Indiana Law Review


Separating Support from Betrayal: Examining
THE Intersections of Racialized Legal Pedagogy,

Academic Support, and Subordination

Chris K. Iijima*

Ifwe have learned anything at all, it has to be that power andpolitics
are not separate or differentfrom teaching. They are at the heart ofit.

'

Prologue

When I was a beginning instructor in the New York University School of
Law's Lawyering Program, its renowned Director, Professor Anthony

Amsterdam, periodically gave teaching workshops to the entire Lawyering
faculty. In one of the first workshops, as I was still struggling to decipher the

volume of materials I was expected to digest (the detailed outlines of the
exercises, the requirements of the various assignments, the comprehensive

teaching notes, and the intricacies of the NYU personnel forms), he said
something almost as an aside that nevertheless struck me as a revelation (Tony

Assistant Professor of Law and Director of the Pre-Admission Program, William S.
Richardson School ofLaw, University ofHawai'i-Manoa. I would like to thank the students in my
spring 1998 Critical Race Theory course at Western New England College School of Law who
gave me permission to use their reflection papers in this piece, my students in my Second Year
Seminar class at the William S. Richardson School of Law, and my students who are with me in
the Pre-Admission Program—all of whom allowed me the opportunity to talk about and explore
issues that too often get paid little or no attention in law school, and from whom I learned a great
deal.

Also, thanks go to my colleagues at the William S. Richardson School ofLaw who have been
so warm and welcoming to me and my family, particularly Professors Eric Yamamoto, Casey
Jarman, Calvin Pang, Mark Levin, and Danielle Hart (now a professor at Southwestern University

School ofLaw) whose suggestions for this piece as well as for my work in general, encouragement,
and inspiration have been a source of so much support. Thanks also goes to Ms. Frieda Honda who
has provided me with invaluable secretarial help, wisdom about what to do and what not to do
around the law school and around the island, and absolutely priceless information about where the

"ono" food is on O'ahu and the Big Island.

Finally, I want to acknowledge someone with whom I have never spoken, never corresponded,
and never met—the late Professor Judy Weightman, the Director ofthe Pre-Admission Program at
the William S. Richardson School of Law from 1988 until her untimely death in 1998. Professor
Weightman left a rich legacy for me and the rest of the Pre-Admission students with her societal
vision and always compassionate approach to the issues that face legal education. Because she was

so busy with many important projects both inside and outside of the law school, she never
systematically recorded her approach to the Pre-Admission Program. However, parts ofher vision

were recorded on various pieces of paper found in her office and files, and most importantly, the

results of her vision are found in the lives, successes, and memories of the many Pre-Admission
students and alumni who had the great fortune of studying with her. The Pre-Admission Program
and the law school miss her greatly, and her work at the law school has provided the inspiration for
this piece.

1 . Louise Harmon & Deborah Post, Cultivating Intelligence: Power, Law, and
THE Politics of Teaching 202 (1996).



738 INDIANA LAW REVIEW [Vol. 33:737

used to refer to these epiphanies as "the shock of recognition"). As he was
explaining the pedagogic focus ofthe first fall writing assignment, he contended

that ideally no case should be taught to a student without the student first asking

him or herselfthe question, "Who am I?" He asserted that it was only from the
perspective ofthe lawyer's context—i.e., the particular interest ofthe client, the
stage of the litigation, the jurisdiction of the court, etc.—^that a student could
appreciate the real meaning of the authority. It dawned on me then, that I had
certainly never learned the "who" of legal analysis in my first critical year oflaw
school when I was supposed to learn how to "think like a lawyer."

Later, after I had left the NYU Lawyering Program to teach at Western New
England College School ofLaw, I was given the opportunity to teach a course on
Critical Race Theory. I asked my students periodically to write "reflection
papers"—essays expressing their personal thoughts about what we had been
discussing or reading in the previous class.^ One ofmy students wrote in her first
paper:

When I told my favorite undergraduate professor that I intended to
pursue a law degree, I could not understand the look of concern that

clouded his expression. During [Critical Race] class on Friday, I finally

realized his concern. Professor Engel was concerned that I would lose
my spark and would quietly accept every "neutral, legally correct"
principle that passed my way. He did not believe that ... law school
would hone my analytic abilities so that I could continue to challenge;
he assumed that I would get lost in the "neutral" principles.

Professor Engel was one ofmy favorite political science professors
because he always challenged viewpoints This necessarily involved

delving into where we obtain our beliefs and values and why we hold
them dear.

:ti :¥ * *

Ultimately, Professor Engel taught me a great deal about myself. In
the end, I realized the personal is political. Law is not immune to this
fact. The law is what the majority (in every sense ofthe word) says it is,
and it carries with it the assumptions of the majority. Thanks to

Professor Engel, however, I am usually able to see the assumptions
behind the so-called neutral principles. Many times during the first year
I found myself questioning the reasoning ofthe opinions I read. Yes, I

admit that I acquiesced to these principles in order to do well on exams.

2. This was an assignment to which I had been introduced by Professor Paulette Caldwell

who graciously allowed me to audit her class at New York University School of Law when 1 was
an instructor in the Lawyering Program there. Although Professor CaldwelPs class was the first

time I had experienced the technique, the methodology has been first attributed to others such as

Professors Patricia Cain, Derrick Bell, and Charles Lawrence. See Frances Ansley, Starting with

the Students: Lessonsfrom Popular Education, 4 S. Cal. Rev. L. & WOMEN'S STUD. 7, 19 n.26
(1994).



2000] SEPARATING SUPPORT FROM BETRAYAL 739

but I have not lost my ability to question the assumptions from which
they flow. I enrolled in Critical Race Theory hoping that I would finally
be in a class where these assumptions could and would be challenged.
Our first class left me with this thought, "I can't wait to tell Professor
Engel."

INTRODUCTION

Professor Mari Matsuda once observed that it was the mediocre law students
who tried to make law co-extensive with reality, and it was the law students who
were able to detach themselves and see it "as a system that makes sense only
from a particular viewpoint," that excelled.^ It follows, then, that in order for

students to observe from a particular vantage point, they must first acknowledge

and value where they are presently standing. Thus, as I mature as a law teacher,
engaged in my own existential, personal, and professional searches for who I am,
part of that journey has also become a search in the pedagogy ofmy profession
for some indication that we collectively are concerned about where each of our
student's "who" is.^

The need for recognizing the importance ofteaching within a larger societal
and professional context is multileveled. It is an analytic and methodological

concern (Tony Amsterdam's reference to the advocate's context). Further,
perhaps more importantly, we have a responsibility to teach legal analysis with
reference to the larger societal context. That is, we should try to give students
a better understanding ofwhat law is, and whose interests and what values it may
serve. Ifwe would put what we teach in a better context, we would teach better.
If we could teach better, we could ultimately train more competent and
compassionate lawyers.^

3. Mari J. Matsuda, When the First Quail Calls: Multiple Consciousness as

Jurisprudential Method, 14 WOMEN'S Rts. L. Rep. 297, 299 (1992). Law school promotes an

internalization of "detached cynicism" as a value in which legal issues are depersonalized and

detached from questions ofjustice. Catharine Pierce Wells, American Association ofLaw Schools

Symposium: Bringing Values and Perspectives Back into the Law School Classroom: Practical

Ideasfor Teachers, 4 S. Cal Rev. L. & WOMEN'S STUD. 1, 2 (1994) (quoting Robert Granfield,
Constructing Professional Boundaries in Law School: Reactions ofStudents andImplicationsfor

Teachers, S. Cal. Rev. L. & WOMEN'S STUD. 53, 68-69 (1994)). On the other hand, "who we are
and what we care about is inextricably intertwined with where we come from, what we know and
how we are educated." Id. at 6. The experience of legal education is too often "disheartening and

disempowering," and the beliefthat lawyers can lead lives that are "socially useful and personally

fulfilling" too often gets lost while acquiring a law school education. Id.

