Legal Education

The Justice Lab – Spring 2017

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Announcement to HLS Students

In the past week we have heard from many students, lawyers, alums, and others looking for ways to respond to the longstanding and immediate crises in our country and our world.

The Systemic Justice Project was created to give students the opportunity to work on pressing policy problems in collaboration with lawyers, academics, legislators, organizers, and activists engaging those issues. The goal has been to understand the complex causes and interconnections of our problems and to develop innovative, systemic solutions.

This work has rarely been more urgent. We therefore invite all students who wish to devote curricular time to the injustices that have always been with us and the renewed injustices on the horizon to contact us and enroll in the spring Justice Lab from which prerequisites have been removed (Wednesdays 5:15 – 7:15pm).

We have some ideas for the road ahead, and we know you do too. We want to hear your suggestions and may be able to provide some structure, support, curricular credit, and an audience for any efforts you may already be planning.

We hope to host problem-identification and priority-setting events with our network of lawyers, legislators, and organizers in January to help inform our work in the spring, keeping in mind the need to fight fires and develop fireproof systems simultaneously. We will use the spring semester’s Justice Lab (and to a lesser extent, the Systemic Justice course) to put law students at the center of a network of concerned lawyers (and nonlawyers) to develop and propose legal and policy solutions to systemic injustices.

To join us in the Justice Lab — that is, to be made eligible for enrollment — or for more information, email jlipton@law.harvard.edu and hanson@law.harvard.edu and include the words Justice Lab in the subject line. For those of you who want to start work before the spring semester contact us as soon as possible. Plans are underway and we would welcome your involvement.

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Fair Punishment Project

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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

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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.

May the Force be With You

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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).

Open Letter to HLS Community

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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

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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.

Resetting Broken Bones: Real Talk at Harvard Law School

dpp-headshot.png By Deanna Parrish

As long as we are on earth, the love that unites us will bring us suffering by our very contact with one another, because this love is the resetting of a Body of broken bones. Even saints cannot live with saints on this earth without some anguish, without some pain at the differences that come between them.
-Thomas Merton’s New Seeds of Contemplation, ch. 4 (pp. 71-74)

This semester I had the unique opportunity to facilitate a small group of students in conversations on personal identity and the 1L experience. These “Real Talk” sessions were part of an experiment in dialogue-building at Harvard Law School: the students I worked with constituted one of four facilitated groups, each endeavoring to create a low-risk space for participants to process their experiences, and build understanding across lines of difference.

Our conversations ranged in tone, theme, and topic. The stiffness of the introductory sessions wore off over time, and soon my participants dove into dialogue, asking each other, what is the purpose of conversing with folks who aren’t of the same mind as you? What does productive conversation look like? How is it different from debate? Does Harvard Law School adequately prompt these kinds of conversations? Should it be doing so?

In our final few sessions, our conversations took on a new urgency. As movements and voices soared on college campuses across the nation, we asked ourselves, what is justice? What does it mean to be an activist? What does it mean to be an activist at HLS? Over time, statements became more specific, more personal. The texture of voices changed—the room felt softer and louder, all at once more vulnerable, and more confused.

I do what I do because I’m broken too.
– Bryan Stevenson, Just Mercy

I am drawn to facilitation work because of the amazing things I’ve seen come from human connection. Conflicts resolved and avoided. Emotional breakthroughs. Brainstorming and organizing. Against the backdrop of a legal system that suppresses too many voices, facilitation is the revolutionary work of helping people hear themselves, and hear each other. To do this, third parties—facilitators—are used to bring neutrality and structure to conversations.

Practicing neutrality means letting go of your ego, and your personal stake in the conversation’s outcome—having no preference as to the conversation’s result. However, as our Real Talk sessions increasingly examined student activism and our roles in institutional change, I wondered if I was capable of upholding this central tenet of facilitation. I am not agnostic as to the experiences of Harvard’s community of color. I do have preferences regarding the future of legal education. What is my duty to name these biases, or voice my opinions in the course of facilitation? More importantly, where do my responsibilities as a facilitator end, and my responsibilities as an ally to Harvard’s community of color begin? Some Dispute Resolution thinkers contend that if as a facilitator, you are not entirely neutral, you are guilty of manipulating your participants. As I became increasingly involved in activism in my life outside of Real Talk, I wondered, to what extent was this true of me?

