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Making Penal Bureaucrats

Now more than ever, legal education must come to grips with its role in shaping the minds of those who might help to dismantle — or strengthen — carceral institutions and practices.


The murder of George Floyd has served as the tragic vehicle for reexamining many longstanding practices and institutions — and how race should figure into it all. Law schools aren’t exempt from this reckoning, and law professors who teach what I call criminal legal education — courses such as criminal law, criminal procedure, and evidence — have been engaging in their own reevaluations. All of this makes sense. Many lawyers play a central role in creating and sustaining mass incarceration; and many will leave law school with the ability to do the opposite. The high-profile death confirmed the brutality, inequality, and, for some, irredeemability of the very things many professors teach. And criminal legal educators, some believe, need to read the room and offer instruction that better conveys the unjust realities of our legal system. Alice Ristroph, a professor at Brooklyn Law School, may have offered the most forceful of these critiques, arguing that the detachment from reality and supposed race-neutrality of criminal-law teaching produces “pro-carceral” lawyers who help sustain mass incarceration.

My own work, published and forthcoming, moves in a similar direction, but also examines the race, poverty, and gender oversights in criminal legal education more broadly. Some fellow academics will take issue with the idea that law professors have a hand in mass incarceration, to say nothing of other social ills, while others will applaud and nod in approval. Whatever side they’re on, the undeniable reality is this: Law professors have trained and will continue to educate public defenders, prosecutors, and judges. The legal education of these penal bureaucrats matters in the larger conversation around criminal justice policy and its deep, structural failings. And so the obstacles to changing legal education are really obstacles for the effort to tear down the legal edifice that made Floyd’s murder possible in the first place. As history shows, those challenges are not insignificant. To overcome them, we need a clear-eyed sense of what the precise obstacles are standing in the way to a more justice-oriented legal education. 

Simply put, we can’t afford to ignore curricular reform in this moment, as navel-gazing as such a project may seem to those outside of law school. I don’t profess to have all the answers. Instead, I hope to sketch some issues we must confront if legal educators hope to meaningfully leverage this new energy in favor of effective curricular reform. There have been various proposals and calls for action, but it seems necessary to raise questions that are sometimes muted or skipped over in the rush to reform a curriculum that has real shortcomings. The answers to these questions might lead us closer to capturing what legal historian Bob Gordon has described as “the motors of curricular change.”

Social justice is a hotly contested label. It changes over time and varies depending on one’s perspective. In its most basic formulation, the term often refers to fairness and equality principles. More fine-grained conceptions of social justice often focus on attacking issues like racial subjugation, economic inequality, sexism, and various other phobias and isms. Whether one uses these or other definitions of social justice, history demonstrates that there have been complaints about the arid, impractical, justice-deficient nature of legal education.

Writing about criminal legal education in 1932, Newman Baker, a professor at Northwestern Law School, wrote about the detachment between the classroom and the real world. “All criticize the law school course … as being out of date and as presented from the wrong point of view,” he observed. Baker also noted that many people believed that there was “little relation between the ideas usually current in the criminal law class and the living realities of actual practice.” A dozen years later, Daniel Boorstin, a legal historian at the University of Chicago, complained that the law school curriculum “has been dealt with like the heating system of the law building — a contraption to be tinkered with, modernized and improved.” Those nips and tucks, Boorstin believed, have “concealed the fact that no essential change has been made.”

Commentary on the other side of the Civil Rights Movement reveals a distressing point: In some ways, scholars are making the same pleas for racial inclusion in the curriculum for as long as schools started admitting minority students in a meaningful fashion. Consider the 1970 observations of Hayward Burns who served as counsel for the NAACP and Martin Luther King’s Poor People’s Campaign. Burns was also a founder of the National Conference of Black Lawyers and an attorney for abolitionist Angela Davis. “As increasing numbers of black, brown, red and yellow law students are admitted to the nation’s law schools,” Burns wrote, “there is bound to be greater pressure upon these institutions to deal openly and honestly with the way in which the law, as an institution, has been an instrument of the subjection of non-white peoples in this country.” Noting how minority students are not the only beneficiaries of such education, Burns argued that “white students training to be members of the bar desperately need a new kind of exposure” and observed how all law students are disadvantaged by the failure of law schools to include in their curricula work that takes into account the context in which the law functions.” 

Kimberlé Crenshaw, who has recently had to waste her precious time defending critical race theory against inane attacks, broached this issue in 1988. In 2003, Dorothy Brown put in the work to craft a casebook that addresses race in the criminal justice system (amongst other matters) that is in its third edition. These thinkers are not alone; one could create a phalanx of scholars, students, and practitioners who have insisted on a more robust curriculum. This points to a longstanding resistance to curricular reform — some of it related to ideas about the irrelevance of race, some of it simply tied to the various inputs involved in crafting a curriculum (more on this soon). The fact remains: the kind of curricular change people are grasping for is not completely new and will almost certainly be resisted again.

