integrated into law school classrooms, to provide students with one-on-one learning opportunities during office hours.
Using strategies to encourage office meetings, professors can overcome the underutilization of office hours. One common misperception students have is that faculty are unavailable or not interested in hosting office meetings; consequently, professors must explain why one-on-one office meetings are important to students. Professors can convey a message through an invitation to attend office hours in the course syllabus; the message can be reinforced during the first class and before and after assessments during subsequent classes.
Once students decide to attend an office meeting, professors must create a welcoming office setting. Doing so conveys a message that the professor is available and does not think the meeting is an interruption. Things to consider when creating a suitable office atmosphere are ease in scheduling the meeting, an uncluttered office, a blank computer screen, and arranging furniture in a way that does not form barriers between the student and the professor.
The student meeting itself should be structured according to the common office hour framework. While there has been little research in the law school setting, Professor Harris points to research conducted at German universities where it was noted that most one-on-one conferences take on a five-sequenced framework. First, the prefacing sequence, involves inviting the student into the office; this can be done by general invitation or a specific request for the student to meet with the professor. The invitation must be extended in a way that is non-threatening. Second, the identification sequence is typically the beginning of the meeting, where the professor greets the student and engages in small talk. Flowing naturally from the identification sequence, the third sequence is outlining the academic business the student wishes to discuss. This sequence should be task-oriented to address the student’s concern/goals. Once the academic business has been outlined, the professor and student can move to the fourth sequence is negotiating academic business sequence. Here, the professor guides the student to a solution. Attention should be paid to writing, thought processing, and behavior that can lead to academic and career success. In working toward a solution, the professor is encouraged to use research on learning science to foster student learning. The fifth and final sequence is the closing sequence. Here, the solution is acknowledged.
Finally, professors must use effective learning methods to create a learner-centered meeting. One method professors can use is retrieval, the act of trying to recall information once learned from memory. Retrieving information is a powerful way to retain information because it strengthens the memory and association with the material, even when students give wrong answers. Another effective learning strategy to use in the office meeting setting is problem-solving. Professors can ask students to answer something that is new to them; then the student explains their thought process in reaching the answer. This also allows professors to give constructive feedback. As a way to aid students in becoming self-regulated learners, professors can also discuss professional development concepts like training, self-study, critical reflection, and feedback.
Professor Harris concludes that office hours are not obsolete. Instead, office hours should be encouraged as they provide important learning opportunities for students. Professors can easily modify the manner in which they currently host office appointments and incorporate effective learning strategies, many of which are being integrated into law school classrooms, to provide students with one-on-one opportunities designed to enhance their knowledges, skills and education.
By Eric Voigt, Faulkner University, Jones School of Law
I have asked myself many times, “Self, could my first-year law students research a legal issue without any guidance from me?” You have probably asked yourself a similar question if you teach a skills-based course. This semester, I decided to create a new assessment measure to answer my question: an online research exam.
Summary of How I Teach Legal Research
My students learn to perform legal research through multiple methods. Students first read the assigned chapters from the textbook I have authored titled Legal Research Demystified: A Step-by-Step Approach. Students then jump online and answer multiple-choice questions on Core Knowledge for Lawyers (https://coreknowledgeforlawyers.com). Core Knowledge automatically grades each answer and provides an explanation (similar to Core Grammar) to reinforce basic research concepts. Next, students complete guided research exercises using the research services and tools they just read about. During class, I discuss the commonly-missed questions and answer their questions. Last, students must apply their research skills to the open memo problem—once again, with guidance from me.
Purpose of Online Research Exam
Despite those formative assessments, I wanted a higher degree of confidence that my students could “fly the research nest” and answer a legal question on any unfamiliar issue. To that end, I am creating an online research exam that my students will take this semester. I have one primary purpose: determine whether my students could find—and understand—relevant statutes and interpretive cases without guidance from me.
Content of Online Research Exam
For my research exam, students will not simply answer questions on research concepts (e.g., What is KeyCite?). Instead, students will resolve a client’s legal question using Westlaw or Lexis Advance. Specifically, they will research state statutes and update them, including confirming their validity, checking effective dates, and reviewing amendments. They will also need to find cases that have interpreted the statutes. Last, students will synthesize the relevant rules and authorities and predict the client’s likelihood of success.
Delivery Format of Online Research Exam
Students will electronically complete my research exam directly on TWEN (The West Education Network), which is my course management system. (Next year, students will be able to complete the research exam on Carolina Academic Press’s platform, Core Knowledge.) Most of the exam contains multiple-choice questions, but it also has a few fill-in-the blank questions and one short answer question. The final question, for instance, requires students to follow CRAC principles (Conclusion-Rule-Application-Conclusion) and write a few paragraphs on whether the client would prevail.
By placing the exam online, I can include questions that build upon prior ones, allowing me to assess students’ understanding of different steps of the research process. For example, suppose a student finds the wrong statutes in response to an initial question. I could still assess whether the student understands how to update the statutes by identifying the correct statutes in subsequent questions and asking about their validity and effective dates.
Because some questions provide the answers to prior ones, I will establish certain limits. Using TWEN’s advanced options, I will prevent students from downloading the exam and viewing any subsequent question until they have answered the question on their screen (called “sequential quizzing”). I will also have TWEN grade the first selected answer for each question, so a student cannot change an answer based on what the student learns from later questions.
