Abstract

Excerpted From: LeRoy Pernell, Why I Will Not Stop Teaching Law Students to Think Critically about Race: The Attack on Teaching about the Role of Race in Law, 25 Rutgers Race & the Law Review 1 (2024) (194 Footnotes) (Full Document)

In 2022, the Florida Legislature passed the “Individual Freedom Act” (“IFA” or “HB 7”). HB 7 prohibits “training or instruction that espouses, promotes, advances, inculcates, or compels ... student[s] or employee[s] to believe” eight specified concepts. These eight concepts were as follows:

1. Members of one race, color, national origin, or sex are morally superior to members of another race, color, national origin, or sex.

2. A person, by virtue of his or her race, color, national origin, or sex is inherently racist, sexist, or oppressive, whether consciously or unconsciously.

3. A person's moral character or status as either privileged or oppressed is necessarily determined by his or her race, color, national origin, or sex.

4. Members of one race, color, national origin, or sex cannot and should not attempt to treat others without respect to race, color, national origin, or sex.

5. A person, by virtue of his or her race, color, national origin, or sex bears responsibility for, or should be discriminated against or receive adverse treatment because of, actions committed in the past by other members of the same race, color, national origin, or sex.

6. A person, by virtue of his or her race, color, national origin, or sex should be discriminated against or receive adverse treatment to achieve diversity, equity, or inclusion.

7. A person, by virtue of his or her race, color, sex, or national origin, bears personal responsibility for and must feel guilt, anguish, or other forms of psychological distress because of actions, in which the person played no part, committed in the past by other members of the same race, color, national origin, or sex.

8. Such virtues as merit, excellence, hard work, fairness, neutrality, objectivity, and racial colorblindness are racist or sexist, or were created by members of a particular race, color, national origin, or sex to oppress members of another race, color, national origin, or sex.

Florida was not the first state to pass laws seeking to censor what is taught about race, the role that race has played in inter alia our legal system and the possible ways of combating that influence. At least 14 state legislatures have passed similar laws.

Many, if not most, of these legislative enactments, focused on several common themes: shielding anyone not currently “guilty” of individual racism from any suggestion that responsibility for current institutional racism or consequences of past racism should be borne by them, and rejection of affirmative action or the suggestion that affirmative action may be a justifiable and desired remedy. Indeed, as in the Florida legislation, it is vaguely forbidden to make anyone feel “guilt, anguish or distress” because of the history of racism. As applied to state universities and state law schools in particular, anti-CRT laws represent not only a forced denial and a “thought gag” on both teaching and scholarship but also a forced adoption of the state-approved interpretation and doctrine on the roles and remedies for racial inequities. A specific target of this class of legislation has been Critical Race Theory.

As someone who has been involved in legal education teaching for over 40 years and as someone who was drawn to legal education as an alternative to a career more directly devoted to litigation concerning racial justice, so that others might be encouraged to explore critically both what race has meant to our legal system and how we might collectively counter its negative influence, the “Stop W.O.K.E Act” presents a real and present danger. Thus, in August of 2022, I agreed to be the lead named plaintiff in Pernell v. Fla. Bd. of Governors of the State Univ. Sys, No. 4:22cv304 (D. Fla. filed Aug. 18, 2022), with representation by the NAACP Legal Defense Fund, The American Civil Liberties Union, and the law firm Ballard Spahr. On November 17, 2022, Judge Mark Walker of the United States District Court for the Northern District of Florida, issued a preliminary injunction barring the Florida Board of Governors of the State University System, from the enforcement of this act. It is the first decision of its kind to halt suppression of thought surrounding Critical Race Theory. As of the date of this writing, the case is on appeal to the United States Court of Appeals for the Eleventh Circuit.

This article is not about that case or its specifics as it applies to me. Rather, this article will explore the national effort to legislatively suppress Critical Race Theory and the teaching of the significance of race as a pedagogical tool and to demonize those who support and promote the importance of such teaching in our legal education system - particularly at this time. This article will explore the Critical Race Theory (CRT) connection to the educational development of the African American community as well as its role in providing both a voice for a community often historically voiceless and a vital cog in bringing about transformative change. This article will also look behind the egalitarian façade used to “justify” these laws through false fears and somewhat disingenuous declarations of a “color-blind”, post-racial society.

[. . .]

“When you see something that is not right, not fair, not just, you have to speak up. You have to say something; you have to do something.” -Rep. John Lewis

Law faculty, like faculty in other disciplines, are often engaged in esoteric and sometimes abstract contemplations of theory and doctrine. But just as often, if not more often, law faculty serves as the catalyst for transforming students into advocates, and the gifted into agents of transformative change. Law faculty have a special role and voice. Like DuBois' “twoness”, the law professor of color must teach from her or his experience, both as a legal scholar and as one who must often think deeply about her or his position vis-à-vis her or his racial community experience. The unique voice of this double consciousness is under attack and in danger of suppression by anti-CRT laws. This attack is not accidental, but a calculated attempt to shift the focus of public awareness away from the unresolved, negative consequences of racial disparity increasingly evidenced by grim statistics of a disparate economic, political, and legal system as well as accurate real-time media capturing vivid imagery of racial injustice.

Declaring an end to racial injustice by forbidding its discussion is doomed to failure and has been shown throughout history to be ill-conceived. So too does villainizing the victim, or those who speak out on the victim's behalf, not move any system, legal or otherwise, closer to a just society.

Yet, this is exactly what the anti-CRT laws attempt to do. Its version of racial suppression through intimidation may result in in many important voices being silenced by fear and non-institutional support. But I do not, in good faith, believe that I can agree to be one of the silenced.

In the pantheon of heroes, many have inspired and are rightfully held up for their articulate protestation of injustice. Such heroes are well deserving of the accolades that we now recognize.

For me, regarding speaking out on and teaching about racial justice, I have a particular hero that may not be perhaps recognized as much as Dr. Martin Luther King, Malcolm X, or even the late John Lewis.

On a hot 1955 summer day in Sumner, Mississippi, Mose Wright stood up in a hostile courtroom and said, “Dar He” (there he is). There, the white men who took my nephew.

His nephew was Emmit Till. Mose Wright had to flee for his life after that testimony. But this Black farmer, with no higher education, stood and spoke about what he saw that was not right.

If Mose Wright could declare “Dar He”, maybe I can do the same about race in our legal system, regardless of the threatened consequences. How can I stop teaching law students to think critically about race?

Professor of Law, Florida Agricultural and Mechanical University, Professor Emeritus, Northern Illinois University College of Law, B.A. Franklin and Marshall College, 1971, J.D. The Ohio State University College of Law, 1974.