Still, this moment is slightly different. In the past 18 months, there has arguably been more scholarly and public attention on the pedagogy of legal education than there has been this century. The killing of Trayvon Martin and the later rise of #BlackLivesMatter in 2014 spawned panels, symposia, and meaningful conversations in criminal legal education. But the killing of George Floyd, amidst pandemic-induced Zoom law school, hit differently.

Inside the virtual/hybrid classroom, law professors, like their colleagues across different levels of education, were forced to adapt and adopt new strategies. In some instances, legal educators had to wean off their narcotic reliance on cold-calling and the Socratic method. These tactical issues generated their own set of panels, scholarship, and reassessments of legal education internally and extramurally. As a matter of substance, the visual evidence of George Floyd’s killing by a police officer — a supposed symbol of rule-of-law principles — also had meaning inside and outside of criminal legal education. This high-profile killing raised key questions about fundamental concepts in the classroom. What are the purposes of punishment and police officers? Would the court in Derek Chauvin case overlook this deadly deprivation of liberty and due process like many before them? How do we make sense of different interpretations of evidence, particularly when what happened was fairly obvious?

Somewhere between pedagogical strategy and substance was a more profound question about where discussions of race fit in legal education more generally. Treatments of race range in the law school curriculum from outright disregard to superficial acknowledgment to substantive engagement. Many instructors fall short of deep engagement with the issue, though in good faith or in hubris they may believe otherwise. Whatever their professors’ stance, law students are increasingly hip to educational shortcomings of criminal legal education and are demanding more. They are part of a generation who contributed meaningfully to the protests and uprisings last summer. They are writing op-eds. They are penning open letters. They are deploying social media. They are applying pressure on administrations to address the pathetic homogeneity of the professoriate. They are insisting that instructors incorporate social categories where relevant; they want these discussions to include not just race, but gender, class, disability, and sexual orientation and identity, to name a few. Some conservative and liberal faculty are on edge. One colleague, who categorizes themselves as someone who tackles these issues in their classes, complained to me that “the inmates have taken over.”

In any event, there are signs of change. Law schools and universities are scrambling for diversity, with some explicitly evoking George Floyd in their hiring plans, which a colleague of color has called “George Floyd cluster hires.” Law professors are self-organizing and attempting in earnest to rejigger how we teach the fundamental criminal justice courses. Importantly, some of these efforts antedate the killing of George Floyd and were spawned by abolitionists, former public interest attorneys, progressive scholars, women, and minority faculty. Yet critical questions remain. How do we make use of this momentum? What kind of teaching are we striving for? How do we ensure that this momentum doesn’t have a short shelf life and instead addresses curricular shortcomings that students have long complained about?

Professors and students can have lots of thoughts about pedagogy and what an educational experience should offer, so making normative suggestions about law teaching can be tricky. I’m always cagey about such invitations. Notwithstanding my research expertise in legal education, I’m still a relative neophyte. I haven’t put in the 10,000 hours, although I punched the clock heavily last year. Even for the most seasoned and celebrated instructors, it’s not clear that there is ever an “arrival.” Good teaching is constantly evolving. It is responsive to changes in the technological and socio-legal environment. It adapts to the idiosyncrasies of different cohorts of students (but does not fully capitulate to them).

An yet, it is possible to sketch some commonalities — some overarching features of legal education — that impact, and in many instances impede, efforts to make law teaching more just.

Take first the people involved. The disciplinary and professional background of the instructor matter. A philosopher or a prosecutor may teach criminal law differently than an economist or a former defense attorney. The demographics of the student body can be determinative. What kind of school is it? A decidedly public interest-oriented institution like CUNY? A place like Pepperdine, which is an unabashedly faith-based law school? This point about student bodies leads to another point about geography and location. Are we talking about law schools like the University of Miami or the University of Detroit, Mercy, which are in big cities and have large minority student bodies? Or is it schools that have less racial diversity because of their location? (Vernellia Randall uses the uncomfortable but technically correct term “excess whiteness over state population”). 

Describing both the professors and the students this way highlights another reality: Competence is in the eye of the beholder. For some students, instructors from underrepresented backgrounds — minority, women, LGBTQ — may be more credible authorities on issues tied to social inequality because of presumed lived experiences. For other students, professors who occupy more familiar bodies — white, cisgender, male — are seen as superior conveyors of information because they can offer the dispassionate learning that law schools notoriously value. Instructors may also have an overconfident understanding of how they treat these issues in their classes. One professor who spends a day talking about race, poverty, and gender, on their own terms, in a course that meets 25 or so times, may believe that they are doing an adequate job. The conversation about curricular change, they might think, does not apply to them. On the other end, I use a casebook written by women of color that is explicit about these categories. The topics come up frequently in my class, and I may think I’m doing enough. But in both instances, the quantitative and qualitative treatment of social justice issues may not be to students’ satisfaction.

