Month: March 2016

Fair Punishment Project

FPPLogo

Letter from the Charles Hamilton Houston Institute and the Criminal Justice Institute, about an exciting and important new project at Harvard Law School:

Dear Friends and Colleagues:

We’d like to introduce the Fair Punishment Project (FPP), a brand new initiative brought to you by Harvard Law School’s Charles Hamilton Houston Institute for Race & Justice and its Criminal Justice Institute.

The Fair Punishment Project uses legal research and educational initiatives to ensure that the U.S. justice system is fair and accountable. The Project works to highlight the gross injustices resulting from prosecutorial misconduct, ineffective defense lawyers, and racial bias and exclusion. We are dedicated to illuminating the laws that result in excessive punishment, especially the death penalty and juvenile life without parole.

We’ll be releasing our first report in the next day or two, so keep an eye out–you don’t want to miss it.

Future reports will highlight the troubling attributes that outlier death penalty counties have in common, examine America’s top 10 deadliest prosecutors, and look deeply into counties that are plagued by prosecutorial misconduct.

The Charles Hamilton Houston Institute was launched in 2005 by Harvard Law School professor Charles J. Ogletree Jr, and is led by David Harris and Johanna Wald. The Institute serves as a critical bridge between scholarship, law, policy, and practice to solve the challenges of a multi-racial society.

The Criminal Justice Institute, also founded by Charles Ogletree, trains Harvard Law School students who will be the next generation of ethical, effective, and passionate defense lawyers. Led by Ronald S. Sullivan Jr., the Institute conducts research on the criminal and juvenile justice systems in order to achieve local and national reform.

The Fair Punishment Project will strive to be a valuable resource for anyone and everyone who is interested in bringing about a fair and equitable justice system. We hope you will visit our website at www.fairpunishment.org to learn more about our work, and that you will join us as we address one of the most critical issues of our time.

Thank you,

David J. Harris, Charles Hamilton Houston Institute
Charles J. Ogletree, Charles Hamilton Houston Institute
Ron Sullivan, Criminal Justice Institute

Real Talk 4: Ariel Eckblad

ariel-headshot
By Ariel Eckblad

There have been at least 13 iterations of this piece. Last December, the first draft began—

In November, someone placed strips of black tape over the portraits of tenured black professors at Harvard Law. Today, as I read “Between the World and Me,” Ta-Nehisi Coates told me, “hate gives identity.”[1] I was, at first, unsure whether I agreed with his assertion in its totality. I think my initial reticence to accept this statement stemmed from the absolutism embedded in its brevity. Hate may indeed give identity. I have also watched as love, affiliation, and the irreplaceable sense of worth that stems from authentic human connection provides a similar sense of belonging. And still, beyond the inquiry of veracity, is the question of applicability.

As I returned to edit, initially hoping that a cursory glance would be sufficient, I found myself paralyzed. Each “edit” felt pitifully sterile, laced with an almost comedic anachronism. How does one wax eloquent about love when presidential candidates are being rewarded for spewing vitriol? How can I write about affiliation when my peers are sleeping in Belinda Hall because during the day the world tells them that even at HLS they don’t quite fit? What is “authentic human connection” when the prevailing ethos often seems to be one of exclusion, wall-building, and atomization? And so, I made trivial alterations—replacing and misplacing commas—stalling so I did not have to publish the piece.

After my 12th attempt at editing, there was one bit that continued to menace—

Marking the faces of black professors is a hateful act. I wonder could such an act be interpreted as perverse attempt to ground one’s identity? More specifically, if identity is defined as the story we tell ourselves about ourselves, when this story feels threatened is hate an attempt to salvage it? And if yes, what is the role of facilitated dialogue in ensuring that such acts do not happen again? If the undergirding question is one of identity, what then is the answer?

