Capital Punishment and Ineffective Representation

From one of our systemic justice students, here is an illuminating website briefly describing capital punishment in America, focusing in particular in how inadequate representation disadvantages a large number of capital defendants and skews the system against them.  Included is an overview of several inmates in Arkansas who are currently scheduled for execution beginning April 17th and who received wholly ineffective representation.


Historic Settlement in Jennings

Great news from two friends of the Systemic Justice Project:

A small city bordering Ferguson, Mo., has agreed to pay $4.7 million to compensate nearly 2,000 people who spent time in the city’s jail for not paying fines and fees related to traffic and other relatively petty violations.

Alec explains the systemic place of this litigation:

“This historic settlement is part of a national movement to change how indifferent we’ve become to putting human beings in cages, and to end the notion that courts can be used as tools of revenue generation rather than places of justice,” said Alec Karakatsanis, whose Washington-based nonprofit organization, Equal Justice Under Law, brought the suit with the Arch City Defenders, a Missouri nonprofit group, and the St. Louis University School of Law.

See the full New York Times story here.

Why blaming the homeless makes people feel better

Homeless teenage boy and girl

Systemic Justice Project friend, Jay Willis, has recently been writing with insight and wit about the problem of homelessness.  This week, he published the following op-ed in Crosscut


In Seattle, the recent explosion in homelessness has transformed the issue into a public emergency, demanding immediate, large-scale intervention. But as the estimated price tags of policy proposals grow, the angry backlash against the city’s homeless residents has intensified. Today, it’s rare to see an opinion on how to address the ongoing crisis that doesn’t make extensive use of the CAPS LOCK key.

Why do people sometimes respond so negatively to those living in crippling poverty? There are a few simple, well-studied psychological strategies that people use to alleviate their inherent unease when confronted with severe inequality. Learning to better understand these unconscious thought processes can foster greater empathy, encourage realistic thinking about the issue, and spur progress toward meaningful solutions.

To illustrate, let’s use reactions to an op-ed I wrote in the Seattle Times last month. In it, I argued that when the city conducts a “sweep” to clear homeless encampments, it’s prohibited from unreasonably seizing and destroying residents’ personal possessions. Although Seattle can regulate its streets, the U.S. Constitution doesn’t apply only to people who can afford rent.

I know that the first rule of writing on the Internet is to never read the comments. But the responses were interesting, as they so neatly showcase one way homelessness is explained away as an unfortunate yet acceptable fact of city life. Consider, as some commenters did, the idea that it’s okay to not help homeless people, because they like being homeless.

Screen Shot 2016-06-18 at 9.52.44 PMThe psychologist Melvin Lerner calls this thought process the “Just World Theory”: people prefer to think that they live in a fair, equitable society, and will find ways to view the world as such—even when it requires logical gymnastics to do so.

Do so many of us really think that Seattle’s thousands of homeless residents prefer it that way? When I’ve been able to speak with those who live in The Jungle, not one person expressed any fondness toward spending their nights in five decades worth of blackened highway runoff. But it’s deeply distressing to accept the alternative: that our society freely tolerates human suffering, and that the benefits of the most prosperous period in the region’s history so cleanly elude its most vulnerable residents.

So we do as all self-respecting Seattleites do after each promising Mariners spring that flames out by September: we rationalize, constructing a narrative that explains inequality as the consequence of choices made by free-willed individuals, rather than as a sign of serious societal problems that we are obligated to fix. Reasoning that unsheltered people like living under a freeway — no matter how absurd this is once you stop to think about it — makes this state of affairs much easier to accept.

Others choose to view Seattle’s homeless residents through the “Blame Frame,” a term coined by Jon and Kathleen Hanson. The idea goes like this: when talking about members of our own social group, we tend to attribute good outcomes to having good character. People “like us” succeed because they work hard, put in effort, and happily see it all pay off.

However, when something bad befalls people we consider similar to us, we are quick to explain and exonerate. Something beyond their control—a smart investment gone bad, an employer that went under, the market tanking at just the wrong time—is to blame. “He’s a good guy,” we might say. “Just had some bad luck is all.” After all, we know what kind of person they really are: a good one! Through hard work, they’ll be back on their feet in no time.

