Abstract

Excerpted From: Robert Westley and Stacy Seicshnaydre, Breaking the Silence of the Wolves: An Approach to Teaching Antiracist Lawyering in the Twenty-first Century©, 23 Rutgers Race & the Law Review 211 (2021) (68 Footnotes) (Full Document)

Learning from history is an enterprise that inevitably occurs in midstream. While the fire hose of new events continuously spews forth additional facts, dates, faces and places, that constantly reshape the flow and depth of an already formidable edifice of sedimented currents, we seek knowledge of the past in order to better understand the present. One is perhaps reminded of Walter Benjamin's image of the angel of history.

In our American experience the dark undertow of racism links past with present in ways that are seldom acknowledged in part because significant aspects of our history have been deliberately distorted or even obliterated by white supremacy. A recent example of unmasking a racist distortion that attempted to obliterate history is rediscovery of the destruction of Black Wall Street as a massacre, rather than its more euphemistic historical description as a “race riot.” The Greenwood massacre, moreover, was not a singular event. Rather, it is part of a pattern of white supremacist reprisals against communities of color, as firmly entrenched as lynch law, with similar attempts at justification based on stereotype, in which the cumulative effect is to impose a system of caste subordination through violence, dispossession, and compelled silence. The silence of the victims of white supremacist terror tactics is frustrating, but understandable. By contrast, the silence of the perpetrators is much more insidious. It is a silence that is meant to last forever. This latter form of silence consciously deploys ignorance as a strategy of power to maintain white supremacy and racial hierarchy intergenerationally. Contemporary economic, social, and political subordination of Blacks and other nonwhites in the absence of historically embedded context can then be assigned to causes internal to the alleged deficiencies of those communities.

The social, political, and psychological space created by the silence of the wolves of the American past is not empty. It is replete with the debris of broken faith, false narratives, contemptible lies, and lame excuses for why no changes are needed or may ever take place. This is the troubled terrain on which the teaching of antiracism must navigate in the twenty-first century.

As a student come teacher of Critical Race Theory, one of us is accustomed to using historically based racial analysis to explain current events at both a systematic and institutional level as consistent with prior practices of racial subordination or as comparative departures from the status quo. Critical Race Theory teaches the importance of remaining alert to temporal frameworks when engaged in discussions about social and racial justice, realizing that exclusive focus on current conditions and present claims may lead to tunnel vision. Attentiveness to time may also be key to naming and identifying particular forms of inequality or injustice such as structural or institutional racism that might otherwise go unaddressed because it has been normalized. According to the tenets of Critical Race Theory, beneficiaries of structural inequality tend to normalize unequal social relations through attribution of their social advantages solely to things like merit, intelligence, or even luck, rather than multi-generational patterns of exclusion and domination. Nevertheless, we know that policies that may seem neutral or natural, like the system of inheritance or wealth accumulation through homeownership, can mask the accrual of unearned and unequal privileges. In our present period of racial backlash and white grievance politics, it is vital to distinguish between policies that seek to remedy injustice and those that seek to perpetuate injustice. Correcting injustice should never be equated with the commission of unjust acts, and here again, consciousness of how current social conditions developed over time as a result of past inequalities of power and access is helpful in distinguishing injury from compensation for injury.

Our course on Antiracist Lawyering took shape in the midst of multiple crises: a global pandemic in which unequal access to health care, housing, social services, and inequitable labor conditions were on full display; a national reckoning on race, catalyzed by repeated, widely separated acts of police and vigilante violence that led to the frequently videotaped killings of unarmed Black citizens; and a Constitutional crisis, in which uncertainty lingered over the ability of democratic institutions to withstand concerted, authoritarian assaults emanating from the executive branch of government. Closer to home, students of color at our traditionally and still predominantly white law school demanded that the administration begin to address and reform certain long-standing practices of neglect and hostility toward students of color, citing exclusions and hierarchies that were intolerable in the classroom, in the curriculum, and in extracurricular activities and opportunities available to them at the law school. Those demands led to the formation of not only an Antiracism and Diversity Task Force on which one author served as a member and the other as co-chair, but also led to the creation of a one-credit minicourse on Antiracist Lawyering which we co-taught during Fall semester 2020.

One of the decisions we made early on while formulating the specific themes to be addressed by the course was to incorporate films. Students were encouraged but not required to view the films as part of their homework for the class discussion. Most of the films were documentaries that were available for free on streaming services but required a subscription. Because we understood there might be issues of access, we encouraged our students to watch in groups over their zoom connections in order to reduce economic barriers as well to mitigate the social isolation caused by quarantine measures imposed due to the coronavirus pandemic. The watch parties were not required, but strongly encouraged by the follow up discussions that we attempted to fold at least briefly into every class. As experienced teachers we have learned that visual representations produced by third parties, and selected for presentation by the classroom teacher, especially when they include actual participants in events, can be some of the most impactful evidence for students that a perspective is authentic, and that an issue is a real concern for actual people. All the films were selected to complement and reinforce the themes we chose to highlight in each workshop.