I still cringe. Why? Simply, I bristle because I do not know the answer. The tape used to cover the faces of black professors had, earlier that day, been used to hang signage explaining why the “Royall Must Fall.”[2] The Royall Must Fall movement, which seeks to change the HLS crest—a crest that once belonged to a family of slaveholders—is at least in part undergirded by questions of identity. Students are questioning what it means to claim/attend/be part of an institution that brands itself with a symbol that once served as tacit legitimization of violent oppression. Are the reactions to this movement—ranging from denial to denunciation—also driven by identity or a fear that one’s identity is somehow being threatened? Sociopolitical shifts in our school, our communities, our country, and our world force us to confront the story we tell ourselves about ourselves. In this shadow of such shifts, are we not all seeking to determine if/how/where we belong? Perhaps. And still, the question remains so what?

In the 7th version of this piece, I sought to answer this “so what?” and find some sort of silver lining. I asserted—

And still my impulse, given my lens as a student of alternative dispute resolution (ADR), is to assess whether ADR can serve as a mechanism of reconciliation. The question of identity provides a bit of hope. Maybe, it does not have to be like this? If many (some? a few? a handful?) of hateful acts stem from a desire to assert/protect/guard/shield the story we tell ourselves about ourselves then ADR can be used to provide an alternative story…maybe the power of dialogue stems from its ability to establish a “shared identity between two aggrieved or separated parties.”[3] Possibly dialogue can be used to foster love, compassion, and empathy. Perhaps, this can also “give identity.”

This is the 13th version of this piece and I am still unsure how to conclude. I want so desperately to believe in the power of dialogue to bridge difference, rebuild identity, and heal broken communities. My identity as a student and teacher of ADR hinges on this conviction. And still, I wonder if there are moments when people seek so desperately to belong that they will exclude in order to do so. I question whether, when this occurs, dialogue can ever serve to rebuild or reunite. Maybe the reality is that both of these are true, hate or love can ground our identities. Perhaps the onus is on us to consistently choose the latter.

 

[1] Coates, Ta-Nehisi. Between the World and Me. New York: Spiegel & Grau, 2015. Print.

[2] The Royal Must Fall movement is a student movement that believes that the HLS “crest is a glorification of and a memorial to one of the largest and most brutal slave owners in Massachusetts. But Isaac Royall, Jr.” and therefore, the HLS crest must be altered. See: Johnson, Antuan, Alexander Clayborne, and Sean Cuddihy. “Royall Must Fall | Opinion | The Harvard Crimson.” Royall Must Fall | Opinion | The Harvard Crimson. Web. 14 Jan. 2016.

[3] Kim, Sebastian C. H., and Pauline Kollontai. Peace and Reconciliation In Search of Shared Identity. Farnham: Ashgate, 2008. Print.

Tentative Schedule Our 2016 Conference

2016 Systemic Justice Conference:
Access, Inclusion, Protest, Education

conference-logo (1)More info at https://systemicjusticeconference.wordpress.com/

Friday, April 8, 2016 – Access

  • 12:00 – 12:15 PM: Lunch pickup & Introductions (WCC – 2012)
  • 12:20 – 1:40 PM: Access to Justice Presentation (WCC – 2012)
  • 1:40 – 2:40 PM: Justice Showcase #1 (WCC – 2012)
  • 2:40 – 2:55 PM: Coffee/Tea Break (WCC – 2012)
  • 3:00 – 3:50 PM: Showcase Presentations (WCC – 2012)
  • 4:00 – 5:20 PM: Access to Food Presentation (WCC – 2012)
  • 5:20 – 5:30 PM: Friday Wrap-Up (WCC – 2012)

