Abstract

Excerpted From: Elayne E. Greenberg, High Anxiety: Racism, the Law, and Legal Education, 29 Washington and Lee Journal of Civil Rights and Social Justice 129 (Winter, 2023) (266 Footnotes) (Full Document)

Racism. As the public outrage for a more truthful accounting of our country's racist history becomes more politicized and incendiary, law schools, too, are being drawn into the fray for perpetuating this false narrative of “justice for all.” By the fall of 2020, many law schools were finally hearing the clarion call to revise their law school curricula to include more truthful narratives about the law's racist foundation and to encourage antiracist actions. In this anti-racist environment, the term “practice-competent” was expanded to include those skills students need to effectively manage the endemic racism that they and their clients are likely to confront in legal practice. It was becoming a moral and economic imperative for law schools to enroll a diverse student body and to showcase diverse faculty. To publicize this anti-racist pivot, many law schools began spotlighting those individual initiatives that reinforced their anti-racist stance: book clubs educating about our racist history, alumni and student-initiated programs that candidly confronted white people's complicit perpetuation of racism, newly-developed courses about race, and diversity and anti-racist specialists who guest-lectured to faculty about the importance of diversity and inclusion.

As part of this new-found enlightenment, deans were also urging individual law professors to rethink the role racism played as part of their course teachings and to revise their course curriculum to support this enlightened racial perspective. For some law professors like this author, this was just a continuation of what they have always done. For others, it was a welcome opportunity to provide a more honest and balanced representation of the law. Still, others were open to the idea, but unsure how to proceed. And, a very small minority felt education about racism had no place in their law school course.

Amidst this call for change, law school administrators and faculty became stoked with anxiety when they read about those faculty and administrators who were cancelled because their actions or teachings were deemed racist. What if they got it wrong? What if they were cancelled? Expectedly, this fear of cancelling added a chilling effect on those professors and administrators who otherwise would be receptive to providing a more honest representation of race in their courses.

In this paper, cancelling refers to the public shaming and professional degradation of professors who are deemed “racist,” because one or more of their teaching attempts about racism was interpreted to be racist by one or more students despite the fact these professors have demonstrated their commitment to anti-racism. From a student's perspective, cancelling provides an empowering voice to draw attention to their long-denied cries about racism's prevalence in legal education. Cancelling circumvents all due process protections that are fundamental to our legal system, and instead weaponizes social media to act as the court of public opinion. Cancelling, like its counterparts blacklisting, threatening, attacking, and censoring, all publicly disparage those whose teachings have been stamped racist without first having a meaningful conversation and understanding about the incident in question. The fear of cancelling has a chilling effect on those professors who otherwise believe that legal education should expose law students to the marketplace of ideas about whether the law has perpetuated racism so that students are better prepared to address the realities of racism in the law. How did these public attacks rob the professors', law schools, faculties, and students of an opportunity to learn more about individuals' different reactions to racism, and how to educate more effectively about racism?

For law schools and their individual professors, the stakes are high to get it right. Get it wrong, and law schools will suffer immediate consequences--prospective law students will migrate to those schools with greater educational integrity about racism in the law, and the school's ranking will tumble. Get it wrong, and law schools will perpetuate the status quo replete with false narratives about racism and the law and continue to graduate students who are ill-prepared to manage the systemic racism that they and their clients will experience. Get it wrong, and individual professors risk getting cancelled.

As a dispute resolution professional, I offer a different frame to understand cancelling and discuss racism. From this perspective, I look at cancelling as a symptom that a law school doesn't have adequate processes in place to address students' concerns about a professor's perceived mishandling of race, nor do they have adequate processes in place to support professors to learn from their mistakes. From a dispute system framework perspective, cancelling is a lost opportunity for all stakeholders involved: students, professors. and administrators.

How might law schools be sure to get it right? This paper focuses on the human stress that members of the law school community experience when they are confronting how to educate about racism. Central to this discussion is an acknowledgment that while all members of the law school community might experience stress surrounding racism education, each member of the community might experience racial stress differently based on their individual physiological wiring, the race they identify with, and their life experiences surrounding racism.

