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Excerpted From: Bennett Capers, The Law School as a White Space, 106 Minnesota Law Review 7 (November, 2021) (277 Footnotes) (Full Document)


BennettCapersThree Beginnings

Gregory Hayes Swanson already had a law degree from Howard Law School, and was already practicing law in Martinsville, Virginia, when he applied to the law school at University of Virginia. His plan was to obtain a master's in law at UVA, which he hoped would allow him to transition into teaching law. Unfortunately, even though he was accepted to the law school, the University of Virginia Board of Visitors rejected him, writing:

The applicant is a colored man. The Constitution and the laws of the State of Virginia provide that white and colored shall not be taught in the same schools.

This was 1950. And getting a master's in law degree from another school in his home state was not an option. Simply put, there was no “colored” law school in Virginia for Swanson to attend. So he sued--his team of lawyers from the NAACP included such heavyweights as Thurgood Marshall--and won. In a way, the tailwinds were in his favor. Though “separate but equal” was still technically the law of the land, civil rights activists had been making headway by showing that most separate educational facilities were anything but equal. Just a few months earlier, the Supreme Court had issued its opinion in Sweatt v. Painter, involving the University of Texas Law School's refusal to admit Heman Marion Sweatt because he was Black. Texas had attempted to satisfy the equal part of “separate but equal” by hiring two Black lawyers to teach Sweatt, not at the University of Texas or even in Austin, Texas, but in a few rented rooms in Houston. When Sweatt's legal team pointed out the obvious inequality, Texas offered to create a law school just for Blacks, and even offered a location of three basement rooms a few blocks from University of Texas. Perhaps not surprisingly--though against the headwinds of public sentiment Supreme Court ruled in Sweatt's favor. Before Sweatt, the Court had decided Sipuel v. University of Oklahoma, a case involving the University of Oklahoma's refusal to admit Ada Lois Sipuel, a Black woman, to its law school, solely because of her race. In both Sweatt and Sipuel, the Court granted relief to the plaintiffs, though it sidestepped the issue of whether the doctrine of “separate but equal” needed revisiting.

Back in Virginia, with these tailwinds in Swanson's favor, it is perhaps not surprising that a panel of three judges ruled in his favor.

However, what interests me--me, because like Patricia Williams, I am convinced that “subject position is everything in my analysis of the law” what happened after the court issued an order compelling UVA to admit him. I'm interested in what Swanson said publicly, and what he said privately. When interviewed by The Washington Post years later, Swanson's description of his time at UVA seems politic, seems almost too measured: “[I] fully participated in classroom discussions and used all campus facilities--cafeterias, libraries;” “I attended concerts, lectures and football games but never attempted to attend any social events;” “I was ... courteously treated.” By contrast, what he divulged privately in letters to his sister seems, well, more honest. He wrote that as he walked to campus, whites would stare at him. “I should like to read their minds,” he told his sister. “Sometimes I think that I do.” He described overhearing a classmate say, “We should get that nigger out of the law school.” And then there's this from a letter to one of his friends: “I have not been able to detect any perceptible indications of hostility or bias; it is one of those things in the under-current. You can't put your finger on it, but you know it's there.”

In 2018, Lolade Siyonbola, a graduate student at Yale University, was working on a paper in the common room of her dormitory. As she later told the BBC, “I was working on it for much of the day, and I was exhausted so I thought I'd have a nap.” In other words, she did what many students do in the common room. “This is normal, you know? People sleep there all the time.” But when a white student entered the common room and saw Siyonbola sleeping there, she assumed Siyonbola was an intruder. That Siyonbola didn't belong. “[Y]ou're not supposed to be here,” the white student said. The white student also called the police. Siyonbola had heard enough about such incidents to grab her phone and begin recording, resulting in a 17-minute video that has been viewed more than a million times. In the video, it is clear that even after the police arrived and Siyonbola unlocked her dorm room door to show she lived there, the police still wanted more proof that she belonged, demanding to see her Yale ID. “You're in a Yale building and we need to make sure you belong here,” the officer can be heard saying in the recording. For Siyonbola, and for most of the viewers who saw her video, the video functioned as a different kind of proof, one that the critical race theorist Lolita Buckner Innis might call a “white witness.” For Siyonbola and these observers, the video was proof of the reason why the police were summoned and the reason Siyonbola was interrogated: “They were not sure that I should be there, because I'm a black woman at Yale. Even though I'm there with my laptop open writing a paper.” In fact, Siyonbola's experience was far from uncommon.