4. "Between law teacher and law student there is a silent conspiracy to preserve . . . 'the

taboo against knowing who you are.'" Paul N. Savoy, Toward a New Politics ofLegal Education,
79 Yale L. J. 444, 456 (1970) (quoting ALAN Watts, The Book (1967)).

5. This is not only a question for American legal educators. As Professor Mark Levin

observes in his essay discussing legal education in Japan, the responsibility of all educators is to

"consider our students' ftitures" and assess what "knowledge skills, and abilities" they must have



740 INDIANA LAW REVIEW [Vol. 33:737

Moreover, for those engaged in providing academic support for those

students "at risk," traditional law school pedagogy, particularly as it manifests
in most first year curricula, presents an educational and professional dilemma.
The mission to help students excel in the narrow confines of law school may be
fundamentally at odds with helping students truly understand and appreciate their

potential as students of the law, as future lawyers, as members of their
communities ofcolor, and ultimately as citizens ofthe nation and world. Indeed,

if the goal of legal academic support programs is simply to "retool" students so

that they "fit" within the confines ofwhat traditional legal academia deems to be
important and valid, it may exacerbate the very exclusion that many people of
color and other marginalized groups feel from law school and the law itself.^

It is critical to emphasize at the outset that I do not equate the populations of

the academically "at risk" with law students of color or any other subordinated

population, or that each individual student of color reacts to law school in the

same way that all others do. Indeed, part ofthe problem for many law students
of color is the stereotype that confronts them about their lack of "belonging" in

both the academic as well as the social setting oflaw school. Rather, my purpose
is to explore how legal academic support programs ("ASPs") might help address
the pedagogical premises and problems that affect all students—male and female,
white and nonwhite, straight and gay—such that the disadvantages under which

to not only become professionally competent, but also to "help . . . society blossom as we move in

and through the twenty-first century." Mark Levin, Legal Education/or the Next Generation: Ideas

from America, Hokkaido University Faculty ofLaw 50th Anniversary Essay Compendium (March

1999) (English translation on file with the author) at 17.

6. Sarah Bergeretal.,//e>'.'^/^ere'JIaf^/e5//ere.^^^ 73 N.Y.U.L. Rev. 1022, 1029(1998).

The authors describe the phenomenon of"Quantitative Diversity" in which "inclusion is meant to

be quantitative only; diversification is imagined as occurring without making a qualitative

difference in the newly diversified whole." Id. at 1028 (emphasis added). The authors continue:

In a setting in which Quantitative Diversity holds sway, people typically begin to

recognize cultural difference—often as a result of tension or conflict. When this
happens, majority group members in positions ofauthority cite difference as a cause for

concern, and respond with efforts to "retool" newcomers so that they can be assimilated

or "fit in." The aim is to make Quantitative Diversity work smoothly and comfortably.

The newly admitted group is the object of the retooling effort. Its members are seen as

either assimilating to majority norms or resisting dominant ethos.

Id. at 1029.

Professor Kathryn Stanchi observes that while "outsiders" (i.e., she defines as "those

traditionally excluded from the creation and practice of law") can certainly succeed in the field of

law and become fluent in its language, "to do so, they must assimilate." Kathryn M. Stanchi,

Resistance Is Futile: How Legal Writing Pedagogy Contributes to the Law 's Marginalization of
Outsider Voices, 103 DiCK. L. Rev. 7, 9 n.l4, 21 n.83 (1998). For example, she notes that in a

study of Temple University Law School students, after the first year women law students tended

to "suppress their relational orientation and engage much more frequently in hierarchical, rights-

based reasoning." Id. (citing Sandra Janoff, The Influence ofLegalEducation on MoralReasoning,

76 Minn. L. Rev. 193, 238 (1991)).



2000] SEPARATING SUPPORT FROM BETRAYAL 74

1

some in the law school population work might be better understood and resolved.
Moreover, I also want to make absolutely clear that I have known and continue
to know many colleagues who teach brilliantly and humanely within the
traditional style and canon, and from whom I have learned much about the law
and about teaching. I do not advocate here discarding anything except the narrow

views that (1) there is only one way to teach or understand law, and that (2) our
society's dominant perspectives are privileged over others.

This Article will contend that it is the responsibility of ASPs and its
professionals to do more than solely work with students to improve academic
performance within the traditional parameters of law school education, or even

to work as advocates to change how law is taught. The responsibility of ASPs
is also, and most importantly, to be self-conscious critics of the normalized

presumptions and biases that underlie much of the way law is taught and of the
law itself.^ In essence, the task of ASPs is to engage in an exploration and
exposition about how the ideological and political intersect and influence the
pedagogical. It is through this kind of project that the students whom we serve
will be given both the tools to understand and excel within "the system," and to

enable them to question and change the legal system itselfwhich has historically

helped subordinate and devalue the communities and people from which they

come.* By engaging in this critical project, the ironic result will be that students'
performance within the traditional pedagogy will be enhanced because they will

have a clearer perspective about how to approach the material and clearer
expectations and thus, be more engaged. Ofcourse, this approach proceeds from
the threshold understanding and beliefthat there are students who "are gripping
the table in pain, as the racism, sexism, and homophobia of our world resonates
through the classrooms in which they are trying to leam"^—and more

7. 1 do not advocate this without a realization that those taking such positions within law

academia may be exposed to some risk because ASPs and those who work in them are often

marginalized or treated as afterthoughts in most law schools. See Kathy L. Cerminara,

Remembering Arthur: Some Suggestions for Law School Academic Support Programs, 2 1 T.

Marshall L. Rev. 249, 250 (1996) (noting how ASPs are marginalized). However, failure to

address, at least in some way, what I believe are the larger issues confronting many ofour students

may elevate professional self-preservation over our professional duty.

8. Natsu Saito Jenga, Finding Our Voices, Teaching Our Truth: Reflections on Legal

Pedagogy and Asian American Identity, 3 ASIAN Pac. Am. L. J. 8 1 ( 1 995):

Since the beginning moments ofour nation, racism has been interwoven into our history

and our institutions. This means that racism will not be eliminated without fundamental

social restructuring and, conversely, that fundamental social change will not occur

unless racism is addressed. The legal system is simultaneously an institution permeated

by this racial stratification, a critical part of its perpetuation, and an avenue for social

reconstruction. In teaching law, we do not simply convey a roadmap of the legal

system; by training those who will be the system, we participate in and shape it as well.

Id, at 82-83 (footnotes omitted).

9. Stephanie M. Wildman, Privilege and Liberalism in Legal Education: Teaching and

Learning in a Diverse Environment, 10 BERKELEY WOMEN'S L.J. 88, 97 (1995). In an effective



742 INDIANA LAW REVIEW [Vol. 33:737

importantly, that we value them.
Part I will review the range of criticisms leveled at traditional legal

education. I will focus primarily on those critiques that explore how the lack of
a contextualized analysis ofthe law, the normalized assumptions inherent in the

teaching ofthe law, and the social and political environment within law schools

affect the academic performance of students of color and women. Part II will
examine the evolving scholarship related to academic support for indications of
whether ASPs in law schools reflect and/or address these concerns. In Part III,
I will conclude with a few modest proposals about how ASPs could confront the
issue of how traditional legal pedagogy contributes to the marginalization of
certain law student populations without sacrificing—^but rather enhancing—the
success of our students within the confines of the traditional curriculum.

