Guest Post: Legal Education and the Illusion of Inclusion
Shaun Ossei-Owusu
Presidential Assistant Professor of Law
University of Pennsylvania Carey Law School
A new semester and a potentially new political landscape are upon us. Last month law students around the country resumed coursework. Their educational pursuits are virtual, in-person, or some mix of both. No matter the format, law students continue their educational journey in an ideologically polarized pandemic society where race, class, and gender disparities are on sharp display.
Students will also be learning in a context where changes in our legal system may have direct relevance to their legal education. As is typically the case, a newly constituted Supreme Court has a diverse docket this term that might shape substantive areas of law that students take courses in, chiefly constitutional law. There will be regulatory shifts that come with new administrations. These kinds of changes will have meaning for administrative law and related areas of law: health law, environmental law, employment law, and civil rights, to name a few. COVID-19 has upended state and federal judiciary systems in ways that have still-undetermined implications for procedural courses law students take (e.g., evidence, civil procedure, criminal procedure) and access to justice issues more generally. And we know from the late Deborah Rhode’s work which communities access to justice issues tend to devastate—racial minorities, women, and other marginalized populations.
Notwithstanding future uncertainty, one thing can be said with some measure of confidence: issues of race and gender—amongst other social categories—will remain relevant inside and outside the sometimes intellectually-cordoned off walls of law schools. How these issues are integrated in the classroom, if they are at all, will affect the substantive learning of law and will either include or exclude historically marginalized groups.
In the specific context of legal education, the results of Law School Survey of Student Engagement’s (LSSSE) Annual Survey illuminate. The Report provides a glimpse into how law schools fail to meet the aspirational goal of inclusion that often takes up primetime real estate on their websites and promotional materials. From my own read, the most jaw-dropping finding is intersectional in nature and about Black and Latinx women law students—aspiring attorneys who are often told that they do not look like lawyers when they transition to practice. 26% of Black women respondents and 17% of Latinx women respondents reported that their schools do “very little” to support racial and ethnic diversity.
Disenchantment with the lack of support for diversity can be distilled even further. The Report notes that men varied on the issue of gender inclusivity, with 39% “very much” believing that their schools support gender diversity compared to 27% of women and 9% of individuals who identified with the “other gender” category.
In the context of race, student views also differed, with 9% of White students, 14% of Native American students, 18% of Latinx students, and 25% of Black students believing that their schools do “very little” to ensure that students are not stigmatized based on identity.
Where sexuality and sexual orientation are concerned, 11% of heterosexual students think their schools do only “very little” to avoid identity-based stigma; conversely, 20% of gay students, 16% of lesbian students, 15% of bisexual students, and 19% of those who identify as another sexual orientation see their schools as doing “very little” in this regard. What do these findings mean for legal education and the political moment I gestured to in the beginning?
LSSSE’s data suggest that some students are dissatisfied with the six-figure education they are receiving. Put plainly, law students from backgrounds that the profession has historically excluded—women, racial minorities, LGBTQ communities, and people with disabilities in particular—do not feel part of the academic community and believe law schools are relatively disinterested in their stigmatization. In some ways, this is unsurprising, as there is a deep scholarly literature and genre of books on student disappointment with law school. Moreover, student disenchantment with legal education—which has a history of exclusion that traces back to the nativism and anti-Semitism of the early twentieth century—may in some ways be pre-determined.
The confines of the classroom, which is one of the many areas the LSSSE survey discusses, provides more insight into the inclusion-exclusion dyad. From the vantage point of some educators, law school is simply about training people to be lawyers. The most generous reading of this position suggests that social justice-like ideas like “inclusion” are too ideologically weighty to meaningfully bring in the classroom. For people who subscribe to this view, attempts at inclusion can create impossible-to-navigate landmines for professors. More skeptically, some see inclusion as an ancillary. Read in this light, the primary goal is to inculcate legal knowledge. For these professors, some things are not relevant to the practice of law and are therefore not relevant to legal education.