Topics covered in the workshop series included: Protest and Movement Lawyering; Policing; Criminal Justice and Mass Incarceration; Voting Rights; Housing and Residential Segregation; Education and Residential Segregation; and Health and the Environment. For Protest and Movement Lawyering we chose to screen I Am Not Your Negro, a film about James Baldwin's struggles to define his role in the Civil Rights movement after the assassinations of both Reverend Martin Luther King, Jr. and Malcolm X. For Policing we chose to screen The Blood is at the Doorstep, a film that chronicles the killing of an unarmed Black man in Milwaukee, Wisconsin and how the police and community come to terms over his death. For Criminal Justice and Mass Incarceration we chose to screen 13 which offers constitutional and historical analysis of the racialized roots of our contemporary carceral system. For Voting Rights we chose to screen All In: The Fight for Democracy, a film that shows how the political coming of age of Stacy Abrams in her attempt to overcome partisan gerrymandering in Georgia reverberated across the nation. For Housing and Residential Segregation we chose to screen two films: A Matter of Place, which explains the historical legacies of early twentieth century housing discrimination policies, and episode 3 of the series Race: The Power of an Illusion which was titled How the Wealth Gap was Created. For the Education and Residential Segregation workshop we chose to screen episode 14 of the 2014 season of Frontline which was titled Separate and Unequal, a film that examines how a middle class white community in East Baton Rouge, Louisiana was able to use economic and political power to evade school integration in the post-Brown era. For the Health and Environmental Justice workshop we chose to screen Mossville: When Great Trees Fall, a film that focused on the personal health and environmental consequences of destroying a rural community founded by ex-slaves to make way for industrial development in Louisiana's cancer alley.

In addition to the workshop series, we also used films for the final meeting of the minicourse in which we discussed the topic of reparations and reparative justice. For this topic we asked the students to screen the presentation by Bryan Stevenson entitled True Justice: Bryan Stevenson's Fight for Equality. We also recommended his TED Talk, We Need to Talk About Injustice, as well as other short opinion pieces about how to engage in productive and effective conversations about racial justice.

Teaching students how to engage in meaningful cross-racial conversations about race and racial justice was one of the primary goals of the course. For many Americans, race remains a taboo topic that is best avoided. What we know from the example of the Greenwood massacre, and the silence that surrounds other racial atrocities in our history, is that when the lambs are silenced or ignored, the wolves among us further their scheme of innocence. Even when it is relevant to the subject matter, both teachers and students often contrive to circumvent discussions of race, sometimes from fear of saying something that may be found offensive, but also out of ignorance of how and when to incorporate race into a conversation when doing so risks personal discomfort, embarrassment or controversy. Generally speaking, law school classes encourage a default ethic of colorblindness among students, which tends to suit the majority disposition to make many more racial assumptions than racial pronouncements. One of the biggest challenges of teaching our students the value and skills of cross-racial conversations about race was the unavoidable fact that our class, reflecting the demographics of our school, was overwhelmingly white. Even if class enrollment had been more diverse, we both agreed that we should not enlist students of color as spokespersons or representatives for their race. Through random rotation of membership in small group discussions, each student was given an opportunity to be exposed to as broad a spectrum of views and opinions as possible under the circumstances. We also talked about the need to express reassurance to the students that they would not be ostracized because of their views, and we attempted to reinforce that message by including reference to the university's antidiscrimination policy in our syllabus.

Perhaps the most profound lesson on communication about race came early in the course from one of our invited speakers in the Protest and Movement Lawyering workshop. Professor William (“Bill”) Quigley of Loyola University College of Law talked about the importance for lawyers who represent indigent clients of color to listen to their clients, and to seek out the knowledge that the client may have about their situation that the lawyer may not. He emphasized that this kind of active listening by the lawyer ran contrary to professional training in which the lawyer is positioned as an expert who uses his or her knowledge to assist a nonexpert. It may also run contrary to cultural habits of some students who may assume not only that their educational background, but also their upbringing or life experience makes them a superior judge of what is best for the client. Professor Quigley's lesson on humility and active listening was ideally suited to teaching our students how to communicate across racial lines in ways that are productive, effective, and meaningful.

[. . .]

The central theme and focus of our course, what does it mean to engage in antiracist lawyering, to which we habitually returned in our conversations and discussions with one another, assumed its final form in the students' written reflections at the end of the course. Their views on this topic, as well as ours, were enriched by the presentations of our invited speakers, the reading materials that we prepared, and the films that we saw. What emerged was a range of perspectives. Some emphasized the importance of active efforts to disrupt racial hierarchies, to combat complacency, and dismantle systems of oppression. Others concentrated on the need to uplift the voices of clients and to play a supporting role within communities engaged in struggle. Some students embraced a harm reduction standard, while others understood the need to break the silence that enables harm to be ignored and perpetuated. Many valued the need as lawyers to listen to those impacted by injustice, and to respect their agency in defining both the harm and the goals of representation. We also observed a progression from thinking about racism as individual acts of intolerance to thinking about racism as institutional and systematic injustice. Thus, some were moved from thinking about antiracism as a moral bonus to thinking about it as a moral imperative. It is our hope that cultivation of the values of listening, seeing the connections, and engaging in reparative acts will open the door to greater recognition in American law schools that there is a continuing need for racial justice education in our Time.