We do not afford this same benefit of the doubt to the disadvantaged. Instead, when confronted with bad outcomes experienced by members of other social groups, we blame those people’s inherent character flaws. Just as good people deserve good outcomes, bad people deserve their lot in life, too. “Homeless people do not deserve help because they are lazy drug addicts. They don’t want to work. They have no one to blame but themselves.” Or as two creatively-named commenters put it:

Screen Shot 2016-06-18 at 9.53.10 PMSeattleites complain all the time about rising housing costs and the region’s ever-shifting job market. But even as people bemoan the role of these phenomena in their own lives, when it comes to the rise in homelessness, they often won’t connect these issues to it. This is an insidious double standard. By relieving the inclination to develop a nuanced understanding of the plight of Seattle’s homeless residents, the Blame Frame allows us to feel little responsibility to help those who need it.

If all this seems intensely depressing, I present to you a case for hope.

Screen Shot 2016-06-18 at 9.53.23 PM

This is a valiant attempt to resolve difficult, conflicting emotions. (Is it you? If so, email me, and I’ll buy you a drink.) The author first tacks to the concepts outlined above, asserting that homeless people who “like their way of living” do not “deserve” help. But just a few lines later, they acknowledge an important tension: they do want to help those who are homeless due to “bad luck.”

This person recognizes that so much more probably goes into homelessness than any one individual’s decisions. And like many of us, he or she is trying to work these dissonant feelings out.

To be clear: the psychological concepts presented here are natural and unconscious. This means that no one — including you or me — is a malevolent person for sometimes wondering if homelessness is a lifestyle choice, or for wanting to blame the homeless for their own misfortune. But acknowledging how our reactions to complex social problems fail to capture all sides of the story is a critical missing step in Seattle’s discourse on homelessness.

By better understanding what goes on in our own heads, we can help foster more critical thinking about what causes homelessness, and, just maybe, how best to solve it.


See related articles:

Reflections on Real Talk: An Introduction

Real Talk LogoIn fall 2015 the Harvard Negotiation & Mediation Clinical Program (HNMCP), in collaboration with the Systemic Justice Project (SJP), launched a joint initiative for Harvard Law School (HLS) students called Real Talk – a series of small group facilitated dialogues and curated events on issues of diversity, equity, and inclusion. The initiative developed from a shared interest of HNMCP and SJP to promote dialogue among HLS students on how legal education can, at times, unwittingly silence student voices and experiences, especially as these experiences relate to identity and personal narrative.

Real Talk is an initial effort to provide a forum for HLS students to learn with and from each other— encouraging genuine conversation around challenging issues, emotions, and narratives that relate to the law, legal systems, and legal education; a forum that promotes an inclusivity and openness that can often become stymied in traditional law school classrooms; and a forum that promotes respect, understanding, curiosity about the other, and a willingness to be “raggedy” even in our deepest moments of difference and dissent. For HNMCP, Real Talk represents the first manifestation of what we hope will be a new, larger dialogue and facilitation initiative.  For SJP, Real Talk is part of a general commitment to encouraging conversations about diversity and inclusion in legal education and, more generally, about systemic problems in society.

The pilot program brought together a small number of HLS student participants, trained student facilitators, and faculty advisors in an innovative experiment of facilitated dialogue and open engagement. We were fortunate to recruit four student facilitators who have extensive facilitation training and experience, each having taken the HLS Lawyer as Facilitator and the HLS Negotiation Workshop. These facilitators led small groups of six participants (composed of first and third year law students) in four dialogue sessions throughout the fall semester. These dialogues were bolstered by several events – Fighting Debtor’s Prison in Ferguson,[1] After Ferguson, Baltimore, New York: Strategies for Systemic Change,[2] and On the Battlefield of Merit: the History of Harvard Law School[3] – that served as the basis for two of the dialogue sessions.

The first round of Real Talk was met with decisive gratitude. Participant feedback indicated that the program provided a much-needed environment to express their experiences and perspectives, listen to the stories and views of others, and to share and receive a sense of empathetic understanding. In talking with students throughout the initiative, we developed an even deeper appreciation for how important spaces for authenticity, reflection, vulnerability, and conflictedness are in higher education and legal training.

We also were reminded that creating those fora is typically fraught and complex. Our preparation and review sessions with facilitators highlighted many challenges to creating open dialogue. What is the role of neutrality in facilitating dialogue on equity and inclusion? What might be the role of power and privilege in dialogue facilitation? What impact does the facilitator’s identity have on discussion and how does a facilitator manage them? How does participant composition across identity, background, and status affect the dialogue experience and what are the implications (if any) for convening such groups? We gathered that there is great value in deeper and more nuanced facilitation training at HLS, as well as a great need for HLS students to receive training on engaging in dialogue as a participant. And, as with most worthy experiences, we were pleased to have left with as many questions as “answers.”

