Apologies to minority law students feel necessary. The ugly side of the American law continues to rear its head. A few weeks ago, you witnessed a legal system—one that eagerly uses petty misdemeanor offenses to control and ruin lives—abscond responsibility for killing a sleeping, innocent Black woman.
A highly politicized U.S. Supreme Court nomination and stories about potential election fraud and voter suppression quickly dwarfed the news that no one would be held responsible for the killing of Breonna Taylor.
I’m a Black criminal law professor who studies inequality in the legal profession. Because of my work, I am in contact with law students across the country. Many are trying to make sense of the disconnect between the law on the books and what they see in the criminal justice system.
I feel compelled to apologize, not because of some personal responsibility, but because the learning of law—particularly for racial minorities—can be intellectually violent. It pales in comparison to the structural and physical violence that people experience outside the ivory tower, but it is also unforgiving, can feel unrelenting and often goes unnamed.
To be sure, you are not alone. White students and members of the general public are also witnesses to the law’s inequalities. But the casebooks and legal authorities you learn from are not teeming with race-conscious messaging. Accordingly, I offer some insights that may have broader resonance: I recommend internalizing three important points.
A harrowing welcome
Students must sometimes reconcile legally sanctioned racial inequality that does not easily accord with their sanitized legal education.
High-profile nonprosecutions and acquittals of people accused of killing racial minorities are primary examples. Instances in which these fatalities are recorded, sluggishly pursued by authorities, or come to light after active government concealment only complicate matters.
For many of you who have personally been subject to racial discrimination, the devaluation of minority lives is nothing new. Those experiences alerted you to the law’s inability to mete out our visceral ideas about justice. The difference, though, is that such injustice confronts you at a time when your training demands—and rewards—an emotionally desensitized all-sides-matter approach to law.
Unfortunately, cohorts of minority students have experienced this type of “spirit murder,” to use the words of law professor and 2000 MacArthur Foundation “genius grant” recipient Patricia Williams. For me, it was the acquittal of Trayvon Martin’s killer, who proudly signs autographs and sells memorabilia tied to that killing. His acquittal was one of many.
To be sure, this kind of “spirit murder” is not confined to this moment. Lawyers of all ages can recall specific incidents that shaped their own experiences in “learning to think like a lawyer.”
From my research on age difference in the legal community, I know that for Generation Xers, some of their moments included the 1991 videotaped beating of Rodney King, replete with more than 50 baton blows by Los Angeles Police Department officers; or the light penalty given to the killer of 15-year old Latasha Harlins in Los Angeles that very same year; or the 1994 killing of Anthony Baez by way of a chokehold; or the 1999 killing of Amadou Diallo, who was shot 19 times while holding a wallet.
For the baby boomers of color who were fortunate enough to penetrate the walls of law schools, it was a Dallas police officer being released after just 2½ years’ imprisonment for shooting and killing a handcuffed 12-year-old boy named Santos Rodriguez in 1973; or the 1980 Miami riot-inducing acquittal of the four officers who killed Arthur McDuffie; or the 1984 killing of Eleanor Bumpurs, a mentally ill, Black senior citizen who was late on rent.
These are only a few high-profile examples. They do not include regional stories that law students were subjected to back when the media unreflexively rubber-stamped police accounts of their own brutality.
Today, there is slightly more popular skepticism of these accounts. There is also visual evidence of police and vigilante killings. Nevertheless, these developments are psychologically damaging and partially offset by a news cycle that normalizes pain and quickly moves to the next topic.
These are the kinds of things you have to hold or compartmentalize as law students. As gloomy as it may sound, this type of public racial degradation is part of the law’s package. Yonkers, New York, poet David Styles put it best: “The game don’t change, only the players. And the pain don’t change, only the prayers.”
Race in the classroom
Students wrestling with the intellectual mismatch of the world’s racial realities on the one hand and the racial silence-cum-neutrality of their legal education on the other hand should know that they are not irrational.
Some instructors who teach criminal justice-related courses may not be responsive to the world’s racial happenings. As a professor, good-faith interpretation of this silence is tied to the fact that some instructors are struggling to process everything.
