December 2, 2015

raised hands

By SJP Friend Annaleigh Curtis:

One of the best things about law school is that it brings together people with diverse backgrounds and experiences. Something that makes me somewhat unique among my peers is that I spent five years before beginning law school teaching college courses, first teaching and coaching debate, then while I was earning my PhD in Philosophy. I thus come to the law and legal education with a particularly acute sense of what academic freedom is, should be, and is not. Academic freedom is absolutely vital to the educational system, particularly in college and graduate and professional schools. It allows professors to speak, teach, and write on controversial ideas. This freedom encourages innovation and knowledge-production.

However, not all appeals to academic freedom serve these worthy goals. As students on this campus, and on campuses around the world, demand that their education confront and address race, class, gender, and other social justice issues, they will no doubt be met with administrators and professors who insist that such changes can be suggested or encouraged, but not mandated. To mandate them would intrude impermissibly on academic freedom. I want to suggest that this response misunderstands the point and nature of both students’ demands and the law itself.

Law school curriculum, or any other sort of curriculum, does not come to the world fully formed. Law school courses do not, in Plato’s terms, carve nature at its joints. For one thing, law is not natural. It is made by humans, and it reflects those human origins. The current way of dividing up 1L classes, for example, into contracts, torts, and property is artificial. The private rights implicated in contract are often intermingled with those implicated in tort. Beyond that, it is a choice, which is to say again that it is not natural or given, to teach those courses in the first year instead of other courses, like environmental law, civil rights law, or anything else.

The choice of how to divide up courses, and which of those courses to teach, is necessarily political. These choices reflect judgments about what is core, central, and important—and what is peripheral, add-on, or elective. This is not to say that there are not reasons to divide up legal education as it is currently divided, but that the division itself requires justification in the face of criticism. Indeed, many law schools in the U.S. embarked on curricular reform recently. At HLS, we have seen the addition of the problem solving workshop, the removal of constitutional law, and the addition of legislation and regulation and international law to the 1L curriculum. These changes were made, presumably, to reflect changing views on what is and is not central to the law and its practice. Law schools rush to add courses that add to the knowledge large corporate firms want graduates to have when they begin work, yet balk at the idea of requiring that students confront—and professors teach—the extent to which race shapes the law.

Students’ demands to make race central to legal education do not come from left field. Race is not a non sequitur in the broader context of law. Race is, instead, quite central to the development of law. The constitution was written against the backdrop of slavery and enshrined it into the structure of our most basic law. Today the laws—and applications thereof—surrounding police violence, housing, the environment, loans, and so much more continue to implicate race in very fundamental ways. The story of race in law is the Reconstruction, the Civil Rights Act, and mass incarceration. But it is also torts, contracts, corporations, legislation and regulation, and quite literally any other course currently taught in any U.S. law school.

Professors who fail to teach the racial implications or foundations of the subjects they teach, then, are failing to grasp at the core of the law. They are neither experts nor scholars if they are unwilling to grapple with, uncover, and explain these implications in their scholarship and classrooms. We would not call it academic freedom if a professor tasked with teaching administrative law instead taught molecular biology. We might provide her a chance to justify this choice, but absent a justification she would be acting in bad faith. If law professors who teach criminal law—the 1L course that is perhaps most steeped in race in this country—refuse to confront race in their classes, they are as far from their field as molecular biology is from administrative law. If professors are unwilling to address race in the classroom, we are happy to have new professors who will.

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