Now, we have invited the facilitators from Real Talk – Ariel Eckblad ‘16, Deanna Parrish ’16, Carson Wheet ‘16, and Lindsey Whyte ‘16 – to share their reflections through a series of blog posts. We will publish one blog post from a different facilitator each week. Their posts touch on the themes mentioned above, as well as others, providing an inside look into their experiences, lessons, and questions from Real Talk. We hope that you enjoy these pieces, and that you will join us as we seek to dig more deeply into this important work.

By Robert C. Bordone, Jon Hanson, Jacob Lipton, and Sam W. Straus

[1] A panel discussion with Thomas Harvey, Executive Director of ArchCity Defenders and Alec Karakatsanis ’08, Co-founder of Equal Justice Under Law.
[2] A panel discussion with Thomas Harvey, Executive Director of ArchCity Defenders, Chiraag Bains ’08: Dept. of Justice Civil Rights Division, Marbre Stahly-Butts: Center for Popular Democracy, and Alec Karakatsanis’08, Co-founder of Equal Justice Under Law.
[3] A lecture and discussion with Dan Coquillette, Charles Warren Visiting Professor of American Legal History, Harvard Law School.


Whitney Benns and Blake Strode on Systemic Racism

jail bars

Systemic Justice Project alums Whitney Benns and Blake Strode have a powerful and vital piece in The Atlantic about 21st century debtors’ prisons in St. Louis, but really about systemic racism. They write:

As the recent deluge of reports and litigation confirms, and many have long known, thousands of people throughout the St. Louis metropolitan area are routinely sent to jail because they cannot pay local court fines and fees. These people are poor, and they tend to be black. While there are many terms to describe this—including, importantly, unconstitutional—there is one with historical resonance reserved for such a practice: debtors’ prison.

Whitney and Blake use the terminology of systemic intent to explode the false dichotomy between individual intent (which is easy to isolate and condemn) and amorphous systems (identification of which as often leads to helpless shrugs as to calls for action):

There is a tendency to understand intent, much like racism itself, as only an interpersonal phenomenon. Bias, both conscious and unconscious, is real and destructive. But the systemic intent at work in a place like St. Louis is more a matter of inertia than personal biases. Like Frankenstein’s monster, the system has a life of its own. Local courts and jails are not rife with injustice and racial disparity because they are staffed with ill-meaning personnel; they exhibit these problems because they are the product of structures and policies designed with racial hostility. That is to say, ultimately, these structures and policies have worked precisely as planned.

Their weaving together of the individual and the systemic reminds us that it is the decades of deliberately racist intent that allows racism today to be hidden “in the seemingly colorblind tedium characterizing the bulk of city affairs.”

The story of the debtors’-prison crisis in St. Louis is partly one of individual failings by local officials and institutional actors whose job security depends on collective indifference to the status quo. But to regard the story solely, or primarily, as one of individual failings is to fundamentally misunderstand the problem itself as well as the structural forces responsible for the design of the region. This design did not emerge last week, last month or last year. It is the many-headed hydra produced by conscious and sustained efforts many decades ago.

I highly, highly recommend that you read the full piece here.

You Have to Start Somewhere: Whitesplaining Harvard Law School’s Crest, Black Electrical Tape, and a Better College Campus

HLS Defacement

By SJP Friend Jay Willis (reposted from Needs Further Review):

With increasing frequency, students on college campuses across the country are forcing their  old, proud, veritable institutions of higher education to think critically and honestly about the echoes of entrenched racism on their campuses. Results have been…varied. At Georgetown, students recently successfully lobbied to rename a building named after a university president who used the proceeds from slave sales to pay the university’s bills. At Yale, there is an ongoing debate regarding the propriety of naming one of the university’s residential colleges after noted white supremacist and vocal slavery supporter John Calhoun. (So far, nothing doing). And at Harvard Law School, students have taken issue with the school’s crest.

Why the crest? Appearing nowhere on any list of “Fun Facts” about HLS is the fact it was founded in 1817 with a bequest from the estate of one Isaac Royall, a hilariously wealthy Antiguan plantation owner who, in addition to indirectly founding the world’s most famous law school, also suppressed a mid-drought slave revolt in 1736 by hanging six, breaking five on a medieval torture wheel, and burning 77 more at the stake. Harvard still uses the Royall family coat-of-arms as its crest, a rather unsettling fact about which more than a few professors have repeatedly and frankly expressed their discomfort (for example, when now-Justice Elena Kagan and Professor Martha Minow assumed the deanship, they both declined the traditional dean’s title of “Royall Professor of Law” for this reason).