Saturday, April 9, 2016 – Criminal Justice & Campus Protests

  • 9:30 – 9:45 AM: Continental Breakfast (Pound Hall)
  • 9:45 – 10:00 AM: Morning Introductions (Pound Hall)
  • 10:00 AM – 11:00 AM: KEYNOTE: Dean Strang (Pound Hall)
  • 11:10 AM – 12:30 PM: Right to Counsel Presentation (Pound Hall)
  • 12:30 – 12:45 PM: Lunch Pickup (Pound Hall)
  • 12:45 – 1:30 PM: Systemic Lawyering Panel (Pound Hall)
  • 2:00 – 3:00 PM: Justice Showcase #2 (Pound Hall)
  • 3:00 – 3:15 PM: Coffee/Tea Break (Pound Hall)
  • 3:30 – 4:50 PM: Campus Protests/Movement Panel (Pound Hall)
  • 5:00 – 6:00 PM: Student Narratives (Pound Hall)

Sunday, April 10, 2016 – Legal Education

  • 10:30 – 11:00 AM: Brunch (Pound Hall)
  • 11:00 AM – 12:20 PM: Legal Education Presentation #1 (Pound Hall)
  • 12:30 – 1:00 PM: Legal Education Presentation #2 (Pound Hall)
  • 1:00 – 1:15 PM: Pick up Lunch (Pound Hall)
  • 1:20 – 2:00 PM: Legal Pedagogy 2.0 Panel (Pound Hall)
  • 2:00 – 2:40 PM: Systemic Curriculum Panel (Pound Hall)
  • 2:50 – 3:20 PM: Breakout Session (w/coffee/tea) (Pound Hall)
  • 3:20 – 4:00 PM: Movement Building & Wrap-up (Pound Hall)

May the Force be With You

carson
By Carson Wheet

I love negotiation theory. In fact, I hope to make a long career out of teaching others how to negotiate effectively, but every time someone asks me about my future profession, their eyes glaze over as I describe how one can use empathy and self-awareness to get what he or she wants. I have discovered that, to many people, effective negotiation is little more than a combination of deception, strong-arming, and mind control:

It’s tricking some sucker into paying twice what a car is worth.

It’s using leverage to fleece a business partner for every penny she’s got.

It’s convincing a group of Stormtroopers that “These are not the droids you’re looking for.”

Although I realize that the last situation may seem out of place, the recent Star Wars craze has compelled me to consider parallels between negotiation and the Star Wars universe. In that pursuit, I have discovered that, much like “The Force,” negotiation tactics can be used for good, but they can also have a “Dark Side.”

As I mentioned earlier, two underlying principles of effective negotiation are empathy and self-awareness. When one is not only empathetic toward the other side’s position, but also self-aware of his or her own interests, goals, and defaults, it is much easier to obtain a good result. This is because one can better create value working with, rather than against, a counterpart, and it is much easier to get what you want when you fully understand what you want. Nevertheless, being empathetic to a counterpart is often seen as “soft” or “weak.” People fear that working with a negotiation counterpart opens the door for that counterpart to take advantage of them. As Master Yoda said, though, “Fear is the path to the dark side.”

Fear is at least one major reason why people use difficult tactics. People fear being taken advantage of or “losing” a negotiation so they will often deceive, strong-arm, or trick a counterpart before the same can be done to them. There is a generally held notion that nice people get taken advantage of, so in order to negotiate effectively, you have to be “tough.” While aggressive or deceitful tactics can be effective negotiation techniques in the short term, they often have a deleterious effect on future negotiations. To demonstrate this point, consider how you would respond if someone were aggressive or deceitful towards you in a negotiation. Seriously…think about it…

I’ll wait…

Got it?

Good.

I am willing to bet that your reaction would be either to swear a solemn vow to never deal with that person again or to fight fire with fire.[1] Neither outcome is conducive to a long-term relationship, but I would imagine that your reaction would be exponentially more visceral if the negotiation had touched on a central piece of your identity such as gender, race, nationality, or religion. Emotionally charged negotiations require emotional intelligence, which is sadly neglected in most law school settings. Fortunately, this past semester I was able to participate in a pilot program called Real Talk, which was designed to facilitate constructive conversations about emotionally sensitive subjects like race, gender, and identity.