I. The Basic Critiques of Traditional Legal Pedagogy

The traditional first year law curriculum has remained unchanged for
decades. One commentator has characterized the core curriculum as standing
"astoundingly unchanged and unexamined."'^ It is essentially an exploration of

piece, Brian Owsley wrote about his experiences as an African-American law student at Columbia

University School ofLaw. See Brian Owsley, Black Ivy: An African-American Perspective on Law

School, 28 COLUM. Hum. Rts. L. Rev. 501 (1997). He recounts that he and most of his fellow

African American classmates, "never felt as if it was our law school":

We were made to feel as interlopers in this precious experience who should be eternally
grateful. Despite our credentials and academic records, some students still viewed us

as thieves stealing a more qualified and talented white student's rightful place. These

views became apparent through passing comments and classroom discussions.

/^. at 515.

1 0. Frances Lee Ansley, Race andthe Core Curriculum in LegalEducation, 79 Cal. L. Rev.

1511, 1 5 1 5 ( 1 99 1 ). Professor Ansley observes:

[LJegal education appears to have been isolated from trends in the rest of the academy

in that the core curriculum remains unchanged in all its monumental splendor, its feet

firmly planted in the first year curriculum. Despite profound changes in constitutional,

statutory, and common law, staggering centralization and elaboration of the state and
economy, the development of a new demographic profile in our student body and

faculty, and radical alterations in the nature and practice of American lawyering, the

basic core curriculum endures.

* « * *

[L]egal education is startling in its preservationism. Though occasional serious attempts

to restructure law school requirements have been mounted in the past and although

some provocative and interesting alternatives are presently being tried, the central

courses have continued with remarkable similarity and remarkably little serious

challenge.

/c/. at 1 5 1 5 - 1 6 (foomotes omitted).

For a brief overview of the scholarship that critiques traditional legal pedagogy, see Paula

Lustbader, Construction Sites, Building Types, and Bridging Gaps: A Cognitive Theory ofthe



2000] SEPARATING SUPPORT FROM BETRAYAL 743

some or all of the following subjects in large survey courses: civil procedure,
contracts, torts, criminal law, and property." It is usually taught in the so-called

"Socratic dialogue style" which has come to mean law professors calling upon
individual students to articulate some aspect ofan appellate opinion assigned for
the day's class. As the student discusses the case, the law professor gently, or
not so gently, guides them through specific issues and analyses within the

opinion that illuminate an aspect ofapplicable substantive legal doctrine. *^ There

is generally no individualized feedback except at the end ofthe semester or year

in which one final exam determines the students' final grade for the course.'^ It

Learning Progression ofLaw Students, 33 WlLLAMETFE L. REV. 3 1 5, 3 1 5-22 ( 1 997). Lustbader

lists factors that may contribute to a student's difficulties in law school such as isolation, alienation,

cultural barriers, lack of gender and racial diversity, and a lack of concern for students' learning

processes. See id. While she makes incisive points about how academic support teachers must

critique traditional legal pedagogy (see infra notes 1 59-61 and accompanying text), the bulk ofthis

particular article discusses the "Learning Progression: a cognitive theory that explains the

evolutionary learning process of law students" and its use as a tool in working with law students,

/c/. at 321.

1 1

.

See Mary Brigid McManamon, The History ofthe Civil Procedure Course: A Study in

Evolving Pedagogy, 30 ARIZ. ST. L.J. 397, 399 (1998) (observing that the basic first year

curriculum—civil procedure, torts, criminal law, contracts and property has been virtually
unchanged since it was "heralded as Harvard's new curriculum—in 1938").

12. The traditional law school pedagogical model is from the approach pioneered by

Christopher Columbus Langdell at Harvard Law School in the 1 870s. See, e.g. , Albert J. Harno,

Legal Education intheUnited States 53-60 ( 1 953); see also David S. Clark, Tracing the Roots

ofAmerican Legal Education, 5 1 Rabels ZEITSCHRIFT 313(1 987), reprinted in 1 THEHISTORY OF

Legal Education in the United States 495, 501 (Steve Sheppard ed. 1999). The Langdellian

model consists generally of the case method (a concentration on the reading and analysis of case

law), the so-called "Socratic" teaching style, and an end ofthe semester final exam. Cathaleen A.

Roach, A River Runs Through It: Tapping into the Informational Stream to Move Studentsfrom

Isolation toAutonomy, 36 ARIZ. L. REV. 667, 670 ( 1 994); see also Ann L. lijima. Lessons Learned:

Legal Education and Law Student Dysfunction, 48 J. LEGAL Educ. 524, 528 (1998) (noting that

in the first year curriculum, "Socratic dialogue dominates law teaching methodology" (quoting

Steven I. Friedland, How We Teach: A Survey ofTeaching Techniques in American Law Schools,
20 Seattle U. L. Rev. 1, 28 (1996))); Steve Sheppard, An Introductory History ofLaw in the

Lecture Hall, 82 lOWA L. Rev. 547 (1997), reprinted in 1 THE HISTORY OF LEGAL EDUCATION IN

THE United States, supra, at 7, 37 (stating that the casebook and the Socratic dialogue "are

overwhelmingly the most popular devices" used in modem American law schools).

Professor Paul Savoy describes the Socratic method utilized today in law school classes as

essentially a "set ofgames." He describes them as: "Comer" (the professor drives the student into

an intellectual comer); "One Up" (the professor is always able to "win" the "dialogue" by evasion

or changing contexts); "The Chamber of Horror Gambit" (reducing the student's argument to an

absurd conclusion). Savoy, supra note 4, at 457-60.

13. In a tongue-in-cheek essay on the law school experience, Professor James D. Gordon,

III, described the law school exam as follows:

Studies have shown that the best way to learn is to have frequent exams on small



744 INDIANA LAW REVIEW [Vol. 33:737

is these first year grades that will have a disproportionately powerful impact on

the students' eventual law careers for they will determine in profound ways the

success of a student's law school career.**

A. The Critique ofInadequacy

The immense importance of these grades would be justified if there was
assurance that they reflected the acquisition ofskills and values that were needed

for the successful practice of law.'^ However, legal academia, as well as the

practicing bar, has become increasingly uncomfortable about the fact that a
student's successful performance within the traditional curriculum may not be a
true marker for his or her legal competence or even preparation for professional

success in the world outside of law school.'^ So profound was the general sense

in the legal community that there was a disjunction between law practice and
legal education that in 1989, the American Bar Association formed a task force

composed oflegal educators, practitioners, and members ofthejudiciary to study
the state of legal education and to recommend improvements.*^

However, the American Bar Association was certainly not the first to raise
concerns about the state of legal education. Indeed, the Legal Realists of the

1930s—^Jerome Frank, Karl Llewellyn, Leon Green—^attacked "the heart ofthe
Langdellian assumption that the case method was both practical and in the

amounts ofmaterial and to receive lots offeedback from the teacher. Consequently, law

school does none of this. Anyone can learn under ideal conditions; law school is

supposed to be an intellectual challenge. Therefore, law professors give only one exam,

the FINAL EXAM OF THE LIVING DEAD, and they give absolutely no feedback
before then.

James D. Gordon, III, How Not to Succeed in Law School, 100 YALE L.J. 1679, 1692 (1991).
1 4. See Lani Guinier et al.. Becoming Gentlemen: Women 's Experiences at One Ivy League

Law School, 143 U. PA. L, REV. 1, 89 n.243 (1994) (observing that law school examinations and

grades determine major law school credentials such as dean's list, law review, honor fraternities,

enrollment in specialized programs or classes, prestigious clerkships, and offers from elite firms

(citing Steve H. Nickles, Examining and Grading in American Law Schools, 30 ARK. L. REV. 411,

411-12(1977))).