In the largest building on campus, Wasserstein Hall, a series of small black-and-white portraits of the school’s tenured professors lines the first two floors. As far as I know, once a professor receives tenure, their portrait stays there forever. It’s a nice and fairly innocuous way to connect the present to the past; mostly, the suspenders- and pleats-laden portraits are there to show you just how handsome your ancient Property professor was as a young man, and/or to serve as a cautionary tale regarding apparently-once-trendy wardrobe choices. On Wednesday, November 18th, students from all Harvard schools, undergraduates and graduate students alike, marched in support of the protests at the University of Missouri. Some law students placed black electrical tape over the HLS crest that appears in Wasserstein Hall. On Thursday, November 19th, they arrived at class to find the same tape repurposed to deface the portraits of their African-American professors instead.

I saw this posted online by my friend Jonathan Wall, who, since I am now three full years out of law school, is the only person I know there anymore. It was more than a little surreal to see a longstanding throwaway aspect of the school’s interior decorating scheme so suddenly elevated in importance for such a terrible reason. Black students, shocked and outraged and afraid, spoke out about how incidents like this make them feel unsafe and uncertain and and unwelcome. About how they spend their entire academic careers (and then after that, their career careers) wondering if their professors and peers take them seriously or consider them products of affirmative action or diversity initiatives. And about how seemingly right when they start to think, no, I’ve got this, I belong here, something like this happens to bring it all tumbling town.

It is impossible to ask students of color to arrive at school, take this all in, and then to stride confidently past these portraits and into a classroom and pretend like everything is fine and take diligent notes on the Rule Against Perpetuities (note: it is always the Rule Against Perpetuities) or whatever. All students, irrespective of race, are trying to pull off the already-tough-enough task of going to lecture and taking notes and studying for tests and writing papers and making friends and falling in love and getting drunk at bar review and falling out of love and being kids and growing up, all at the same damn time. But students of color must also grapple with the daily reverberations of a legacy of racial discrimination and try and figure out how that fits into their puzzle, too. They’re at the same school, on the same campus, and in the same classrooms as white students. But on days like last Thursday, it has to feel a world away. Black students cannot have the same experience as white students when they know that any day could be interrupted by racism in a way that requires them to drop everything, consider, and respond.

This sounds…exhausting. Yale student Aaron Lewis describes how many students of color have got to feel at this point:

Students should not have to become community organizers just to receive acknowledgement and respect from their administrators. It’s disheartening to feel like so few people in power have your back. Yes, we are angry. We are tired. We are emotionally drained. We feel like we have to yell in order to make our voices heard.

Right. I can understand that this must be horrible. I can even understand how horrible it probably is (as in, “very”). I can understand that it is a frightening, disheartening burden that on some days just makes them want to disappear, except they know that that is exactly what some people want them to do, so they instead have to find ways to manage and to move on. But no matter what I do, no matter how hard I try, no matter how many times I put on my Obama t-shirt and spin around in a circle in front of the mirror and shut my eyes tightly and whisper “post-racial society,” I can never actually feel the way that students of color of do. I can’t know what it is like to have my skin crawl as I walk past Slavery Hall, or how it feels to have the response to my protests be the publicly vandalized faces of the professors who look like me. Being a member of a group that is constantly subject to both overt and institutional speculation, scrutiny, and scorn is an experience I cannot know, because neither I nor anyone who looks like me has any way of doing so.

By itself, that’s not the problem, because short of pulling a Jess Row, there isn’t much I can do about it. The problem is instead that because there are more white people than black people in higher education, and those white people have grown mighty used to running things for several centuries now, black students’ license to express their discomfort and their discontent, and their ideas for addressing those feelings, is almost entirely contingent on white people’s willingness to hear them out and, hopefully, to take their word for it. Black students are authorized to voice their concerns only for so long as enough white people look at the purported problem and decide, sure, if you say that this is a problem, we will entertain proposals to do something else instead. Black students can make inroads against intolerance and demand systemic change as long as the majority finds the message acceptable, the methods nonthreatening, and the goals reasonable enough (all of which are metrics set by, again, generations of white people). And the moment that the powers that be decide that, no, this isn’t a real problem, you all need to calm down and quit complaining and find something more serious to get worked up about, all that momentum is suddenly and arbitrarily extinguished.

This dynamic is nicely encapsulated in that bastion of Old White People Who Know What’s Best: op-ed pages. Take this collection of drivel-laden paragraphs masquerading as an intelligent thought written by Colin McEnroe, that one second cousin that you dread having to talk to at Thanksgiving dinner, whose column in the Hartford (CT) Courant has some scorching Baby Boomer-era wisdom for today’s students who have the gall to object to racist things about which he has never thought (all emphasis mine).

I’ve got this to say to the Yale students engaged in bristling, expectorating confrontations with authority: You’re overindulged. You don’t know how to act right.

