Professor Michelle Alexander, a Critique of Mass Incarceration, and the Challenges of Teaching Social Context in Law School

Yesterday we had the pleasure of having Professor Michelle Alexander present to us at the Sturm College of Law.  (Her bio can be found here)

Prof. Alexander

She spoke to us about her book, “The New Jim Crow: Mass Incarceration in the Era of Colorblindness.”  (Available on Amazon.com)

As I understand from her presentation, the book describes the historical and current state of mass incarceration of Black men in the United States, and describes it as a persistent racial caste system that can only be overcome by a concerted social movement (as opposed to discrete policy reform).

The topic itself is self-evidently interesting and important, but in her lunchtime presentation Prof. Alexander added a layer of significance by linking her work to the way we teach (or fail to teach) social and, in particular, race awareness in law school.  She described how when she studied Criminal Law as a student, the focus was narrowly and exclusively on the facts of individual cases and an individual defendant’s guilt or innocence.  What was left outside the classroom was the context of the mass incarceration of Black men, the evolution of the phenomenon, possible reasons for the phenomenon’s existence, and its implications for the study of criminal law.  But as a practitioner and scholar, Prof. Alexander observed how mass incarceration, and the legal discrimination imposed on those in prison or with criminal records, worked to create a caste system based on race.

At this point it might be helpful to identify the distinction between “caste” and “class.” According to Merriam-Webster:

Definition of “caste”

1: one of the hereditary social classes in Hinduism that restrict the occupation of their members and their association with the members of other castes

2: a: division of society based on differences of wealth, inherited rank or privilege, profession, occupation, or race

b: the position conferred by caste standing

3: a system of rigid social stratification characterized by hereditary status, endogamy, and social barriers sanctioned by custom, law, or religion

(See http://www.merriam-webster.com/dictionary/caste.)

So the essential distinction, as I see it, is that “class” still implies a certain degree of mobility, whereas “caste” is inherited, and thus harder to shake.  Thus, the notion of a permanent “caste” status is even more fundamentally at odds with our core democratic commitments to social and economic mobility, personal freedom, and self-determination.

***

There is an abundance of important information and ideas in Prof. Alexander’s book and in her work.  But following up on the frame of her lunchtime talk, I want to ask:

What does all of this have to say about how we teach in law schools?

Prof. Alexander emphasized that the social and historical context of mass incarceration was not part of the curriculum when she was a student, and suggested that this was a serious shortcoming that should be remedied.  So what is the best—the most effective and the most fair—way to incorporate social context, and in articular race-awareness, into legal education?  (And at this point I will note how beautifully Prof. Alexander’s observations dovetail with Elizabeth Mertz’s systematic study of legal education and the purposeful exclusion of social context from the study of law.)

This question caused me to reflect on a seminar I taught last year involving a Fourth Amendment problem.  For me, likely due to my undergraduate background in critical studies, my reading of the case law interpreting and applying the Fourth Amendment is always informed by my assumption that class and racial profiling play a role in police decisions on whom to subject to searches and seizures.  But it became apparent that some students in the seminar did not share this assumption and did not see certain types of police discretion as problematic as a result.

I did not need for all of the students to share my assumption, but I wanted to make them aware of the concerns about racial disparities in police contact and how this might change our view about what rules are necessary to enforce fair treatment.  In an unusual turn of events, I was at a loss for words to convey what was to me a foundational social understanding.

One of my Latina students piped up, and talked about differential treatment and related concerns in her Denver community.  She was smart, clear and funny in her description and it was a great example of a student teaching another student and teaching me, as well.

I raised this episode to Prof. Alexander as an example of how nurturing a diverse student body was essential to bringing social context into the law school classroom.  She agreed, but also wisely (and gently) pointed out the dangers of leaving it to diverse students to educate the rest of us about diversity.

And of course this is a critical point.  We have heard (and continue to hear) law students tell of being the focus on uncomfortable and inappropriate questioning.  “How do women feel about this issue?”  “What’s the Black perspective on this?”  “Where does the Islamic community come out on this question?”  Beyond being socially awkward, these types of directed questions make a number of unfounded assumptions about the ability of any one individual to speak for their gender, race or religion.  They also imply that the individual cannot speak from the privileged, “neutral” or “invisible” position of the objective, “reasonable man.”

I think it is fantastic when diverse students voluntarily offer a perspective that is different, and we should all strive to create an atmosphere in class where students feel that they have the voice to make such contributions.

But as educators we need to look to other sources for diversity in perspectives and proactively include these sources in our syllabi.  And what we are really talking about, to again allude to some of the wisdom of Critical Race Theory, is bringing in stories from those who might not otherwise have a voice in the hallowed institutions of legal education, to cultivate awareness and empathy.  To make us better lawyers.

Serendipitously, my colleague Tom Romero dropped by my office yesterday and told me about just such an approach he was using in his first-year property class.  In addition to the traditional sources for studying the law of property, he requires students to read Robert Neuwirth’s “Shadow Cities , which details the experience of squatters in different parts of the world.  A perspective that is outside the assumptions of traditional property law and outside the experience of—I would venture to guess—most if not all of us who end up as students of the law.

This is a wonderful example of a discrete yet effective way to bring outsider stories into the mainstream law school curriculum to enrich and broaden our understanding of what exactly it means to operate within the law.

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