1 5

.

See Deborah L. Rhode, Missing Questions: FeministPerspectives On Legal Education,
45 Stan. L. Rev. 1547, 1557 (1993) (noting that grading practices are calculated to rank students

rather than instruct them). Moreover, law schools do not test what they teach. Roach, supra note

1 2, at 669. Professor Roach observed that often professors teach by the case method, but test by

the problem method. See id. at 673.

16. See, e.g.. Savoy, supra note 4, at 446 (describing the "unforgivable irrelevance of my
legal education to what was happening in my head, in the courtroom, and in the streets of our
cities").

1 7. TheTask ForceonLaw Schoolsandthe Profession: Narrowingthe Gap, Legal
EducationandProfessionalDevelopment—AnEducationalContinuum ( 1 992) (commonly
known as the "MacCrate Report" after the task force's chairperson, Robert MacCrate, Esq.).



2000] SEPARATING SUPPORT FROM BETRAYAL 745

intellectual tradition of German scientism."'*
Contemporary critiques of legal education have been made from a number

of different perspectives. Some commentators assert that the traditional law
school curriculum does not address adequately or comprehensively the range of

legal practice.'^ Indeed, they contend that the study ofprivate law is emphasized

to the exclusion ofother areas of law.^° Others have expressed concern with the

lack oflawyering context in traditional legal education. As one commentator has
articulated it:

What law schools actually concentrate on teaching for three years is,
first, how to analyze legal doctrine by defining, contrasting, and
systematizing the rules from appellate opinions and, second, how to
construct policy arguments for opposing sides of cases. . . . Rather than

enabling students to exercise these analytical skills in ways that replicate

how lawyers actually use them in practice, they are generally taught as
abstract casebook exercises devoid of any contextual reality.^^

1 8. Robert Stevens, Law School, Legal Education in America from the 1 850s to
THE 1980s 1 56 (1983). Stevens also states:

The major contribution of the Realist movement was to kill the Langdellian notion of

law as an exact science, based upon the objectivity of black-letter rules. When it

became acceptable to write about the law as it actually operated, legal rules could no

longer be assumed to be value-free. This change inevitably caused the predictive value

ofdoctrine to be seriously questioned. The vantage point ofAmerican legal scholarship

was finally established as being process rather than substance.

Id.

19. See, e.g.y Bob Gordon et a!.. Legal Education Then and Now: Changing Patterns in

Legal Training and the Relationship ofLaw Schools to the WorldAround Them, 47 AM. U. L. Rev.

747(1998).

Put bluntly, at best, the contemporary law school looks at a ridiculously narrow

range of legal practice, and even within that range presents almost no explicit theory

about how those practices are accomplished. It acts as if law were a normative

discipline that could be understood best from an internal perspective.

Id. at 755 (remarks of Professor John Henry Schlegel).

Of course, the Realists had similar criticisms decades before. Jerome Frank called upon law

schools to become more practical and "repudiate the false dogmas of Langdell.*' Stevens, supra

note 18, at 156-57 (quoting Jerome Frank).

20. See, e.g., Gordon et al., supra note 19, at 758 ("[TJhere's a kind ofmagnetic north that

the needle keeps swinging back to; that is, of all the things that we could be teaching in legal

education, why is it that so uniformly and continuously throughout the country, the curriculum

centers so heavily ... on the teaching of private law doctrine?") (remarks of Professor Robert

Gordon). ^

21. John S. Elson, Why and How the Practicing Bar Must Rescue American Legal
Educationfrom the Misguided Priorities ofAmerican Legal Academia, 64 TENN. L. Rev. 1 135,

1 136 (1997). Even law schools' priority on legal scholarship is misplaced because the social utility

of "normative" legal scholarship ("scholarship that prescribes courses of action to resolve



746 INDIANA LAW REVIEW [Vol. 33:737

Because the world of lawyering demands that lawyers be able to think
in role, use cases and doctrine for specific ends in the service of their

clients' interests, and be familiar with a repertoire of different problem

solving approaches besides doctrinal analysis.^^ The law schools' three
year emphasis on case analysis within discrete casebook defined courses

poorly prepares students for the eventual world of practice.^^

Professor Leslie Bender has articulated the hidden and fictitious messages

of first year curriculum as follows:^^

(1) legal problems may be divided into seemingly fixed doctrinal categories;
(2) particularized substantive content is to be emphasized over processes of

reasoning, argumentation and law-making, classifications of legal thought more
worthy ofstudy than the values contained within it and abstraction more valuable
than practical lawyering skills;

(3) law focuses on "private disputes and litigation";^^

(4) since there is a "devotion to appellate cases"^^ in the traditional

curriculum, the message given to new students is that attention to specific facts,
contexts, and the people involved is nearly irrelevant, and that law is basically

controversial socio-legal issues'*) is small given that "the vast majority of law review articles are

written for and read by legal academics." Id. at 1 139-40. Indeed, given the criteria of how legal

scholarship is evaluated for purposes ofhiring, promotion, and tenure, it is clear that "actual social

benefit [is irrelevant] to the enterprise of normative legal scholarship." A/, at 1 141.

22. See id.; see also Ian Weinstein, Lawyering in the State of Nature: Instinct and

Automaticity in Legal Problem Solving, 23 Vt. L. Rev. 1 , 52 (1998) (asserting that lawyering is "a

bundle of expertises each defmed by their goals"). Weinstein observes that contrary to more

traditional viewpoints, the focus on case book learning may be less rigorous than other approaches:

"The traditional conception of thinking like a lawyer corresponds to an identifiable

expertise—appellate lawyering .... [but] the excessive focus on that expertise may be explained
by the fact that as hard as doctrinal analysis is to learn, it is easier than manipulating both doctrine

and facts at the same time." Id.

Lani Guinier suggests that if law schools fail to support alternative perspectives and

approaches to learning, the legal profession may be denied "the advantages of creative tension, of

innovative ideas, and of solving problems by merging information from diverse sources." Lani

Guinier, Lessons and Challenges ofBecoming Gentlemen, 24 N.Y.U. REV. L. & Soc. CHANGE 1,
13 (1998). Guinier theorizes that legal problem solving requires diverse perspectives and skills,

"including the ability to listen as well as speak, to synthesize as well as categorize, and to think hard

about nuance and context even when that slows down the decision-making process; insight,

especially in team contexts, benefits from the integration ofmainstream and marginal viewpoints."

Id.

23

.

Elson, supra note 2 1 , at 1 1 4 1

.

24. See Leslie Bender, Hidden Messages in the Required First-Year Law School

Curriculum, 40 Clev. St. L. Rev. 387 (1992).

25. Id at 392.

26. Id



2000] SEPARATING SUPPORT FROM BETRAYAL 747

"the search for abstract rules of law and governing principles'';^^

(5) intellectual priority should be given "to doctrinal categories over

processes oflaw, ofchange, and over practical skills. . . and that the core ofwhat

all lawyers should learn is mostly private common law regulating economic
relationships";^*

(6) The reality of law is more about doctrine and less about
"interactions among individuals in families, in neighborhoods, workplaces,
schools, and communities; between groups of people, and between people

and institutions. . . .";^^ and finally,

(7) students "figure out come exam time, they will be asked about contracts,
notjustice; about torts, not truths; about constitutional doctrine, not substantive

equality."^^

What law school training, therefore, neglects is in great part, "the dynamics
of inevitably working with people."^* This dynamic happens in the context of

"conflicting, uncertain, and unique situations," the interaction of lay and

professional, the influence of cultural and other forces on problem solving, as

well as the impact of income and other power disparities.^^ In this way, law is

better conceptualized as a multilayered activity, rather than a purely analytical

27. Id at 393. As Professor Rhode puts it, "[t]hinking like a lawyer" is typically presented

as the "functional equivalent ofthinking like a law professor." Rhode, supra note 1 5, at 1 559. All

legal thinking must be rational, distanced, and detached. See id.