This just kind of feels like a paragraph from which an editor excised the word “uppity,” right?

You’ve come so completely unglued in a very low-stakes game that it’s tempting to conclude you’d be useless if the going ever got tough.

I want to crush this take up into a powder and sell it in baggies.

There’s not enough on the line. One of my favorite tweets from the week — I’ve lost track of the tweetist — was “When did students go from protesting the Vietnam War to protesting being offended?”


The 2015 counter-argument — and it’s not a specious one — is that white, male, hegemonic figures like [Yale President Kingman] Brewster and me can’t even imagine how that risk is lived and felt by more vulnerable minorities.

Wait…wait, yes, that’s exactly the point that students are trying to make here! Okay, so you get it! Hey, maybe this isn’t so bad after all, and maybe there is some hope at arriving at a more nuanced cultural understa–

Point taken, kids. But call me when you’ve got a big issue. Meanwhile, understand that mom and dad aren’t there anymore with the Purell and the wipes. 


You should read the rest of Mr. McEnroe’s column if you suffer from hypotension or insufficient rage or something, but those excerpts nicely summarize the crux of the institutional response to minority students’ pleas to a system of authority that was never built to hear them in the first place. Black students, your protests are tolerated until we decide that they are not any longer. Then, you are coddled, entitled, thin-skinned Millennial wolf-criers who cannot distinguish between a few minor slights and real, true adversity (WHICH, AGAIN, = VIETNAM WAR)

This is not a tenable state of affairs. Students of color already bear the burden of parrying not only overt discrimination but also the daily slights that slowly rob you of the will to try anymore. How many professors think they’re occupying the seat of a more qualified white student? How many students think that? How many people stop listening to them when they decide to speak in class? Did I get this bad grade on my paper because of race? Wait, did I get this good grade on my paper because of race? McEnroe and his ilk accuse black students of perceiving injustice where there is none, of playing the race card, of viewing everything through a racial prism. But this fails to acknowledge that black students have spent their whole lives being viewed through a racial prism. Why are they expected to not do the same thing?

At the same time, the university expects and demands that black students put their heads down, be thankful, and act like they’re comfortable. Well, hey, you made it here, too. You’re just like everyone else. Stop asking for special treatment. Why is it always black people talking about race? But the need for honest discussions about race in higher education is, by definition, a need that will be plain only to minority students. You never hear discussions of the pressing need for greater recognition of Western European culture in university curriculum because, um, Western European culture is just called “university curriculum.” White students don’t complain about the relationship between culture and pedagogy because that has never been a problem they have had to deal with. Black students who want to talk about race are not oversensitive or hysterical. Their desire simply reflects the reality that they are the only ones who have ever had to think about it.

The final piece of this really, really bleak puzzle is that many universities have responded not by formally examining their own practices but instead by tasking minority students with engaging in extracurricular guerrilla diversity. Students are expected to blend seamlessly into the academic environment while also serving as occasional unpaid spokespersons of The Minority Experience. My friend Andrew sent me a piece by one Alana Massey, who spoke out against the narrative that black students are responsible for teaching their peers about diversity and acceptance. Black students are there for the same reasons as anyone else, Massey argues: to get an education. Yet they find themselves conscripted as diversity ambassadors to a student body that is under no obligation to actually listen. This layer reveals the most insidious double (triple?) standard of all: black students are allowed to lobby for change, but only if the powers that be deem their requests acceptable, and then, only if they accept all responsibility for doing so. It is the job of universities, not the students of color who attend and pay tuition, to provide a holistic education. But universities have gotten very, very good at outsourcing that task.

There is no simple solution to these problems, though if you have any ideas, please tell them to me so that I can write about them and pass them off as my own. But I do think that there is a simple first step. Colin McEnroe won’t like it. Here it is anyway: listen to black students, about everything, and take their word for it, and do what they say, and then see what happens.

The powers that be need to stop analyzing every call for change to see if it is an acceptable de minimis tweak to The Way Things Ought To Be. They need to stop evaluating alternate viewpoints in light of what is easiest, or what is within the scope of preserving History or Tradition, or what they think will address the problem even when students plead for something else. Stop sneeringly wondering if “all this hubbub” about old building names is warranted. Stop dismissing suggestions for more inclusive curriculum as the naive complaints of entitled Millennials (SOMETHING SOMETHING SOMETHING VIETNAM), or as the calculated requests of lazy students unwilling to subject themselves to rigorous academic standards, or both. Stop telling people to just calm down, to relax, and to not make such a big deal out of everything. Start listening instead.