My role in Real Talk was to facilitate dialogue about sensitive issues among six of my classmates from diverse backgrounds. Despite the fact that this blog began with a discussion about negotiations, I want to be clear that there is a huge difference between negotiation and facilitation. Whereas negotiation is about getting what you want and convincing another party to agree to something, facilitation is about opening space for others to express themselves and hear perspectives that are different from their own. In Real Talk, my goal as a facilitator was to foster safe and constructive dialogue about issues that affect our campus and nation as a whole such as racism, sexism, and white supremacy. Although Real Talk sessions were not negotiations, many of the tools and emotional intelligence that I had developed to manage emotional negotiations turned out to be extremely helpful in facilitating these discussions. In my small group, I utilized effective negotiation techniques such as asking open-ended questions, paraphrasing responses, and acknowledging emotions in order to foster deep and meaningful conversations.

Midway through the semester, I was very happy with the conversations that were taking place in my Real Talk group and I was personally satisfied with how I had begun confronting difficult conversations in my own life. I had finally stopped tip-toeing around controversial issues and, to be honest, I was pretty proud of myself—that is, I was proud of myself until one day in late November when I tried talking about racism with a good friend of mine. In response to my invitation to talk, my friend said, “You and me can talk [un]til we’re blue in the face, but it won’t change ****.” As a result of this exchange, I began having doubts about the significance of Real Talk and difficult conversations as a whole. In the face of so many difficult issues, maybe conversation was pointless? Maybe Dark Side negotiation tactics were the answer after all? Maybe change is only possible when you force people to do what you want? As I look back on the semester now though, you might say that I have “A New Hope” for the role of conversation in helping people get to a place where change becomes possible.

Nationally, there is reason to believe that the recent media attention given to race issues in America has shed light on institutional oppression and changed the minds of many who believed that racism was a thing of the past. A recent study reveals that in the past eighteen months, a significant percentage of Americans went from believing that the country had achieved equality to believing that changes need to be made to the status quo. Anecdotally, I have personally witnessed the transformation of individuals from indifferent bystanders to zealous advocates for racial justice. Their transformation was not the result of deception, strong-arming, or Jedi mind tricks. Their transformation was facilitated by conversations that increased empathy, understanding, and humanity and thereby opened people’s minds to the possibility of something else. In other words, talking can “change ****.” It is not always fast and it is not the sexiest agent of change, but it is available to all of us and costs nothing to try. If you do try, sincerely and consistently, you may find, as I have, that conversations about sensitive issues can make someone question truths that he or she never doubted until they heard the story told from another person’s perspective.

For all my Star Wars references in this blog, I actually disagree with the premise of someone being an agent entirely of the dark side or the light side. As Darth Vader showed us in the end, we are all full of nuances and contradictions. Good and evil. We are capable of enriching the lives of others and depressing those who stand in the way of our desires. The moments that define who we are and what we stand for are ever-present. It falls to each one of us to determine how we want to proceed in those moments. Do we want to live in fear and take advantage of people before they can do the same to us? Or do we want to put down our light sabers for a moment—to actively seek and consider the perspectives of people who think differently than us? Conversations can change people, but they can’t start themselves. It falls on each of us to incorporate some version of Real Talk into our daily lives if we are to overcome all the fear and misunderstandings that exist among strangers.

Help me, dearest reader. You’re my only hope!

[1] See Roger Fisher, William Ury & Bruce Patton, Getting to Yes: Negotiating Agreement without Giving In 131 (3d ed. 2011).

“They Came in Like Rambo”

SearchWarrant

From Today’s Washington Posta major investigation about the systemic trauma inflicted on the black community by the militarized and unconstitutional search warrant practices of the DC police.  (The article highlights the important work being done by by Systemic Justice Project Board of Advisors member Alec Karakatsanis.)  Here’s an excerpt:

Sallie Taylor was sitting in her apartment in Northeast Washington one evening in January 2015 watching “Bible Talk” when her clock fell off the wall and broke. She turned and looked up. Nine D.C. police officers smashed through her door, a shotgun was pointed at her face and she was ordered to the floor.