In terms of chronology, my own story falls between that of Swanson's and Siyonbola's. When I first walked through Columbia Law School's entrance on 116 Street, I was probably thinking the same thing the handful of other Black students were thinking. A first-generation law student, I had vaguely heard of the Socratic method, I knew I was there to learn how to “think and write like a lawyer.” I knew the first-year courses would include Torts and Property and Con Law and Crim, and that somehow those courses would prepare me to “practice law.” The goal was to emerge, three years later, fully formed, as a lawyer. And I did learn how to think and talk like a lawyer. By every measure the law school thought mattered, I even excelled. Grades. Honors. Publishing my Note in the Columbia Law Review. I mastered the “language of law,” even if in doing so I had to “unrace” myself, even if I adopted what Sandy Levinson might call a “bleached out identity.” Throughout it all, I was “courteously treated,” much like Swanson had been at UVA. And yet like Swanson, I was aware of an “undercurrent.” And like Siyonbola, I had the sense that my presence was provisional, revokable. That Black students were “interlopers, not really belonging.” In short, though I did not have the language for it at the time, I felt that I was a Black person in a white space. Some of this had to do with the portraits of white men--the former law school deans--that lined the main corridor of the law school and that hung in a few lecture rooms, portraits that stared down at me like sentinels guarding entry to knowledge and the gates of the profession. Some of this had to do too with the names that graced the classrooms and the study rooms in the library; even these names sounded white. And of course what I was learning felt white, as white as the Latin legal expressions I memorized, as white as the founding fathers, and as problematic as the term “founding fathers.” I was certainly aware that what I was learning seemed more about justifying the status quo--including the racial status quo--than disrupting it. Still, I followed the rules. Learned the language. Learned how to think like a lawyer. Though perhaps in the recesses of my mind, the line from an Adrienne Rich poem would have resonated: “[T]his is the oppressor's language, yet I need it to talk to you.” It was only in my final year that I encountered two of the giants of critical race theory--Derrick Bell, who gave a talk at Columbia and recounted his parable, “The Space Traders,” and Patricia Williams, who had just published The Alchemy of Race and Rights. It was only then I started to question everything, including what it means to think like a lawyer. It was only then I began to realize that narrative, too, could be a type of legal scholarship. Still, it would be years more before I'd hear the term “white space” and start to see my time at law school more clearly.

It may seem strange to begin a law review essay with these three stories--Swanson's, Siyonbola's, and mine. But if I may channel the novelist Ralph Ellison, “[b]ear with me.” For me, these three stories are all connected and support an argument I want to make. That argument, for starters, is this: Since their emergence in the 1850s as the dominant means of legal education, law schools have been “white spaces.” And in this moment when the country is undergoing a racial reckoning, when law schools have pledged to look inward and become anti-racist and truly inclusive, it makes sense to begin with acknowledging how law schools continue to function as white spaces.

To make my argument, I begin in Part One by elaborating on the concept of white space as staked out by the sociologist Elijah Anderson and others, adding to it the work of critical race theory scholars on identity performance. In Part Two, I apply the term to law schools and make the argument that for many students of color, law schools are de facto white spaces where students of color, especially Black students, “are typically absent, not expected, or marginalized when present.” On one level, the numbers are the argument. There is a reason why just a few years ago, The Washington Post ran a headline describing law as “the least diverse profession in the nation.” But Part Two goes beyond the numbers to identify other aspects of law schools--even law schools at historically Black colleges and universities--that render them white spaces, from what is taught, to how the law is taught, even to their architecture.