The American university is a remarkably successful institution. It is also four hundred years old and has, up until only very recently, been almost completely dominated by white people. While minorities of course now occupy some positions of power, the system in which they operate still favors the majority. So why blindly defend the integrity of an institution that only welcomes certain points of view regarding what counts as offensive, and what is okay? Why not give another way of making decisions a try, and see if a more inclusive place can work just as well?

I willingly concede that buildings named after long-dead racists and antiquated crests borrowed from long-forgetten bloodthirsty torturers are not the most significant problems that face minority students today. And renaming every single building and disposing of every offensive symbol would not be a panacea for racism on campus. But it does not follow that universities should therefore ignore things like this completely. Universities that sincerely engage with students on even seemingly minor issues build trust, and universities that balk or fight back in the name of “dealing with the Real Problems on Campus” only exacerbate the perception of imbalanced power dynamics as firmly entrenched. If administrators won’t listen to earnest requests for renaming one stupid building, how are black students supposed to envision a world in which administrators also care about ending racial profiling or unequal access or de facto segregation or any of the other Real Problems on Campus, too?

The fact that a change is simple and easy does not mean it is not worthwhile. Symbolism counts. Trivial though they may seem to some, building names and school logos are as good a place to start as any.

Get much more of Jay’s insightful analysis at Needs Further Review.

Derrick Bell Protests HLS – 25 Years Ago Today

Derrick Bell at HLS

“The reality, of course, is that few institutions — and certainly not Harvard — move toward more racial inclusiveness without pressure sufficient to awaken a tardy recognition that a modicum of diversity can be a valuable addition to a school’s reputation.”

~ Derrick Bell (quotation from 1998 article)

From Wikipedia:

In 1990, Harvard Law School had 60 tenured professors. Three of these were black men, and five of them were women, but there were no black women among them, a dearth Bell decided to protest with an unpaid leave of absence.  Students supported the move which critics found “counterproductive,” while Harvard administrators cited a lack of qualified candidates . . . .

Related posts:

Professors Who Will

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.

Some related Justice Blog posts:

On Privilege

Privilege 2

By SJP Friend Jason Meyer:

On Me.

I am a lifelong Missouri resident. I am a Mizzou (University of Missouri-Columbia) fan. I am not a Mizzou alum, though everyone else in my family is, as are a large number of my friends. I am white. I am male. I am straight. I am Jewish. And I am privileged.

I am a graduate of public elementary, middle, and high schools, a private Jesuit university, and an Ivy League law school. I am a Teach for America alum, and taught high school social studies and special education in a St. Louis City high school. I have worked for a federal judge, and am a corporate lawyer. I own a house, am married, and have a toddler and a dog. And I am privileged.

So what do I mean when I say “I am privileged?” For starters, I mean that I grew up in a stable home. I’ve always had plenty to eat. My parents are college-educated and were able to provide me with books, and computers, and help with homework. I went to an excellent public school. I participated in sports, and scouting, and music, and art. I have traveled to other states and to other countries. My parents paid for college. My father-in-law helped with a down payment on a house. I’ve been pulled over without it turning into an arrest, or worse. And so on. That is not everything. But it is certainly not nothing.

This is not to say I have never experienced prejudice, or discrimination, or humiliation (albeit nothing close to the daily struggles of many others). I grew up as a liberal Jew in evangelical Todd Akin country. I have been told I’m going to hell . . . a lot. I have been called a slur. I had a fight with a middle school teacher who assigned actual graded work based on Christmas Carols. I stood alone to the side while school groups held prayer circles before competitions. I also went to a college where my classmates had family names that appeared on buildings and books and presidential libraries. I have had to say “Sorry, I can’t join you – I can’t afford that” more times than I can count. I have been asked if “I’m one of those financial aid kids.” I have had to explain why it would not be shameful if I was.

But more often than not, my experience on the wrong side of discrimination and privilege (institutional, personal, or otherwise) has been as an observer. In 3rd grade, I learned how a black classmate who lived in the city witnessed her mother being shot in their kitchen by a drive-by shooter. I was a senior in high school in 2001 and witnessed a Muslim girl being pushed down the stairs a week after 9/11. I also saw kids at my high school throw things – as in literally hurl objects through the air – at a friend of mine who was gay. In 2004, I attended a rally at my college after a racist email was sent to the Black Student Alliance, and listened to countless stories of other racist incidents that had been occurring on campus. In a law school “Employment Discrimination” class, I was present when a white classmate observed, “It seems to me like this school is plenty diverse,” and I listened when one black student exasperatedly responded, “There are only six black people in here, and this is a class on discrimination!” I was a volunteer at the Ferguson Public Library where hundreds of children came for supervision and for education when their schools were closed due to community unrest. And these are just a few of the overt examples.