Facilitators are also supposed to own the structure—often referred to as “process”—of meetings. Process can include setting an agenda, developing group norms, and managing any logistical considerations—like an hourglass for grains of sand, process provides form and function to substance. It is process that allows ideas to be articulated and absorbed by the group. While it is not the goal of process to alter substance, it can be a side effect. Different processes can lead to wildly different outcomes. As weeks passed, I questioned if I was shirking my responsibilities as an ally to HLS’s community of color by focusing on, and sticking to, process. Should I operate free of an agenda, and let the group determine where the conversation goes? Am I providing enough space for righteous indignation? For dissent? Are my group members leaving feeling silenced? Are they feeling more broken than whole?

[O]ur brokenness is also the source of our common humanity, the basis for our shared search for comfort, meaning, and healing. Our shared vulnerability and imperfection nurtures and sustains our capacity for compassion.
– Bryan Stevenson, Just Mercy

 In the days following our final Real Talk meeting, I read notes of reflection penned by my group’s members. In each note, I saw expressions of pain and passion. Notes in hand, the words of Bryan Stevenson had particular salience: You can’t effectively fight abusive power, poverty, inequality, illness, oppression, or injustice and not be broken by it.

 Grappling with our brokenness is a life-long endeavor for those of us committed to working towards justice. We are hurt by what we see, and we see it everywhere. Fractures in our systems, in our laws, in our leaders, in ourselves. It is this brokenness that inspires me to do facilitation work.

There are infinite tools for working towards systemic justice. Dialogue is one. For me, it is both a means to an end and an end in of itself. It can be used for brainstorming, action-planning, organizing. But dialogue is also a space for self-exploration and reflection, whose benefits stand alone. As an institution, we owe it to our students to invest in projects that build dialogue among them. In facilitated dialogue, students are, for a moment, not adversaries, but peers. Not just students, but teachers to each other. Not feeling alone in their brokenness, but in good company.

Dean Martha Minow begins each year by telling incoming students how far and wide Harvard Law School has searched to find the talent present in the student body. You were selected out of thousands of hopefuls, she says. But it is not enough to get a diversity of experience in the door. Once here, we owe our students the opportunity to grow outside of the classroom. Student connection—through dialogue and other means—should be pursued with the same fervor as their recruitment. This radical exercise in listening and learning from others might not only normalize the brokenness in each of us, but also help put us on a collective path towards healing.

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.

 

Open Letter to HLS Community

scales_of_justice

Below is a letter signed by members of the teaching community at Harvard Law School.

December 9, 2015
 
An Open Letter to the Harvard Law School Community
 
We, as faculty members, lecturers, instructors and senior staff at Harvard Law School, have been profoundly affected by the recent, salient examples of racial injustice in this country, and the wave of protests that have followed.  There is a growing awareness that such racial injustices require our urgent attention and that institutions of higher learning are among those in need of  reform. We join the call for, and offer ourselves to participate in, change now.
 
Hundreds of students and staff have called on this community more fully to recognize the long history of discrimination and the sometimes subtle forms of inequality and exclusion that still exist within Harvard Law School. Those students and staff made a series of demands last Friday that they “believe are necessary first steps to making HLS the inclusive, diverse community that we all want it to be” and to promoting the HLS mission “to educate leaders who contribute to the advancement of justice and the well-being of society.”
 
We have been inspired by their efforts, and we are grateful for the courage, intelligence, dignity, and resiliency that they have exhibited in calling for reform in our School and in our nation. We believe those students and staff should not be raising their voices alone. Moreover, we think that the time has come for our institutional conversation to shift to the task at hand: real, concrete and timely action. In signing this letter, we are taking one small step to make clear our strong support for making those investments.
 
These issues are not new. As a group of faculty and staff put it in an open letter a year ago:  “To all those involved in efforts to push for change, we will engage, individually and collectively, to challenge and dismantle the institutional and structural sources of injustice, particularly racial injustice.”  We reaffirm that commitment now.  Complacency is not an option. We are ready to work with students and staff in an immediate, concrete and informed process or assessment and reform.  The current activism presents us with an opportunity that lovers of justice cannot afford to squander.

Signed,

Sabi Ardalan
Ona Balkus
Roger Berlting
Cheryl Bratt
Esme Caramello
Stephanie Davidson
Fernando Delgado
Chris Desan
Julia Devanthery
Susan Farbstein
Stephanie Goldenhersh
Lee Goldstein
Tyler Giannini
Michael Gregory
Lani Guinier
Janet Halley
Jon Hanson
Duncan Kennedy
Eloise Lawrence
Jacob Lipton
Ken Mack
Maureen McDonagh
Toby Merrill
Lia Monahon
Dana Montalto
Deborah Popowski
Robert Proctor
Intisar Rabb
Stephanie Robinson
Ronald Sullivan
Jeannie Suk
Phil Torrey
Dehlia Umunna

Please note: there will be more signatures added over the next several days. If you want to add your name, email jlipton@law.harvard.edu