“They came in like Rambo,” said Taylor, a soft-spoken 63-year-old grandmother who was dressed in a white nightgown and said she has never had even a speeding ticket.

The heavily armed squad thought they were searching the residence of a woman arrested two miles away the previous night for carrying a half-ounce vial of PCP.

Taylor, who did not know the woman, was terrified. Trembling, she told police that the woman did not live there. Officers spent 30 minutes searching the house anyway, going through her boxes and her underwear drawer. They found no drugs and left without making an arrest.

The search warrant executed at Taylor’s apartment cited no evidence of criminal activity there. Instead, in an affidavit to a judge, police argued that they should be able to search for drugs there based on their “training and experience” investigating the drug trade. They relied on an address they found in a court-records system for the woman arrested with PCP.

A Washington Post review of 2,000 warrants served by D.C. police between January 2013 and January 2015 found that 284 — about 14 percent — shared the characteristics of the one executed at Taylor’s apartment. In every case, after arresting someone on the street for possession of drugs or a weapon, police invoked their training and experience to justify a search of a residence without observing criminal activity there. The language of the warrants gave officers broad leeway to search for drugs and guns in areas saturated by them and to seize phones, computers and personal records.

In about 60 percent of the 284 cases, police executing the warrants found illegal items, ranging from drug paraphernalia to guns, The Post found. The amounts of drugs recovered were usually small, ranging from residue to marijuana cigarettes to rocks of cocaine. About 40 percent of the time — in 115 cases — police left empty-handed.

In a dozen instances, The Post found, officers acted on incorrect or outdated address information, subjecting such people as Taylor to the fright of their lives.

Almost all of the 284 raids occurred in black communities. In 276 warrants in which The Post could determine a suspect’s race, just three originated with arrests of white suspects. The remaining 99 percent involved black suspects. In the District, 94 percent of people arrested in 2013 for gun or drug charges were black, according to FBI crime data.

The 284 warrants reviewed by The Post differ from the usual pattern of police warrants. D.C. police have said at public hearings that the typical raid happens only after undercover officers or confidential informants have purchased drugs or guns from inside a home or police have conducted surveillance there.

The searches are occurring at a time when public attention is highly focused on interactions between police and blacks nationwide, with the rise of the Black Lives Matter movement and concern about the aftereffects of the drug war. In Maryland this month, lawmakers proposed legislation that would require police to reimburse residents for damage to their property when police execute a warrant and find nothing. In Philadelphia, police were criticized in October by the executive director of the city’s citizen review board for harsh treatment of residents during raids.

The Fourth Amendment to the U.S. Constitution protects citizens from “unreasonable searches,” generally requiring government agents to obtain a warrant from a judge by showing they have probable cause to think that they will find a specific item at a specific location. In recent decades, police have been given wide latitude by the courts to conduct searches aimed at removing drugs and guns from the streets.

Attorney Alec Karakatsanis, of the nonprofit group D.C.-based Equal Justice Under Law, said warrants that rely on training and experience as justification for a search subject the black community to abusive police intrusion based on flimsy investigative work. In the past two years, he has filed seven civil rights lawsuits in federal court challenging D.C. police’s practice of seeking search warrants based solely on an officer’s training and experience.

“They have turned any arrest anywhere in the city into an automatic search of a home, and that simply cannot be,” said Karakatsanis, who spent three years studying the issue, starting when he worked at the Public Defender Service for the District of Columbia. “It would work a fundamental change in the balance of power in our society between government agents and individual rights.”

***

Read the entire article here.

Read more about the work that Alec and Equal Justice Under Law are doing here.

In an e-mail, Alec emphasized that:

“the stakes are enormous.  The D.C. police have defended their right to enter any person’s home based solely on the person being related to or associating with any person that police have arrested, and the police have claimed in federal court that they have the right to strip search any person they find in any home, even innocent people and even children as young as six years old.”

