Avoiding Race

-- By SuzanAbebe - 17 Mar 2015

What Happens to a Dream Deferred?

A significant part of what led me to law school was the opportunity to learn about the complexities of the legal system, good and bad. Moreover, with my growing education I could then analyze and pursue those legal issues and injustices that I believe I would be able to effectively tackle. So much of the enthusiasm that I entered with has dissipated. I am concerned that we are not learning about lawyering i.e. “how to effect social change with words.” But even before the lack of lawyering, I am concerned because too many professors ignore how racial issues permeate our legal system. I do not think you can get to “effecting social change with words” if you do not teach the social ills. If law professors continue to disregard the role of race and the law in their curriculum, then students will enter the legal profession without full comprehension of the system.

…Does it Stink Like Rotten Meat?

There are many instances in the law where race played a significant, important or even subtle role in a legal outcome. Although in my first year this most likely went unaddressed in my courses unless a student took initiative and brought it up. For example, I will use the Central Park 5 case. This was a criminal case where five young men, four black, one Hispanic, ranging from 14 to 16 years old at the time of their arrests were wrongly convicted of raping a 28-year-old investment banker who was jogging in Central Park. The victim was white. The 5 had expressed during the trial that authorities coerced them into making incriminating statements, but the judge nonetheless ruled that their statements were admissible, and as a result, the young men were convicted in 1990. Their time in prison ranged from six to 13 years before the actual rapist was revealed through DNA evidence in 2002. The Central Park 5's convictions were vacated in 2002. This example is not an isolated incident where the justice system failed these young men in particular. Instead, this example is a common narrative that shows a fundamental problem with the criminal justice system and communities of color.

I understand that cases like this may not be able to be tied into every first year course and I don’t expect them to, but at the very least our criminal law and procedure related courses should fully tackle these issues. There is disproportionate contact between communities of color and law enforcement, coercive tactics to get confessions of those who do not have proper counsel, disproportionate convictions, sentencing rates and jury bias regarding people of color. I think it is the duty of our law professors to include these disparities in our classroom discussions when relevant. In order to educate students on when the law works and when the law fails.

Maybe it Just Sags like a Heavy Load

I considered the argument that law school classes are about learning the doctrine and as a result the day-to-day practical issues must take a back seat. Second, that an upper level course like Critical Race Theory is offered to those that are interested. But, I realized when taking Property first semester that race even gets removed from the dialogue when learning the doctrine. In Dred Scott v. Sanford, Justice Taney stated, “the plaintiff was a Negro slave, the lawful property of the defendant, and, as such, the defendant gently laid his hands upon him, and thereby had only restrained him, as the defendant had a right to do” ; Good law or bad law, I think a property course should have addressed that African-Americans were once considered property in this very country.

Or conversely, that in property law many legal outcomes are solely the result of the skin color of parties. Another example is racial covenants and easements. We learned that they merely existed, but had no discussion about how access to property was restricted to people of color through these restrictive covenants and easements. We also did not learn that eventually these covenants and easements that were violative of the 5th and 14th amendment were unenforceable in U.S. courts as a result of the decision in Shelley v. Kraemer. I know that this topic is one topic in a very large course, and I don’t suggest that it needs several lectures worth of discussion, but it should be accorded more time than was given to us. Further, it is not a fix to say that there is a critical race theory upper level class, because those courses are self-selecting. Racial issues in the law need to be addressed in first year mandatory courses, because they permeate the rulings of those first year courses like civil procedure, contracts, con law and property. We should not have to create a separate space to talk about race. If it is a factor in what we are learning, then professors should take the burden off of the minority students, who feel inept if they do not speak up to fill the void.

Or does it explode?

As students of the law, we should be learning about its implicit and explicit biases. As future practitioners, we will become the prosecutors, public defenders, judges, clerks, transactional lawyers, etc. To spend 3 years avoiding the obvious issues is not good teaching. It will result in the perpetuation of this chain of ignorance and disparities regarding minorities and the law.

This is the legal field and we cannot afford to disassociate and split legal issues from racism if it is there. Especially not if it is in hopes of avoiding uncomfortable conversations. We are in the industry of service and we deal with people. In order to understand human beings you have to relate to them. Part of doing this effectively is learning their history. The history sets the foundation for understanding the struggles faced by their culture and communities. I often question whether what appears to be professors’ indifferences is actually a consequence of them splitting. Standing back to back, so they do not join the conflicts that they are trying to avoid. So instead they approach doctrines in the same manner Supreme Court justices perform constitutional avoidance, they do this act of racial avoidance, for a preservation of self, conflicts and maybe white guilt.