I will have students take the exam outside of the classroom, so they will not be limited to our eighty-minute class periods. Students will have a three-day window to start the research exam; once started, they will have three continuous hours to complete it. Students will need the extra time to discern the relevant from the irrelevant authorities, as well as more time to analyze the application of law to the client’s situation.
TWEN’s Grading Features
TWEN has several useful grading features. TWEN automatically grades the multiple-choice and fill-in-the blank questions. As to a short answer question, a professor can electronically mark each one correct or incorrect and can even assign partial credit. TWEN then tallies each student’s scores on all questions. The professor can “release” the grades for all students, allowing each student to view only his or her own grade.
Benefits of an Online Research Exam
Assigning an online research exam has multiple benefits to professors and students, such as the following:
- Professors assess students without giving up an in-person class meeting.
- Professors who assign the exam in lieu of in-person meetings (permitted under the ABA rules) could free up an entire week of classes to provide feedback on students’ draft memos.
- Professors can ascertain whether students have learned how to do “real” legal research.
- Students receive their exam grade immediately upon completion.
- Students discover any weak research skills before the deadline of the open memo.
- Students gain confidence in researching on their own and learn skills that can be applied to the open memo problem.
In short, an online research exam is a good assessment tool for first-year and upper-level students. It could be assigned in an integrated research and writing course or a stand-alone research class. If you would like a copy of my research exam, please email at firstname.lastname@example.org.
By Sandra Simpson, Gonzaga University School of Law
While attending the Institute for Law Teaching and Learning conference this past summer, I learned about live critiquing from Professor Amanda Sholtis from Widener University Law School in Harrisburg, Pennsylvania. Her session captivated me, and it made me want to try live critiquing with my first year LRW students. The following is a brief description of my formative assessment with my first closed-universe writing problem:
- The students are given three heavily edited cases to synthesize and a fact pattern containing a problem to solve. It is a problem which has three elements and, therefore, will have three IRACs (or IREAC, CREAC, etc.).
- We synthesize the cases in class together.
- For the next class, I give them a writing template and a writing example. They are to read those documents and bring a completed draft of the closed-universe problem to the next class.
- During that next class, they were given my rubric to self-assess one of the IRACs they wrote (I choose which IRAC they self-assess in class).
- I give them 20 minutes to work through the rubric with their own paper.
- For the self-evaluation, I instruct them to use the rubric which fully explains what a good issue statement should contain; what a good rule statement should contain; what definitions should look like, etc.
- I also instruct them to note in the margin of their paper what needs to be improved on their paper for each section of the IRAC.
- Then, I give them a “good” example of the IRAC for the same issue which they just worked on for the self-assessment. The “good” example is fully annotated by me, showing the students what is good about each section of the IRAC.
- The students used the rest of that class period to review the “good” example and compare it to their paper.
- I was available during that classroom work time to answer questions, etc.
- Once the self-assessment was over, I told them they need to apply what they learned while writing the final draft.
- Once the students turned in their final draft, which only contained the two un-assessed IRACs, they signed up for a live critique with me.
- I give each student ½ hour to go over their final draft with me.
- I don’t review their final drafts until we are sitting together for the face-to-face conference.
- I have my rubric with me, and I have a “good” copy of the two remaining IRACs with annotations of what is good in each section of the IRACs.
- The students take the rubric and the “good” paper home with them.
- During the ½ hour, I spend with each student, I just start reading his or her paper. I stop periodically and make comments on what is good and what needs improvement. The students take notes, ask questions, and dialogue with me.
I found the process helpful in getting to know my students, getting to know the sticking points in their thought/writing process, and getting feedback on my instructions. The students overwhelmingly preferred it to getting a bunch of comments on a paper which they admit they usually don’t read, and if they do, they often don’t understand them. With the next paper, I gave the students the choice to have live critiquing or written critiquing. Over half of my students chose live critiquing, which I considered a good sign that students liked it.
The downsides to this process, however, are:
- I have 37 first-year LRW students so I spent a lot of time meeting with students. I would, however, have spent the time grading anyway. Thus, I think the time spent is a wash.
- It is stressful to meet face-to-face with students and talk to them about what they are doing wrong. I am a social person, and so I really enjoyed the process.
I found live critiquing inspiring, helpful, and surprising. If anyone would like more information about this, I am happy to engage in a further conversation.
By Sandra Simpson, Gonzaga University School of Law
I hope your semester is off to a great start. I know that I have been silent these last few weeks, but I have been swamped with the end of summer and the start of the semester. I had some time today to post a blog post with a teaching idea on getting to know your students and starting to build a learning community in your classroom. At the beginning of the semester, I sent my students a “Getting to Know You” form which contained the following questions:
- Tell me anything you would like me to know about you.
- How comfortable are you with writing and research? Please give me as much information as you can so I can gauge your experience.
- Why did you decide to go to law school?
- Why did you choose Gonzaga?
- What study methods work best for you?
- How do you learn best in the classroom?
- Think of your favorite teacher; what qualities made that teacher your favorite?
- Think of your least favorite teacher; what qualities made that teacher your least favorite?
These simple questions gave me insights into who is sitting in front of me. I stapled a picture to each of their information sheets so that I could put a face to the information. I am only one week into the semester but the information has already helped me. For instance, when I am forming working groups for the day, I was able to pair students who are comfortable with writing and research with students who are less sure. Also, knowing what study methods work for the students in front of me, helps me shape how I teach each group of students. Because each group of students is so different, it is good to have information about those students rather than creating lesson plans without that information.
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!