Related posts here.

Open Letter to HLS Community

scales_of_justice

An Open Letter to the Harvard Law School Community from the staff of the Student Practice Organizations (SPOs):

We, the below named staff of the Harvard Prison Legal Assistance Project, Harvard Defenders, and the Tenant Advocacy Project, wish to state our support for the demands put out by Reclaim Harvard Law. The list of demands can be found here.

SPOs are unique at Harvard Law School in that we meet students early – many in the first weeks of 1L year – and we often get to spend the next three years with them and get to know them well. Many of our programs also welcome LLM students, and students who discover a passion for public interest work later in their law school careers. Since we don’t grade our students and they participate in our programs voluntarily, our relationships with them are different than they might be in a class or a graded clinic.

Like many other clinical programs at Harvard Law School, the SPOs focus on assisting disadvantaged clients. Our clients are often caught in the crosshairs of multiple oppressions. Systemic and individual racism is a concern for us for our students, our clients, and ourselves.

Our students, clients, and colleagues inspire us every day. We look forward to engaging with the rest of the Harvard Law School community in dialogue, and particularly in action to make this institution truly a place in pursuit of justice for all.

Signed,
Elizabeth Blake, Tenant Advocacy Project
John Fitzpatrick, Harvard Prison Legal Assistance Project
Maria Leister, Harvard Defenders
Sarah Morton, Harvard Prison Legal Assistance Project
Marcia Peters, Tenant Advocacy Project
John Salsberg, Harvard Defenders
Joel Thompson, Harvard Prison Legal Assistance Project
Lynn Weissberg, Tenant Advocacy Project

Related letters of support:

-Open Letter to HLS Community

-Letter of Support

Facilitation Challenges: Navigating the Space Between Neutrality and Identity

lindsey-whyte
By Lindsey Whyte

As a brand-new student in the art of facilitation, one of my first lessons was in the importance of maintaining neutrality on the substance of discussion and, relatedly, in the value of calling in an outside facilitator to a sensitive discussion. The theory underlying this concept is that, by remaining neutral as to content, the facilitator is able to focus her undivided attention on the conversation’s process and on its participants.  Seasoned facilitators confirm this theory with experience, offering stories of past facilitations in which their status as a complete outsider, or their relative unfamiliarity with the substance of discussion (as compared to the conversation participants), was actually their greatest asset.  By arriving to the conversation as a neutral party and setting that expectation with the group up front, an outside facilitator is freed of potentially charged or problematic aspects of her identity – such as “insider” or “partisan” status, hierarchical power, decision-making authority, or potential bias – taking the focus away from her own thoughts or views on the substance and shifting it fully to the views of the dialogue’s participants.  Having quelled participants’ worries that she may be passing judgment on their comments or harboring a hidden agenda behind her process moves, the neutral facilitator gives herself, and the group, the best chance of drawing out the truest version of all perspectives, and thus of helping the group do its best work.

This lesson didn’t come naturally to me. One of the ways in which I connect with new people is through commonalities.  In a sense, I offer pieces of my identity as a means of building common human ground, affinity, and trust with others.  This natural tendency surfaced in one of my first facilitations, a simulated community planning meeting to brainstorm possible uses of an urban park.  Seeking to build rapport and trust with one particularly frustrated participant, a dog owner, I acknowledged her frustration and added, “I’m a dog owner myself.”  No sooner had the words left my lips than I saw on my other participants’ faces that my good-natured comment had aligned me with that frustrated dog owner’s positions, wiping away any perception I’d managed to build of the “neutral facilitator” in one well-intentioned swoop.  In the conversation debrief, my suspicions were confirmed:  our frustrated dog owner felt validated and legitimized; the others felt less willing to give voice to their thoughts and concerns – fearing that I would be less receptive – and left the conversation feeling unheard.  Lesson learned.