Building on the interdisciplinary research about racism, racial stressors, trauma pedagogy, and the principles of restorative justice, this paper provides a dispute process framework for law school administrators, faculty and students to help constructively manage the inherent stress and challenges of integrating racism education into legal education. The lessons learned will have broad applicability to the entire legal curriculum. This discussion shifts the conversation about teaching racism from an arms-length intellectual discussion to a more honest dialogue about the individual stressors that are evoked when we talk about racism. The challenge of this difficult and more honest discussion is to give a voice to the different stressors about racism evoked in all members of our law school community, not just the anti-racist supporters, without diminishing the voices of racism's victims. The goal is to respect students' and professors' individual wiring and perspectives about race and to make students effective advocates when confronting the inherent racism in legal practice.

This discussion progresses in four parts and follows the recommended progression for designing a conflict management system. The initial steps when designing any conflict management system include understanding the problem and identifying the stakeholders affected by the problem. Section One provides a developmental overview of how, beginning in childhood, individuals physiologically react to and learn to cope with the stress of racism. Herein lies the paradox about racial stressors. Some learn to respond to the anxiety of racism by becoming incentivized to become agents of change who help develop a racist-frame world. Others, however, cope with the stress of racism with anger or avoidance.

Section Two continues the discussion in the law school context. This section highlights the differentiated reactions of individual professors, students, and administrators to racial stressors in law school. Not only does this discussion highlight the pedagogical opportunities to teach racism in clinical and skills courses, it also signals the dangers of ignoring racism's presence in these experiential learning courses. Section Three culls from the discussion about racial anxiety in the first two sections and suggests a systemic design that law school administrators and individual professors might consider to teach about racism and effectively manage any concomitant racial stress. Based on restorative principles and extrapolating from the interdisciplinary research on how stress could become a positive stimulus, this section focuses on how law schools can create a supportive and psychologically safe learning culture that incentivizes understanding, not shaming, about racism. Law school administrators and committed faculty members are invited to consider how to harness the power of racial stressors and incentivize students to become change agents. In this section, I prescribe a menu of processes and accountability measures for law schools to consider when integrating racism education in their law school. Finally, Section Four concludes by emphasizing that a law school's decision to integrate racism education into their curriculum is both an organizational decision and a professor's personal decision. It communicates the school's commitment to including a more truthful narrative about the role of racism in the law and preparing their graduates to manage racism in legal practice. It also invites law professors to consider how they might educate about racial stressors in their classes.

[. . .]

“I have learned over the years that when one's mind is made up, this diminishes fear.” When I shared the drafts of this paper with multiple colleagues, their reactions were variations on a theme: “How brave.” One colleague even asked if I intended to be forced into premature retirement after the paper was published, because it would certainly signal the death knell of my career. And that, readers, is the point of this paper. How might law schools constructively manage the high anxiety and differentiated stressors of their community members when racism education is discussed?

On a personal level, it requires all of us to self-reflect about how, over the course of our lifetime, our values, our religious beliefs, our human connections, and our life choices have been contaminated by racism and have made us racist. Continuing that personal self-reflection, do we have the courage to dismantle our racist beliefs and engage in meaningful anti-racist activism?

This paper presents a dispute system design framework for law schools to consider to help diminish the fears surrounding racism education. It requires an understanding of how the subject of racism evokes differentiated stress in the law school's students, faculty, and administration. It requires an acknowledgement that racial stress, if ignored or not properly managed, can have a chilling effect and potentially derail the law school's efforts to include racism education in the law school's curriculum. It provides a supportive culture and skills to constructively manage that stress and learn from the inevitable offenses and miscommunications about racism.

The time for our law schools to address racism, the undergirding of our legal system, is past due. Now that some law school communities are contemplating how to provide a more honest education about the role of racism in the law, they are also compelled to address the differentiated stressors that are triggered by discussions of racism. This is a welcome opportunity to get past the fears and expand our understanding about racism. If done thoughtfully, law schools can help educate aspiring lawyers to harness the power of racial stress and become effective change agents to address racism in the law.

This call for responsible social action cannot be ignored. Even though this discussion takes place in the law school context, we are also living this discussion each day, everyday, as our country continues to struggle with its racist history. A looming threat is whether the racism that is polarizing our country will eventually be the deathknell of our democracy. And, we may all have different predictions about the perniciousness of racism and the fate of our democracy.

This paper invites law schools and legal educators to walk through the fire, optimistically believing that we all have the courage to constructively address racism, if each one of us can learn how to manage the anxiety triggered by racial stressors in ourselves and in our students.

Professor Elayne E. Greenberg is a Professor of Legal Practice and Faculty Chair of the Hugh L. Carey Center for Dispute Resolution at St. John's Law School.