I begin with this auto-biographical information because I believe context, and bias, and definitions are important – especially in conversations like this one. I do not pretend that I can control for my biases, and so I figure the next best thing is to disclose them. Make of them what you will.

On Mizzou.

I have been thinking about privilege once again in the wake of the events at Mizzou over the past few weeks. (Quick sidenote: Not to get overly meta, but is the ability to stop thinking about privilege an example of the very privilege one enjoys? I would think yes.) And against my better judgment, I have been following not only the local coverage of the situation at Mizzou, but the internet and “water cooler” comments as well. And by and large, they are not very pretty.

I have seen a friend post an article about how students today are “overly coddled,” college is supposed to challenge, not shelter you, and students need to “buck up” and deal with it. For the record, college is supposed to challenge you. By making you learn to live with roommates. And manage your own time and finances. And by presenting new ideas and contrasting ideologies. And by making you question your own assumptions. Being called “nigger” as you walk to class? That’s not the kind of challenge anyone should have to put up with, in any context.

I have heard distraught alum discussing the hope that things soon “return to normalcy” and that Mizzou can be “great again.” This one is a little more subtle, but it is still there. The whole point is that what counts as “normal” was not working – at least not for significant portions of the University population. And that memory of back when Mizzou was great? Great for whom? Things were not better in the past – not for minority and marginalized students. They simply did not have the same voice, and so it was easier for everyone else to ignore that the problems existed. That’s not “greatness.” That’s ignorance.

One recent comment suggested that instead of diversity classes, every student should have a mandatory virtual visit to Africa “so they could develop some appreciation for how lucky we all are to be here in America.” What struck me about this comment was the lack of self-awareness – it did not appear to be provocative or malicious, but was posted on a Facebook page as what I interpreted to be a sincere suggestion.

In fact, that’s a common theme in all of the comments above – I believe that they were offered in good faith. I have purposely omitted the comments that are overtly racist – calling the football players “animals,” asking if the “Natives” are happy now, and the like – because I don’t think those really need to be pointed out as problematic. (Right? Please be right.) But all the other things being said? I think those deserve more scrutiny.

On Privilege.

Because at the heart of the comments above, really, is privilege. Believing that the problems can be conquered by “bucking up” or “putting your head down.” Feeling that “normal” means comfortable and safe. Remembering epochs of history that saw overt and widespread oppression of numerous groups of people as “great.” Thinking the “problem” could be solved by simply showing these upset youngsters how much worse off they could be. It is a privilege for this to be your reality.

At its heart, there are two main trends of criticism or push-back that I see emerging, not only regarding the situation at Mizzou, but in any related discussions on race and privilege. They are, broadly speaking:

  • All it takes to succeed is hard work, regardless of race; and
  • How can there be privilege when many black people are better off than many white people?

It strikes me that these two points are especially important because they come up time and again, and because they are complicated, personal, and at least facially logical.

The first point is often articulated as something like, “My grandparents were immigrants with nothing, and my parents worked hard to get where they are. Why can’t blacks do the same?” The second may sound like this: “Look at Barack Obama. Michael Jordan. Oprah. I’m supposed to believe any of them would trade being black for my supposed ‘white privilege?’”

A more specific version of this latter point has also recently arisen in response to the Mizzou situation. There appears to be a growing narrative among the commenters regarding Jonathan Butler, the graduate student who engaged in the initial hunger strike on campus, and how apparently he comes from a very wealthy family. Although not fully explicit in all the comments, the plain implication is that Butler has no place to speak of race or privilege because of his wealth. (Edit: Sometimes it is fully explicit. I just stumbled across this one: “His family is wealthy, deservedly so, and that makes the kid walking talking proof that ‘white privilege’ no longer exists.”)

I would suggest that both of these postulations suffer/arise from self-serving attribution bias: When I do better than others, I believe it’s because of hard work. When others do better than me, I believe it’s because they are lucky. When I struggle, it’s because I’ve had bad luck. When others struggle, it’s because they aren’t trying hard enough. This is not inherently racist – we do it in all sorts of contexts. That driver cut me off – he’s an asshole! I cut that driver off – but only because there was an ambulance behind me. Happens all the time.

On Conceptions.

I am a visual person. To my wife’s constant consternation, I need to see things to understand them. So I have tried to make a visual representation to help explain/understand the problem with each of the two premises discussed above. Here is a simple representation of a person’s life.* We can call the red lines “socioeconomic status,” and the green line is a person’s growth in status based on hard work.