28. Bender, supra note 24, at 393.

29. "What is troubling in the structure of law school pedagogy has much to do with what

is troubling in lawyer-client relationships." Rhode, supra note 15, at 1554. The authoritarian

structure of law school and the dynamics of classroom settings offer a "disturbing paradigm" that

is replicated in other legal relationships such as those between partner and associate, lawyer and

client, professional and support staff. Id. at 1556. Law schools' culture which focuses on analytic

reasoning and competition over skills such as respect or empathy also ill prepares students for

dealing with clients who may evaluate their satisfaction as much over how they were treated as how

much they "won." Martha M. Peters, Bridging Troubled Waters: Academic Support 's Role in

Teaching and Modeling "Helping" in Legal Education, 31 U.S.F. L. REV. 861, 863-65 (1997).

30. Bender, supra note 24, at 394. The "individualist ethos of legal education is also in

tension with the needs of legal practice," which often requires cooperative process. Rhode, supra

note 15, at 1557. As Professor Gerald Lopez points out:

Does anyone really expect legal education to seem any different. . . when the very

appellate cases that it so regularly attends to are themselves so schematic, ungrounded,

and bloodless? ... In the legal culture the appellate court's distance from the heat of

conflict and from the pathology of failed ventures is hailed as a distinctive

virtue—indeed as a principal source of a judge's authority and the legal system's
legitimacy.

Gerald P. Lopez, Training Future Lawyers to Workwith the Politically andSocially Subordinated:

Anti-Generic Legal Education, 91 W. Va. L. Rev. 305, 336 (1989).
3 1

.

Lopez, supra note 30, at 322.

32. Id



748 INDIANA LAW REVIEW [Vol 33:737

endeavor."

The lack of conceptualization of law practice as a multileveled activity
affects the culture of the classroom as well. As Professor Deborah Post points
out, the prevalent emotion of first year law students is fear:

[F]ear of arbitrariness, the fear of failure, the fear that ensures failure.

They are angry and frustrated. They know that success means a
splintering of self, a division into the professional and the personal to

mirror the dichotomies that dominate the first-year
curriculum—theoretical and practical, procedural and substantive, public
and private law.^"*

Part of the indoctrination process that occurs during the first year of law

school is an infantilization that begins immediately: attendance is taken, official

excuses are necessary for absences, students are "called upon" rather than

volunteer, leaving the room during class is discouraged. Even within the
presentation ofthe subject matter itself, "hiding the ball" is an accepted teaching

technique in which students are kept purposefully in the dark about substantive

information. As one student puts it, the experience of law school "was like
coming into a movie when it was half over."^^ This is because, in reality, legal
education "does not attempt to educate as much as it attempts to weed out
students and to rank the students who remain."^^ In sum, the law school
environment and culture "encourages emotional dysfunction."^^ According to a

33. See Weinstein, supra note 22, at 7 (noting that clinical legal thought "analyzes law as

an activity and attends closely to perspective (role) and context") (footnotes omitted).

34. Harmon & Post, supra note 1 , at 1 94.
35. Id. at 160. Professor Vemeliia Randall describes the approach of traditional legal

pedagogy as the equivalent ofspending a semester teaching a student to play the piano by focusing

most of the student's attention on the analysis of sheet music, and at the end of the term having a

piano rolled in to have student play a piece of music as the final exam. See Vemeliia R. Randall,

The Myers-Briggs Type Indicator, First Year Law Students and Performance, 26 CUMB. L. REV.

63, 65 n.3 (1995).

36. Randall, supra note 35, at 66.

37. lijima, supra note 12, at 530. Law students are considerably more dysfunctional in

almost all categories of psychiatric distress than the general public, become disproportionately

dysfunctional soon after starting law school even if they were within normal psychological ranges

upon entering, and experience increasing dysfunction as they progress through their legal education.

See id. at 525-26; see also Roach, supra note 12, at 669 (stating that the Langdellian method

promotes psychological and academic distress). Indeed, it is the "nontraditional students" who

suffer disproportionately. Id. at 670.

In a moving and provocative article, Professor Calvin Pang points out that "the [legal]

profession, at its core, faces a spiritual crisis that at least partly explains the unhappiness that marks

a significant part of the profession." Calvin G.C. Pang, Eyeing the Circle: Finding a Place for

Spirituality in a Law School Clinic, 35 WILLAMETTE L. Rev. 241, 248 (1999) (citations omitted).

He urges that "[as] law students approach their entry into the profession, they should become aware

not only of this crisis but receive guidance on how to survive it and even how to assist in its



2000] SEPARATING SUPPORT FROM BETRAYAL 749

study reviewing data on law school student levels of anxiety and depression:

law students almost always reported higher levels of anxiety than

comparison groups, including medical students. In some cases, they
report mean scores on anxiety measures that are comparable to
psychiatric populations.^^

When the data on law students' levels ofdepression are analyzed, the results
are similar to that ofanxiety.^^ There is some speculation that both the selection
criteria for law school (certain qualities associated with depression and anxiety

such as the need to "achieve"), as well as the socialization process at the law

school (the law school environment) may interact to produce heightened
psychological distress.'^^

Indeed, there is even evidence that the distress suffered by law students while

in school foreshadows what lawyers experience after law school.'*' Indications

that young lawyers are increasingly unhappy are mounting. One in four
associates quit their first firm after two years and over two out of five are gone

by the end oftheir third year.'*^ Almost forty percent of 1988 graduates left after
three years and more than forty-five percent of 1994 graduates quit."*^ Attrition

at New York City firms averages twenty-five percent, with some firms having a
firm-wide forty-one percent attrition rate."*"* This is despite surging starting

salaries in New York and California near or above the six-figure mark.'*^ Some
critics blame this skyrocketing rate on law firm hierarchy's "antiquated
thinking.'"*^ Thus, the lawyer's lack of training in dealing with people may not
only affect the relationship with clients and adversaries, but with each other as

well.*^ Incapable or unwilling to deal effectively with the problem, the response

ofmany law firms is to deny the morale problems or simply throw more money

dissipation." Id. Pang defines "spirituality" not as a particular religious orientation, but in the

inclusive sense of it being the "'better' or 'higher' part of us. It is the part of us that sets us

searching for meaning and purpose of life, strives for transcending values, meaning, and

experiences, and motivates the pursuit of virtues such as love, truth, and wisdom." Id. at 256-57.

38. Matthew M.Dammeyer&NarinaNunez,/i/w/ei^a«ciZ)e/>re55/c)«y4mo/igLaw 5/Mt/e«/5;

Current Knowledge and Future Directions, 23 LAW &, HUM. Behav. 55, 63 (1999).
39. See id. at 67.

40. See id. at 70-7 1 . The authors suggest that exploring the levels ofpsychological distress

among law students is warranted due to the large number of lawyers and the powerful influence that

they exert upon American society. See id. at 56.

41. See id.

42. See Debra Baker, Cash-and-Carry Associates, A.B.A. J., May 1 999, at 40, 4 1 (quoting

a National Association for Law Placement survey of associates hired between 1988 and 1996).

43. See id

44. See id. (citing a New York Law Journal survey).
45. See id.

46. Id at 42.

47. See id. at 43 (comparing the law firm understanding of people management to the

treatment of "Dickensian factory workers").