In conversations delving into race, privilege, and oppression, the neutrality/identity tension becomes even more complex. For one thing, participants will likely perceive the facilitator to have certain visible characteristics – such as characteristics indicating a racial identity, to give one example – which may denote to the participants “insider” or “outsider” status quite apart from whether the facilitator is an “insider” or “outsider” with respect to the specific topic of discussion.  The facilitator may choose to acknowledge these visible characteristics with the group up front – and may choose to comment on how they impact the facilitator’s own perspective or to what extent they reflect the facilitator’s actual identity – but he or she may not be able to alter how these characteristics impact participants’ perceptions of his or her neutrality in the conversation.  Additionally, the facilitator may bring to the conversation possibly less visible – but no less potentially powerful – identity components around lived experiences of privilege (or relative lack thereof), or personal experiences with racism, sexism, classism, heteronormativity, or other manifestations of systemic power and oppression.  As human beings – particularly those of us who have grown up in this country, steeped as it is in an ongoing history of systemic and institutionalized oppression – these identity components affect our perspectives and our contributions to conversations, in ways both conscious and unconscious.  Here again, the facilitator may choose to acknowledge the presence of these less-visible identity components with the group, all while reaffirming his or her commitment to remaining in the role of neutral facilitator as much as possible.

Regardless, group participants may recognize that, if the facilitator were to participate in the dialogue, these less-visible identity components could still manifest themselves in her comments or reactions, and would in any event shape her views on the substance in a way that could feel decidedly non-neutral to participants. As a result – whether or not a facilitator chooses to acknowledge the visible components of her identity – refraining from participating in the conversation and thus from divulging these less-visible identity components can also be an important part of maintaining neutrality in the eyes of the group.

In my experience last semester facilitating a series of small group conversations that frequently examined racism and other forms of oppression both inside and outside our law school community, I navigated my own complex tension between neutrality and identity, even as I continued to learn what it means to be a skillful facilitator. On the one hand, I am still learning how to marshal the theory and practical skills I’ve learned, including on the subject of facilitator neutrality, to foster an inclusive space for participants to share diverse perspectives and listen to each other with resilience and curiosity.  On the other hand, I am a white woman for whom the pursuit of being a better ally in the fight for racial justice that feels both urgent and imperative to me is an everyday process, one in which my eyes are continuously opened to how I can be doing better and one whose chief catalyst is conversation with others.  Nor, as a student in the law school, was I an outsider to these particular conversations.  I, and my stance on these issues, were known to some of the participants in my small group – my peers – and cannot, in any way, be described as neutral on the substance.

As I reflected on these tensions over the course of our series of conversations as a small group, I began to wonder: are there some situations in which a facilitator’s aspirations of neutrality must remain aspirations only in the eyes of the group?  If so, are the interests underlying facilitator neutrality still served by the facilitator professing neutrality as to the substance to the group and refraining from sharing any of her own personal struggles or experiences?  What are the interests underlying facilitator neutrality in this context?

To touch on the last of these questions first, I’ve suggested some of those interests above – building trust; fostering an inclusive space where participants can share dissenting views and learn from each other, without fear of judgment; and making all participants feel equally heard and validated in the conversation. Others include giving the facilitator the mental bandwidth to focus on other, important aspects of her role, such as keeping the group faithful to pre-established group norms, working to ensure that all participants have a chance to share their thoughts, remaining mindful of time, and listening carefully to each participant, drawing out prevalent themes and areas of difference for group reflection.  In some sense, these aspects are the true essence behind the meaning of the word facilitator – the facilitator makes the process of engaging in conversation easier for her participants by freeing them to focus exclusively on the substance.  Accordingly, if the facilitator steps too far into the role of participant, she risks losing herself, too, in the substance, at the expense of her role as facilitator.