But that’s not really how life works. There are obstacles in our way – otherwise, everyone would constantly be moving up the ladder. These things slow our progress, so I’ll call them “barriers.” They can be institutional barriers (e.g., access to schools), or personal ones (e.g., illness). They can be a bit of both (e.g., illness + access to medical care), and they slow our upward mobility.


But not everyone encounters the same barriers. In particular, there are less barriers to mobility the higher one falls on the socioeconomic ladder. I don’t think this is hugely controversial; for example, someone who begins life in a middle- or upper-class home is likely to attend better schools and have parents that can help pay for college or provide a down payment on a home. Accordingly, the barriers are wider at the bottom of the ladder than at the top.


Already we should be able to start to see why the “all it takes is hard work” argument begins to fall apart. Even assuming everything else about two individuals is the same (race, sex, etc.), the same amount of hard work will not equal the same amount of success for two people at different points on the socioeconomic ladder. The better-off individual has less barriers slowing down his progress. Thinking about it slightly differently, these two individuals worked equally as hard, and yet the gap between them has still grown wider by the time they have had to contend with their respective barriers.


Imagine, for example, two individuals of the same intelligence, who attended the same college, and got hired at the same job. The wealthier individual’s parents paid for college, while the poorer individual took out student loans. Every paycheck, the wealthier individual puts money into savings, and investments, and retirement. Every paycheck, the poorer individual puts money towards her student loans. And so every day the wealthier individual continues to pull further ahead of the poorer one, due to nothing other than the point at which they both started.

But in the example above, both individuals were working off the same graph. In other words, the only difference in their institutional barriers would come from socioeconomic status. But what if they did not share all of the same characteristics? For simplicity’s sake, let’s call Person A, a straight, white, Christian, cis male, and Person B, a straight, black, Christian, cis male. In other words, the only distinction here is race. Now we have to use two separate graphs, and they might look something like this:


The width of the “barriers” bar is wider for the black man. There is abundant evidence that these greater barriers exist. Take but a few (statistically/research-proven) examples. If you have two otherwise identical resumes, one with a “white name” is more likely to be called in for an interview than one with a “black name.” Black men are more likely to be arrested, and more likely to receive harsher sentences, than white men who commit the same acts. And so on.

But my goal is not really to prove the fact that black people face greater barriers. Rather, my goal is to show that this can be true even when people’s personal, real-world experiences show that (1) hard work equals success, and (2) there are some very successful black people in the world. Take a poor, white Person A, and a wealthy, black Person B. Their graphs look something like this:


If you take a snapshot at either the beginning or end, all you’ll see is that the black person is doing better than the white person. This is why it can be so challenging for a poor, white man to accept that he has “white privilege” – he looks around and sees black people doing better than he is, and says “Where’s my privilege?” And this is totally understandable.

But it’s also not the right comparison. If you look more closely at the graphs, you’ll see that the black man encountered about the same amount of “barriers” to growth as the white man, even though the black man should have had an easier path due to his increased wealth. In other words, the black man still experienced more barriers than he otherwise would have simply because he is black.

The better comparison is between two individuals who start in the same situation:


No matter where they start on the socioeconomic ladder, Person A will encounter less barriers to mobility. Assuming an equal amount of “hard work,” the black man will still end up worse off at the end of the day. Or, alternatively, if a white and black man both start at the same point A, and end at the same point B, then the black man will have had to work harder to get there.

That is privilege.

On Concluding.

The point here is not to make people feel bad. It is not to argue for “white guilt.” It is certainly not to say, “White people, none of you have had it bad, or have had to work hard, or really deserve what you’ve gotten in life.”

It is to say, let’s open our eyes. It is to say that telling marginalized students to put their heads down and work hard will not solve these problems. It is to say that a “return to normal” is not good enough, and the “greatness” you remember may not have been so great for others. It is to say that Jonathan Butler’s wealth undoubtedly gave him certain advantages, but it in no way discredits his voice on issues of race and privilege.

Rather than having real, substantive conversations on whether we should do anything to deal with these issues, and if so, what, we are stuck arguing over whether there is even an issue in the first place. Many people struggle to see privilege because it appears inconsistent with their observations that hard work equals success, and that many black people are successful. This is to say that there is no inconsistency there.

I don’t purport to know the solution when it comes to dealing with privilege. But I know that there will never be one as long as people continue to ignore that there’s a problem.

* At the risk of stating the obvious, the graphs are artistic representations rather than quantitatively significant; socioeconomic status is not the only measure of privilege; people aren’t always moving upwards in mobility; and every person will have different amounts of “barriers” to contend with, etc.