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Excerpted from: Teri A. McMurtry-Chubb, The Practical Implications of Unexamined Assumptions: Disrupting Flawed Legal Arguments to Advance the Cause of Justice, 58 Washburn Law Journal 531 (Summer, 2019) (178 Footnotes) (Full Document)

TeriMcMurtryChubbAt a point early in the first semester of my first year of law school, the entire 1L class gathered together for the last session of our mandatory legal reasoning course. We were a class of slightly more than 100 students with approximately 30 students of color, the majority of whom were African American. As per usual, most of us were seated in close proximity to one another. There was safety and security in our numbers, and we had tacitly and explicitly agreed to be vigilant for the inevitable racist comments that our White classmates had been making since orientation week. I recall the events of the day, a chain reaction of actions that unfolded like a piece of origami revealing creases and cracks in what had previously appeared to be a functional and cohesive law school educational experience. One of my African American classmates, “Charles,” raised his hand to address publicly the private comments of a group of mumbling 1Ls, all of them White and in close proximity to him. Apparently, these mumblers wondered aloud, at low volume, about Charles' abilities to sit in the same room as them, in a seat they believed he had stolen from a more deserving White candidate.

In an act of bravery and hubris that only a brand new 1L could have mustered, Charles demonstrated that the key learning outcomes of our legal reasoning course had not been lost on him. He pointed out that all of us had gained admission to a public, land-grant university in a state where the majority of the residents were White. The institution was required by state law to admit 70% of its residents to the law school, leaving the remaining 30% of admissions slots for more competitive out-of-state candidates. Through a series of incisive points that shredded our classmates' unexamined assumptions, Charles built the argument that the 30 students of color in a class of slightly more than 100 had competed for admission in a more competitive pool than their in-state White counterparts. He continued in his reasoning that the White students, not the students of color, occupied seats that they did not quite deserve. As Charles concluded his remarks, the room fell silent and the professor dismissed us early. Our class would go on, like every other law school class, to grow together, fight together, and construct our professional identities in an environment where our right to occupy any of the seats available to us remained contested, in-flux, and constantly shifting. When I have encountered my White classmates elsewhere in the world, now established lawyers and academics, I have noticed their startled glances at my occupying seats next to them at national conferences, CLEs, and on hiring committees. I have experienced the uncomfortable laughter, the looks of incredulity tinged with bitterness that seem to ask how I graduated, how I got to where they are, and whether my presence in some way diminishes their accomplishments and makes mine meaningless.

This Article is an interrogation of the ongoing journey to belonging while simultaneously critiquing what it means to belong. It uses the law school classroom as a laboratory to study students' relationship with difference in their lived experience as law students, and in the professionalization and instructional experiences that train them to become practicing attorneys. The research detailed in this work considers the link between the unexamined assumptions students bring with them to law school about race, class, gender, and sexuality, and the flawed legal arguments students make based on those assumptions. Through an empirical study of students' motion and appellate briefs on issues involving affirmative action in law school admissions submitted in a required legal writing course, this work seeks to reveal how legal education both prepares and fails to prepare students to represent diverse client groups in a manner that helps rather than harms. In doing so, it engages radical, critical pedagogies to: (1) reflect the inequities in the societal and educational environments that law students encounter; and (2) to dismantle the law school classroom as an incubator for professional practices that subvert the cause of justice.

[. . .]

In sum, rarely have law schools mapped and studied their curricula to assess how it perpetuates inequities and reinforces hierarchies. This and more are required to address the law and lawyers' inability to fully serve racially and ethnically diverse client groups. As this study teaches us, legal educators and employers cannot take for granted that students leave law school with the skills to advocate effectively for historically marginalized, underrepresented groups, even as they matriculate successfully through law school. A heart for justice is not sufficient to do justice. Rather, law schools must actively develop interventions in their core curricula that directly and explicitly engage students around issues of power and privilege. Until then, students will not act with agency to transform law practice and its societal impact in ways that challenge their unexamined assumptions and allow them to make arguments in the service of justice. 

Professor of Law, Mercer University Walter F. George School of Law.