These important considerations notwithstanding, over the course of our Real Talk experiment, I reached the conclusion that there are times when a facilitator can meet the interests behind declaring herself to be officially neutral in other ways.  Indeed, these other ways may even feel more authentic to participants if the facilitator is not, in fact, an outsider, or if aspects of her identity feel – either to the participants or to the facilitator herself – difficult to reconcile with professed official neutrality.  This may be particularly true if the facilitator has the opportunity to work with a group over time and in smaller groups, where all participants have the opportunity to speak, listen, and share ideas.

The facilitator has a number of tools in her belt, aside from professing neutrality, for fostering a low-risk and inclusive space from the start, even (perhaps especially!) in potentially difficult or emotionally-charged conversations. To promote transparency, the facilitator can acknowledge the interplay between her identity and the subject of conversation, affirming her commitment to creating an inclusive space while also signaling the possibility that she may participate at some point in the future.  By crafting careful group norms that encourage participants to respect each others’ views – even while digging in to them and even while disagreeing – working with the group to adopt norms that work for them, and then holding the group to those norms, the facilitator begins to lay the foundation.  On to that foundation, the facilitator builds a structure of careful and active listening, encouraging quieter participants to share when it feels right and helping more active participants to make that space for their colleagues.  All the while, the facilitator takes her cues from the group, looking for indications that trust and inclusivity are present, even as disagreement and emotion surface.

Once she is assured that this structure is firmly in place, then might the facilitator begin to experiment with participating herself. In my experience, this should be done with purpose and intention, and, can also do much to meet some of the interests behind remaining neutral on the substance.  For example, particularly in intimate group settings, the facilitator may choose to share her own struggles, missteps, or vulnerabilities, signaling to the group that, far from sitting in judgment, she too is grappling with the same difficult questions.  In the right group atmosphere, this sharing of identity can build trust and reveal an authenticity that participants may find comforting.  And of course, like any intervention into the dialogue that a facilitator might make, this move could also risk alienating members of the group who do not experience a struggle around these issues, potentially causing them to withdraw from subject matter about which they may already feel distance, or discomfort.  The choice of whether or not to share this information may not seem easy or clear in the moment, or even in retrospect.  And, my suggestion here is only that, in certain contexts, it could be a helpful one.

There is no one right answer to how to navigate the tension between neutrality and identity, particularly in conversations about privilege and oppression that affect all of us – albeit in ways that may feel differently and of a different degree. By remaining carefully attentive to the needs of the group, and reflecting constantly on how her identity can interplay with that dynamic, the facilitator can begin to work through some of these questions, incorporating the invaluable teachings of those with whom she has the privilege of sharing dialogue.

Spotlight and Systemic Journalism

Newspaper-clipart-10

Christopher Benson has written a great piece on Spotlight and the problems with an individualistic, rather than a systemic, focus:

[M]erely exposing individual wrongdoers does not go far enough if systemic flaws enable wrongdoing to continue.

That is the driving dramatic question for the movie and the emerging motivation for the Globe journalists.

Even more, though, it is a compelling challenge for the journalism profession on matters of race. Too often, we are content to frame stories about racial conflict as individual problems and not as institutional ones.

College campus tension, excessive police force, even racial political pandering are all framed as anomalies, problems caused by misguided individuals. As with “Spotlight,” that frame excludes what should be our real focus. As a result, we wind up missing a critical realization: We just might be part of the system we are “going after.”

Benson references instances of System Justification Theory, writing:

This is not a left-right bias, or even necessarily a black-white bias. This bias can spring from something seemingly benign — a belief that the system is fundamentally sound. People tend to believe problems only arise when individuals abuse the system. There is an unquestioned belief in the rightness of our institutions.

This tension between targeting bad individuals and focusing on systems is summarized in this dialogue, which Benson quotes:

Baron: “We need to focus on the institution, not the individual priests. Practice and policy …”
Bradlee: “Sounds like we’re going after (Cardinal Bernard Francis) Law.”
Baron: “We’re going after the system.”

I highly recommend reading the full piece, which has as many lessons for law and legal education as it does for journalism, here.