750 INDIANA LAW REVIEW [Vol. 33:737

at the problem by creating financial incentives for staying/*

B. The Critique ofSubordination

Perhaps most troubling is the fact that the narrow scope of legal pedagogy's

focus works to the particular detriment of certain segments of the law school
population/^ As a result ofthe lack of fit between legal education and practice
"a substantial proportion of law students—many, but by no means all of them,
women students—experience frustration, or alienation, or both, because of law
schools' failure to engage and develop the full range of intellectual capacities

necessary to successful and responsible practice."^^ Thus, law schools often fail

to develop "the multiple kinds of intelligence" that a diverse population brings

to legal education because the hierarchical and competitive design "inhibits the

academic and professional flowering of a large proportion of its students, [and]

also reflects a counterproductive and all too narrow vision ofwhat lawyers do."^*
This is so for at least two major reasons.

First, law schools are generally not diverse communities. Certainly, the

population of law schools is notable for its lack ofracial diversity. In 1995, only

13.1 % of full-time law teachers were racial minorities, and minority women
suffered a "pervasive disadvantage" in the market for law faculty.^^ While 1 9.6%
of law students were from racial minorities, this is still an overall

underrepresentation because much ofthe growth reflects an increased enrollment
of Asian Americans of 235%.^^ Thus, it should come as no surprise that the
figures for racial composition in other sectors of the legal community reflect
these statistics.^"*

48. See id. at 43, 44.

49. See, e.g., Berger et al., supra note 6.

50. Id. at 1025.

51. /^. at 1 040 (citing and quoting LANi GuiNiER ET AL., BECOMING Gentlemen: Women,

Law School, and Institutional Change 13 (1997)).
52. American Bar Association Commission on Opportunities for Minorities in the

Profession, Miles to Go: Progress of Minorities in the Legal Profession 11 (1998)

[hereinafter ABA, Miles to Go].

53. See id. at 1-2. However, given that statistic it is also interesting to note that despite the

relative surge in Asian American law school admittees, "recent evidence suggests that law schools

hire Asian Americans at a lower rate than other minority groups." Id. at 1 1 . Moreover, since recent

anti-affirmative action court decisions in the 5th Circuit, Hopwoodv. Texas, 78 F.3d 932 (5th Cir.),

cert, denied, 1 16 S. Ct. 2581 (1996)), and California's Board of Regents policy and a later ballot

initiative. Proposition 209, all ofwhich effectively banned any racial considerations in admission

decisions, the law student admissions of African Americans for the major law public schools of

California and Texas dropped by 80%, and 50% for Latinos applicants. See ABA, Miles to Go,
supra note 52, at 1 6- 1 7.

54. In 1 995, African Americans and Hispanics, for example, represented only 2%and 1 .2%,
respectively, of the lawyers at the largest firms. See Jacquelyn H. Slotkin, An Institutional

Commitment to Minorities and Diversity: The Evolution of a Law School Academic Support



2000] SEPARATING SUPPORT FROM BETRAYAL 75

1

Second, traditional curriculum does not engage the full range of diverse

intelligences because it fails to emphasize, and in some instances fails even to
recognize, the fact that legal work is interactive "requiring narrative,
interpersonal, intrapersonal, and strategic intelligences in equal measure with

categorizing and deductive reasoning."" Attention to developing these kinds of

intelligences would lead to stressing fact sensitivity as much as rule sensitivity.
Indeed, disregarding the policy implications of rule interpretations misses "an

important means ofinfluencing decisionmakers' discretion," and also yields "the
responsibility for constructing legal culture that makes practice socially useful
and morally fulfilling."^^ Thus, real world lawyering involves much more
intellectual capacity than the traditional law school classroom encompasses.^^

With all the criticism of law school's curriculum, the most damning are not
those which criticize the distance between what is taught and what must be

learned to practice competently and ethically; the most damning are those

criticisms about how law teaching obfuscates what law "is" and how that
obfuscation exacerbates the alienation of students ofcolor and women from the
study oflaw itself.^* It is this dynamic that ultimately duplicates and perpetuates

the same subordination these law school populations experience in the larger

Program, 12 T.M. COOLEY L. REV. 559, 560 n.6 (1995) (citing Claudia MacLauchlan & Rita
Henley Jensen, Progress Glacial for Women. Minorities, Nat'l L.J., Jan. 27, 1992, at 1, 31).

Moreover, as of 1995, only about 1% of the more than 25,000 partners in the largest 251 firms in
the nation were African American; 44 ofthem having no partners of color, and 61 of them having

only one. See id. Racial minorities as a whole make up only 3% of partners at the 250 largest
firms. See ABA, MiLES TO Go, supra note 52, at 5. Among the 40,000 federal, state, and local

judges only 3.3% are African-American, and 1% are Hispanic. See id. at 10.

55. Berger et al., supra note 6, at 1 06 1

.

56. Id.

57. See id. at 1061 (citing HARMON & Post, supra note 1). The authors point out that
certain kinds ofintelligence, i.e., logical and mathematical, are stereotypically associated with men

while others such as inter and intrapersonal intelligences are associated with women. The latter

intelligences are the ones neglected in law school pedagogy. Thus, the authors point out that it is

important to balance and integrate different kinds of intelligence so that all can utilize different

approaches to legal problems. While it is possible to learn to work comfortably nourished only

within the intellectual domains of traditional law school pedagogy, the authors assert that it is

preferable "to clear the air of intellectual bias and nourish all of the capacities that matter to well-

rounded professional growth." Id. at 1062-63.

58. It has been noted, for example, that even within the curriculum, women's contributions

to the growth of legal jurisprudence have been ignored. See, e.g., Karin Mika, Self-Reflection

Within the Academy: The Absence of Women in Constitutional Jurisprudence, 9 HASTINGS

Women's L.J. 273, 303-04 (1998) (cataloguing the central role women have played in
constitutions^ jurisprudence and noting how those contributions are often marginalized as worth

studying only in courses separated from "mainstream legal study"). Owsley noted in his experience

as a Columbia law student that blatantly racist comments written in judicial opinions were often

considered irrelevant for classroom discussion, although they clearly were relevant to policy issues.

See Owsley, supra note 9, at 522.



752 INDIANA LAW REVIEW [Vol. 33:737

society/^ In fact, the dynamic is reflected in the almost polar opposite views

about law and its practice between white lawyers and lawyers of color.

A recent American Bar Association poll found that ninety-two percent of
black lawyers believed that thejustice system was equally or more racially biased
than other segments of society.^ Yet, more than forty-five percent of white
lawyers thought there was less.^' A minute percentage of black lawyers—less
than three percent—either believed that there was very little racial bias in the
justice system or had no opinion as compared to almost forty percent of white

lawyers.
^^

In a seminal piece on legal pedagogy, Professors Lani Guinier, Michelle

Fine, and Jane Balin observed:

The hierarchy within the large first-year Socratic class also includes a
hierarchy ofperspectives. Those who most identify with the institution,
its faculty, its texts, and its individualistic perspectives experience little

dissonance in the first year. On the other hand are students who import
an ambivalent identification with the institution, who resist competitive,
adversarial relationships, who do not see themselves in the faculty, who
vacillate on the emotionally detached, "objective" perspectives inscribed

as "law," and who identify with the lives of persons who suffer from
existing political arrangements. These students experience much
dissonance."