They might also lack a sophisticated racial vocabulary. Law schools are not swarming with racially diverse faculty, and racial literacy is not a highly valued good. If students are presented with the option of well-intentioned but poorly actualized discussions about race or no conversation at all, I suspect that the results are mixed.
Instructors may be leading a portion of the course that it is not conducive to robust conversations about race. The pace of the semester and the sheer amount of material a professor must cover can preclude careful discussions. Again, legally sanctioned racial injustice is a topic that should not be engaged sloppily. This does not explain the outright absence of such conversations, but it is a relevant reason for silence.
Most grievously, some professors are unbothered or believe that the various instances of criminal justice inequality are irrelevant to their teaching. This would be unsurprising, considering long-standing critiques about race and legal education.
A study published last month by the Law School Survey of Student Engagement found that 26% of Black women in law schools see their schools doing “very little” to create an environment that is supportive of different racial/ethnic identities, as compared to just 5.5% of white men. Legal scholar Jerome Culp, echoing a popular aphorism, once wrote, “you can take them to water, but you can’t make them drink.”
These are not neat categories, and attempts to put instructors in these groups is not a useful exercise. But identifying the existence of these archetypes can be beneficial for students trying to make sense of the racialized legal worlds they inhabit. They should know that it is not abnormal to recognize the racial disconnect between what they learn and see in the world.
Scholars have identified this mismatch as a problem, previous generations have complained about it, students have discussed it at length in office hours, and law faculties across the country have debated this issue.
In the most polemical terms, some might call this disconnect racial gaslighting: a kind of psychological manipulation that leads one to doubt their recognition of racial discrimination. Or the answer may be less psychological, but no less alarming: Legal education is known for undermining student confidence, and this is no different in the sensitive area that is race and the law.
Students who recognize racial gaps in their learning are not wrong for being frustrated, skeptical or confused. These sentiments make sense, especially since legal education—for reasons that are sensible and illegitimate—is not designed to offer the types of racial literacy that all students should receive. Legal education is the problem, not students. Some professors are slowly acknowledging this mismatch, but the jury is still out on this pedagogical issue.
Hope can be difficult to genuinely peddle when it comes to law and racial justice. Nevertheless, there are two tactics law students can employ to deal with racial justice issues in the classroom and in their legal education: compartmentalizing or engaging.
Cordoning off race is not easy, especially when you occupy a body that the legal system devalues. Yet some students instrumentally focus on class material. For them, racial justice is an extracurricular issue that they are disinterested in broaching. The benefits to this approach are mental, psychic and social: It can prevent students from being racial spokespersons or initiating discussions about inequality that should be orchestrated by competent instructors.
Compartmentalization comes with costs. Not publicly advancing questions and concerns about race may deprive your intellectual community of a much-needed perspective and can be criticized as outright freeriding—benefiting from previous and contemporary struggles for more inclusive education. You are the one investing time and resources into your legal education, so how you engage race in law school is a question of your own moral, intellectual and social justice compass.
Alternatively, you can directly wrestle with race, law and other intersectional categories—publicly and privately. Do additional readings that supplement your legal education. Casebooks will not supply you with the robust information you need on issues of racial justice. There are many open-access, racial justice-inspired takes on criminal law, criminal procedure and evidence.
Use these texts to raise deeper, relevant questions in the classroom. Lodge the issue of racial justice in your study groups and office hours. Organize student programming supplements that diversify educational approaches to traditional legal education. This approach requires additional work, and it is intellectually and professionally vulnerable. It unfairly puts the onus on you and reeks of self-help politics. But it may facilitate a form of learning that better approximates the social justice mission that law schools market and students desire.
I’m not here to proselytize on how law students should proceed. As the saying goes, “politics are local.” Paths forward are specific to the person and situation. But I’m here to put you on notice about these issues, contextualize them and identify sentiments that are common in legal education and in these very unprecedented times.
Shaun Ossei-Owusu is 2020 New America national fellow and a presidential assistant law professor at the University of Pennsylvania Carey Law School, where his research expertise and teaching focus on criminal law, the legal profession and social inequality. His book project, The People’s Champ: Legal Aid from Slavery to Mass Incarceration, is under contract with the Harvard University Press. Follow him on Twitter at @ProfOsseiOwusu.
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