The scope of student demand is also important. Some professors argue, somewhat plausibly, that what students want should not dictate how teachers instruct. Conceding as much would be unstable, hard to track and measure, and subject to the whims of a fairly transient population. Even if professors in criminal legal education were receptive to calls for curricular diversification, there is an assumption that there is student consensus. There is certainly a palpable demand for more robust discussions about inequality in criminal legal education. But some students don’t want that and they may not be as visible. Still, they complain to administrators, chat with other students, and challenge their instructors inside and outside the class. Scholars like Meera Deo and Gregory Parks have shown how this resistance can also surface in student evaluations and unevenly impact minority faculty, women, and women of color. The opposition can be multiracial and has no ideological boundaries, either. It may come from conservative students who genuinely believe that such discussions do not enrich their educations; liberal students who believe that such engagement is triggering; radical students who complain that the treatments are superficial; and students of all ideological backgrounds who are skeptical of their instructor’s ability to delicately orchestrate such conversations.

All of this is in an institutional context where the classroom is each professor’s little fiefdom. With the exception of untenured faculty, law professors enjoy considerable latitude in their classrooms. A dean or administration has some carrots and sticks at their disposal, but few are game changers. These professors can be fussy and persnickety about teaching, and rightfully so. Teaching comprises a substantive portion of professorial duties (the other two standard activities being research and service). As one professor observed in 1968, “I have seen law teachers, who have no peers in nitpickery, verge on purple apoplexy in debate over the curriculum. The whole academic business is fraught with vested interests, gored oxen, ground axes, pet peeves, visionary schemes, and intractable inertia.”

All this power-wielding exists in a context where there are competing ideas about the role of the professor. A mere transmitter of what the law is? A camouflaged activist who blends instruction with the inculcation of a particular set of values that makes students want to improve the criminal justice system, independent of how many people actually want to go in that line of work? An instructor whose teaching discourages students from certain kinds of work as undesirable — where progressive prosecution and indigent defense alike are “system-reifying”? 

In view of this morass of challenges, it is no wonder that urging legal instructors to talk more about racism, poverty, sexism, homophobia, and transphobia in their classrooms — even if they engage those topics already — is no stroll in the park.

Looking to the broader aim of criminal legal reform, explaining why the rest of the public should care or enter this discussion at all is tricky. Law schools can be cordoned off from their local communities. The key here is to recognize that this is a site of struggle where change-oriented people and organizations can develop allyships with like-minded students and faculty to help craft solutions to the multilayered problems of our penal system.

For students, I hope that identifying these challenges will clarify two things. The first, which is something that I’ve consistently argued, is that legal education is unlikely to provide students with the kind of social justice-oriented training that some are demanding. Self-led learning and organizing by student groups within and across law schools may have to be the second-best option. But this is not simply nudging students toward neoliberal self-help. My second hope, instead, is for students to better understand these constraints — and in the process, to get a better sense of how to organize for and demand desired changes from their institutions. Issues such as faculty composition, faculty governance, the professional pathways of graduates, and ideological variation within student bodies are some of the many issues that shape what they learn in a criminal legal education course. But these factors may not be readily apparent to students who don’t have a sense of the “backstage” of legal education. The short-term nature of legal education — three years, or two if you do not count the overbearing first year or a third year some students often check out of — demands cooperation with change-minded people outside of law schools and intentional strategies that withstand law school’s running out the clock on curricular change and hoping that the next cohort of students does not notice.

My fellow legal educators are likely to understand where I’m coming from. For those who care about this issue, my desires are also twofold. First, I hope that these reflections will spur them to honestly assess where they might fit on a rough spectrum of this kind of curricular reform: active implementer, passive supporter, or outright adversary. I have my own beliefs on the desirability of revamping criminal legal education; and yet I think there are principled justifications for each of these dispositions. Let us just be intellectually honest about where we stand. Second, I hope that we can all see that we are part of a vocation that has long professed ideas about intellectual curiosity, social justice, and equality under the law. Nevertheless, our field  has not been fully responsive to longstanding appeals to include legally relevant conversations about social inequality in our teaching. Our response to this moment will partially dictate whether our profession can march closer toward social justice-oriented legal education — one that could mold not only the next generation of penal bureaucrats but also the change agents who will engage them and help to build new decarceral futures. Or whether that curricular goal will simply result in yet another round of panels, symposia, and hashtags that merely scratch the surface.

Image: Harvard Law School