59. Other segments of the student population experience alienation as well. See Scott N,

Ihrig, Sexual Orientation in Law School: Experiences ofGay, Lesbian, andBisexualLaw Students,

14 Law&Ineq. 555, 561-62 (1996) ("The absence ofaGLB [Gay, Lesbian, or Bisexual] presence
in classrooms and throughout law school injures the GLB community. It reinforces our societal
invisibility and denies us the privilege ofcommunity."); see also Jennifer Gerada Brown, "To Give

Them Countenance ": The Casefor a Women 's Law School, 22 Harv. WOMEN'S L.J. 1, 3 (1999)

(proposing a law school for women "where they perceive themselves not as a foreign element" but

as "full members ofan institution dedicated to them"); Judith Fischer, Portia Unbound: The Effects

ofa Supportive Law School Environment on Women andMinority Students, 7 U.C.L.A. WOMEN'S

L.J. 8 1 ( 1 996) (discussing four law school studies at Yale, University ofPennsylvania Law School,

Boalt Hall-University of California-Berkeley, and Ohio indicating women experienced great

alienation in law school).

60. See Terry Carter, Divided Justice, ABA J., Feb. 1 999, at 42, 43

.

61. See id. at 42.

62. See id.

63. Guinier et al., supra note 14, at 47. The authors note that law school

creates the categories that the school then presumes to be sifting. We call this the
process of "legitimation." Those who identify with the norms and goals of the

institution and perform accordingly are legitimated through institutional rewards. In

turn, the institution is legitimated in its selection criteria by the very fact that these are

always those who meet these criteria.

The legitimating process affects students in two ways. First, the institution attempts

to legitimate its structural organization and values by formally presenting them to the



2000] SEPARATING SUPPORT FROM BETRAYAL 753

Gerald Lopez has observed that the values which the culture of law schools
and legal pedagogy assume as a baseline are, in essence, narrow expressions of
specific racial, gender, and class experience.^ These values are ingrained and

become self-referential due to the lack of inclusivity and diversity among law
school faculties.^^ Thus, many students of color and women are forced to

student as intrinsic components of "thinking like a lawyer." Thus, the law school

transmits the formal structure of the institution by preparing the student for hierarchical

relationships (teacher-student is equated with partner-associate, judge-counsel, and

lawyer-client) as well as by telling the student that acceptance of these relationships is

necessary for effective lawyering.

Second, the student reciprocates in the process oflegitimation by accepting the law

school on its terms, including accepting as legitimate the system by which the law

school evaluates and ranks its students. Implicitly, then, the student recognizes that the

law school has the right to rank students, that the ranking must be correct, and that the

ranking represents the student's true ability to be a lawyer (at least in relation to the

others in his class).

Id, at 69-70 (footnotes omitted). See also Duncan Kennedy, Legal Education as Training for

Hierarchy, in THE POLITICS OF LAW, APROGRESSIVE CRITIQUE 3 8 (David Kairys ed., 2d ed. 1 990).
Professor Kennedy asserts that students respond to the hidden messages of law school in different

ways. See id. at 56. "They accept the system's presentation of itself as largely neutral, as apolitical,

meritocratic, instrumental, [and] a matter of craft," and carve out a separate private life in which

their own values become more central. Id. at 56-57.

According to Kennedy, legal education supports legal hierarchy by providing it with a

legitimating ideology, and structures prospective lawyers into believing that legal hierarchy is

inevitable. See id. at 56. Moreover, "[t]eachers teach nonsense when they persuade students that

legal reasoning is distinct, as a methodfor reaching correct results, from ethical and political

discourse in general" (i.e., from policy analysis). Id. "Put another way, everything taught, except

the formal rules themselves and the argumentative techniques for manipulating them, is policy and

nothing more." Id. at 45.

64. Lopez states:

Indeed, in terms ofwhat counts as knowledge, in terms of what's valued as success, in

terms of how to behave and advance, and in terms of what's comfortable and familiar

along the dimensions ofrace, gender and class, one could hardly find a better socializing

experience for future business lawyers than law schools in this country.

Lopez, supra note 30, at 348.

65. Lopez observes:

Whatever else law schools may be, they remain intensely mainstream in terms of race,

gender, and class; in terms of how authority is exercised; and in terms of what counts

as wisdom and insight. Whatever else law schools may be, they are not where you go

to learn about how the poor live, about how elderly cope, about how the disabled

struggle, and about how single women of color raise their children in the midst of

mediocre schools and inadequate social support. Most of those people never get near

making it into law schools, let alone on to faculties [I]t has not been my experience
that law school cultures or law students themselves value what subordinated people may



754 INDIANA LAW REVIEW [Vol. 33:737

"retool" themselves to conform to the culture in order to attain the values and

cultural outlook that law school and legal practice demand of its members.^
Accordingly, there is agreement among many legal educators that law schools
have failed in any attempt "to engage and educate diverse students

democratically and critically about the practices and possibilities of law for all

people."^^

The substantive dynamics ofthe classroom also have a severe impact on law
students of color because the norm of objectivity creates a fiction that the
dominant racial perspective is neutral.^* Students of color are often forced to

"stand apart from their history, their identity, and sometimes their own immediate
circumstances and discuss issues without making reference to the reality that the
'they' or 'them' being discussed is from their perspective 'we' or 'us.'"^^

Students ofcolor experience two contradictory phenomenon simultaneously.
They experience "objectification," the expectation that they adopt dominant
white racial perspectives when discussing minority issues, and "subjectification,"
the result when students ofcolor express themselves referencing a different racial
experience and it is assumed by their professors and classmates that these

have to teach about the world from which they came or in which they now live. If

anything, subordinated people feel pressures in and around law schools to act white,

straight, upper-class, and male.

Id. at 353.

66. Guinier et al., supra note 14, at 59-60 (noting that many female students at the

University ofPennsylvania School ofLaw where Professor Guinier was once a professor "become

gentlemen" to the extent that they "aspire to ascend the status hierarchy without necessarily

confronting its normative condition along the way" (quoting Robert Granfield, Making Elite

Lawyers: Visions of Law at Harvard and Beyond 108 (1992))).
Most of this paper is about a group ofwomen at the Law School who cannot or do not

want to "become gentlemen.". . .The first group ofwomen fails academically as well as

personally. The second group ofwomen succeeds academically. These are women who

do "become gentlemen." Within this category of successful women, there is also a

subset who do well but feel alienated. This subset of women resents the sacrifices of

self that law school requires them to make. These women perceive that law school is

a "game." These women learn the rules in order to play the game, but are acutely aware

of the price they are paying.

Id. at 82.

67. Id. at 99 n.273 (quoting Michelle Fine) (stating further "[i]n the meantime, the price

borne by women across colors is far too high and their critique far too powerful to dismiss. The

question is not about women; it is about the political project of law schools, and the price women

have to pay to become gentlemen."); see also Taunya Lovell Banks, Gender Bias in the Classroom,

38 J. Legal Educ. 137, 138 (1988) (observing that law schools expect women "to become more

like men" in order to succeed).

68. See Kimberl6 Williams Crenshaw, Foreword: Towarda Race-Conscious Pedagogy in

Legal Education, 1 1 Nat'l BLACK L.J. 1, 2-3 (1989).

69. /^. at3.



2000] SEPARATING SUPPORT FROM BETRAYAL 755

observations are not objective, but biased and self-interested opinions/^ The
only escape from these twin problems is when their experiences are deemed
completely irrelevant to the discussion at which point there is a welcomed
invisibility, but an invisibility that often leads to intense alienation.^' As such,
law students of color must often "unlearn patterns of disengagement and

alienation."^^ Furthermore, it is more than isolation in the classroom, it is

70. Id. at 3-9. Owsley describes his reaction as a Columbia law student as follows:

These discussions ofrace and diversity were occurring quite frequently, and I was

somehow always involved in one. In all fairness, I would have to admit that it was a

topic that interested and concerned me, so I was open to them on a certain level.

Nonetheless, such discussions often caused me a lot of pain and anxiety. . .

.

At times, I got so caught up in it all that I became overwhelmed.