The end goal of this Essay, however, is not solely to describe law schools as white spaces or to identify where law schools fall short. Nor is the goal simply to challenge law schools to do better. Given that this country is slated to tip from being majority white to majority minority in the year 2044, it should already be taken as a given that law schools must step up. Must do better. Must, at a minimum, get their own houses in order. The end goal of this Essay is at once more ambitious and more simple. It is to check, and even disturb, the very foundations on which most law schools are built. It is to reexamine the walls, and the insulation, that allow some students to thrive while keeping others out. It is to test the air filtration system to make sure it has not become stagnant with time. It is to see where repairs are possible, while recognizing what may be necessary are sledgehammers, wrecking balls, and new tools. An entire demolition. The end goal of this Essay is to dare law schools--to dare all of us--to imagine a new construction, an entirely new law school. In short, the end goal of this Essay is to imagine the law school no longer as a white space (in terms of demographics, or what is taught, or how it is taught), but as a white space (as in a blank page, at once empty and full of possibilities). What would it mean to rethink, from the bottom up, what is taught, how it is taught, and to what end? More broadly, what would it mean to create a law school that is cosmopolitan and then some, a place where intellectual curiosity thrives, where change and challenge are celebrated, where education itself is a practice of freedom, and perhaps most importantly, where there is no need to tout inclusivity, because everyone already belongs? These are the questions taken up in Part Three of this Essay.

[. . .]

It has now become common, almost de rigueur, for law schools to commit themselves to being anti-racist and truly inclusive. Indeed, it has become so expected that it may even seem like virtue signaling, “sound and fury, signifying nothing.” I hope not. I hope law schools are sincere.

But my larger hope is that law schools will do more than simply proclaim a goal of anti-racism, or commit to admitting a more diverse student body or hiring more diverse faculty, or commit to incorporating race in their curricula. Even with these changes, law schools will still function as white spaces in terms of what is taught and how it is taught and even in terms of their architecture. My hope is that law schools will have the courage and audacity to reimagine themselves as a different kind of white space--a blank page, a tabula rasa--and to untether themselves from so much that weighs them down. That they will reinvent themselves from the bottom up in a way that is cosmopolitan and then some, as a place where intellectual curiosity thrives, where change and challenge are celebrated, where education itself is a practice of freedom, and where there is no need to tout inclusivity, because everyone already belongs. I have limned out my own vision of what such a school might look like, but it need not be the only vision.

There is one final thing to say, something that has run just below the surface of this Essay, but that I have not mentioned explicitly. The focus of this Essay has been law schools, but here is the truth: It is not only law schools that too often function as white spaces, but the law itself. Both the law and the law school are “bound to the same whiteness,” if I may repurpose a line from Jennings. We live in a world built on racialized hierarchies and inequality, and much of the reason we live in such a world is because of what we call the law, from Slave Codes to the enshrinement of slavery in the Constitution to the doctrine of manifest destiny to anti-miscegenation laws to the Chinese Exclusion Act to zoning rules to qualified immunity to racialized highway construction to so much more. It is the law, after all, that has contributed to why, even now, we are segregated in where we live and where we go to school and whom we love. Quite simply, law is haunted by race, even when it doesn't realize it. Allow me to go a step further. Much of our comfort with inequality generally--in terms of gender, class, wellbeing--is buttressed by our history of comfort with racial inequality.

All of this is to say it is not just law schools that need to be reimagined from the ground up, but law itself. So this is my true hope: That reimagining law schools is just the first step. The beginning to reimagining the law itself, and forging the law into new tools never before seen. Tools of empowerment and equality like the poet Audre Lorde started to imagine. Maybe even like tools fashioned from the vibranium of Black Panther' s Wakanda. Tools to finally “make America what America must become,” if I can channel James Baldwin again. That is the real goal.

Professor of Law and Director of the Center on Race, Law, and Justice, Fordham Law School.

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