Such professional school-based views of legal education, vary in their reasonableness, but are held by swaths of the professoriate. Yet, there is a two-fold problem, and this is where the LSSSE survey is especially useful. First, this vision of legal education rubs up quite abrasively against the representations of law schools as bastions of inclusion. Second, this version of education, in some ways, undermines the well-touted “diversity rationale” in affirmative action jurisprudence. What does diversity mean when the subjects of diversity feel alienated?
Considering the mismatch between some students’ experiences and the stricter professional school model of legal education that some professors are beholden to, there are some options. Educators can simply be more intellectually honest about the reality that law school is a site of professionalization where inclusion principles can be trivialized. Alternatively, law schools can continue to disingenuously hitch the law school wagon to social justice rhetoric while failing to actualize inclusion as a practice. Or, in the most courageous and imaginative versions of themselves, law schools can refashion their curriculum and use developments in the legal world as opportunities to offer more inclusive learning environments.
For law schools committed to the third way, resources abound. Complaints about the need to diversify the content of law school courses have existed for decades. Scholars such as Derrick Bell and Dorothy Brown have authored casebooks that describe how race intersects with different areas of the legal curriculum, whereas feminist legal theorists, poverty researchers, scholars of law and sexuality have penned their own books, supplements, and articles that all give educational guidance on how to bring these issues into core courses, and do so in ways that are doctrinally sound. Still, some professors—many of whom have the most analytically sharp minds on their university campuses—throw their hands up in despair or continue with the same regularly scheduled program. For some of these instructors, these conversations were absent in their legal education, and they were likely not trained to incorporate these issues. Some may think it would be better to leave this work of thematic inclusion to their more expert colleagues (e.g., scholars of race, sex, class, disability) rather than wade into territory where they are sure to mess up. But throwing one’s hands up in despair is increasingly a less credible course of action. The pandemic, along with the protests of 2020, have forced some people to rethink how they deliver course content, and more importantly, have made inequality a more prominent theme in our public discourse. The current socio-political moment, and the reality of pandemic pedagogy, call for curricular redesign.
Fortunately, the tools to make the classroom more inclusive are available and they are not limited to the usual courses. To be sure, law professors have written about how first-year courses like criminal law and property are inattentive to inequality in ways that produce the responses found in the LSSSE survey and have offered suggestions on how those same courses could easily be improved. But attempts to diversify and create a more inclusive curriculum are not confined to these foreseeable areas of law but can be found in more unsuspecting places like evidence, corporate law, trust and estates, and intellectual property, to name a few.
Law professors have also identified space in the curriculum for trans-substantive engagement with the kinds of questions and perspectives that demonstrate an awareness of inequality, both in legal education and in law more generally. Indeed, I, along with my colleague Karen Tani, have taken on the task of trying to simultaneously create an inclusive learning environment that rigorously addresses inequality by creating a 50-person Law and Inequality course at Penn Law. This endeavor and more meaningful engagements with diversity need not be limited to women, racial minorities, and sexual minorities. Inclusion also implicates and has meaning for the larger law student population. One of the most understated findings in the LSSSE Report is that 16 percent of white students believed law schools placed “very little” emphasis on issues of equity and privilege and do not prioritize providing students with the skills necessary to confront discrimination and harassment.
My purpose here is not to proselytize teaching a course like the one we are offering. Instead, I want to highlight how student dissatisfaction with inclusion, which the Report highlights in detailed and accessible fashion, can be situated within this critical juncture. 2021 is a unique moment where law schools can reimagine legal education in real time, and for a post-pandemic world. This will not be easy, as this is a stressful time for faculty—some of whom are in high-risk groups during the pandemic and/or have a variety of care obligations. COVID-19 has upended a lot of assumptions and forced people to change longstanding pedagogical practices. Institutions could do a lot of good by encouraging faculty reflection and supporting creative reorganization of current courses.
The LSSSE Report tells us that in many ways, law schools are failing to provide the inclusive educational spaces that they, I believe in good faith, want to offer and that students of various backgrounds actively desire. Ultimately, the teaching tools are available, the moment is ripe, and the only outstanding question is whether legal educators will make the changes necessary so that the next LSSSE survey offers more optimistic findings.