Owsley, supra note 9, at 523.

71. 5ee Crenshaw, 5M/?ra note 68, at 3.

72. Id. at 1 3; see also Paula Gaber, "Just Trying to Be Human in This Place ": The Legal

Education ofTwenty Women, 10 YALE J.L. & FEMINISM 165 (1998). Gaber, inspired by an earlier
piece written about the experiences of women at Yale Law School (Catherine Weiss & Louise
Melling, The Legal Education ofTwenty Women, 40 STAN. L. REV. 1299 (1988)), followed up the

article ten years later. Sadly, she found that the alienation felt by women law students as originally

documented by Weiss and Melling, had not changed in ten years. See Gaber, supra, at 249. They

reported that women's negative experiences in law school included disrespect from fellow students,

feelings of isolation, unequal classroom participation, differential grading patterns, open sexual

harassment of women students, and ethnic and racial stereotyping. See id. at 1 70 (citing the

American Bar Association Commission on Women in the Profession, Elusive Equality:
The Experiences of Women in Legal Education ( 1 996)).

It is worth noting that James Barr Ames, an early appointee of Langdell's at Harvard Law
School criticized what he saw as a lack of "virility'* in the teaching of law before the Langdellian

case method. Stevens, supra note 18, at 54-55 (quoting Harvard Law School Association,
Centennial History of the Harvard Law School, 1817-1917, at 130 (1918)). Stevens
characterizes the Langdellian "scientific approach" toward legal analysis as a "Darwinian," survival

of the fittest and "machismo" pedagogical approach. Id. at 54. Ames is credited, along with

Langdell and Charles Eliot the president of Harvard University during Langdell's deanship, with

creating Harvard's influence among contemporary law schools:

Eliot provided the inspiration and "power in action," Langdell was its first practitioner

and therefore its symbol, and, finally, the talent and perhaps youthful enthusiasm of

Ames helped to perfect and perpetuate the system. The case method fulfilled the latest

requirements in modem education: it was "scientific," practical, and somewhat
Darwinian. It was based on the assumption ofa unitary, principled system ofobjective

doctrines that seemed or were made to seem to provide consistent responses. In theory,

the case method was to produce mechanistic answers to legal questions; yet it managed

to cre\^te an aura of the survival of the fittest.

Id. at 55 (footnotes omitted); see also Gaber, supra, at 165 n.3 (noting that an "underlying premise"

in Victorian America's legal consciousness was that law was a "masculine domain" (quoting

Michael Grossberg, Institutionalizing Masculinity: The Law as a Masculine Profession, in
Meanings for Manhood: Constructions of Masculinity in Victorian America 1 33, 134



756 INDIANA LAW REVIEW [Vol. 33:737

also isolation from access to "pivotal survival information" such as outlines,

study groups, mentoring from upperclass students that has severe academic
consequences for many law students of color.'^

However, the successful study oflaw requires a student's engagement in his
or her study7"* For students to be engaged, a supportive atmosphere and the

contributions ofstudents from different socioeconomic and cultural backgrounds

must be encouraged. ^^ Often certain law students are not in the presence of

professors from similar backgrounds, and thus they may question whether they
can contribute to the profession. This may lead to a loss ofconfidence which, in
turn, consumes energy and time and interferes with the concentration necessary

for successful study.^^

(Mark C. Games & Clyde Griffen eds. 1990))).
Not only was there a distinctly male cast to the 19th century approach to law, but a European

one as well. Both Eliot and Ames were influenced by contemporary German educational practices

and theories. See Clark, supra note 12, at 498-503. Under their influence, Harvard Law School

"attempted to embrace a kind of Germanic 'scientism' while retaining an Anglophilic and

Anglophonic facade." Id. at 503 (quoting STEVENS, supra note 18, at 134).

73. Roach, supra note 12, at 674-76.

74. See Phyliss Craig-Taylor, To Standfor the Whole: Pluralism and the Law School 's

Professional Responsibility, 15 Nat'L BLACK L.J. 1, 21 (1997). Isolation of students from the

larger institution has profound academic, institutional, and psychological ramifications. See Roach,

supra note 12, at 669. For example, studies have shown that women law students tend to receive

grades below those which would be expected, given their entering credentials. See Brown, supra

note 59, at 2 (citing Linda F. Wightman, Women in Legal Education: A Comparison of the
Law School Performance and Law School Experience of Women and Men 1 6-27 ( 1 996)).

75. See Craig-Taylor, supra note 74, at 2 1

.

76. See id.; see also Elizabeth Mertz et al.. What Difference Does Difference Make? The

Challenge for Legal Education, 48 J. LEGAL Educ. 1, 3-4, 74 (1998) (reporting on classroom

dynamics in terms of race, gender, and school status in an observational study ofeight law schools

and finding that there was a correlation between the presence of a teacher of color and greater

participation by students of color).

Professor Craig-Taylor also recommends that:

Determining which rules need to be changed in order to level the playing field is a

complex process Constant assessment ofresources for and impediments to creating

pluralized faculty and student population must be undertaken. This type of assessment

must take into consideration hiring practices, curriculum, course offerings, teaching

methods, allocation of resources and decision-making, etc. Hopefully, ongoing

assessment will help to reveal whether law schools are communicating less than positive

messages to outsider groups regarding their value and place within the institution.

Craig-Taylor, supra note 74, at 23.

Professor Mertz suggests that "examination of the ways in which class size, teacher and

student discourse styles, gender, race, and other factors interacted might yield some insight into how

to create an encouraging and inclusive classroom environment." Mertz, supra, at 76-77. There is

some opinion that it is the use ofthe Socratic method which contributes to the silencing ofwomen

in law school. See Brown, supra note 59, at 12-14.



2000] SEPARATING SUPPORT FROM BETRAYAL 757

The marginalization of groups within the legal academy is not solely a
function of interpersonal or classroom dynamics, but also exists explicitly and

implicitly within the substantive curriculum. Professor Judith Greenberg argues

that the prevalent, but fictitious and ultimately destructive, assumption that there

is a colorblind legal system is replicated in traditional legal pedagogy:^^

The curriculum, the teaching materials, and the common pedagogical
techniques are all structured around the norm of whiteness that is
rendered color-blind by the unstated assumption that African American
students are fundamentally the same as white students. Race is

addressed only through widespread silence. Deeply submerged and in

opposition to this assertion of color blindness is the hidden message of

the curriculum, materials, and techniques that African American students

are inferior and dangerous to white students. These two messages exist
simultaneously in the curriculum, in tension with each other.^*

Thus, the goal of teaching students to "think like a lawyer" has implicit

colorblind implications because the expectation is that race is irrelevant in terms

of determining whether one is "thinking like a lawyer:" "The phrase 'thinking
like a lawyer' has meant discovering the underlying scientific principles of the

law—^principles that are equally available to and supposedly have equal meaning
for all students, regardless of race."^^

The message that race is irrelevant affects the structure and content of the

law school curriculum. Just as colorblind legal jurisprudence contains hidden

messages ofwhite supremacy, so too does colorblind legal pedagogy, as has been

pointed out by many legal scholars.*^ In a larger sense, the absence of a

77. See Judith G. Greenberg, ErasingRacefrom LegalEducation, 28 U. MiCH. J.L. REFORM

51, 55 (1994) ("[The colorblind] ideal is premised on the assertion that race is irrelevant to

individual identity [and] this norm can be expected to have a significant effect on the treatment

of racial issues within law school."); see also Wells, supra note 3, at 3 ("Too often, class

discussions assume a white perspective and when this unstated assumption is combined with the

equally unstated assumption of perspectivelessness, it does much to reinforce societal patterns of

racial subordination.").

78. Greenberg, supra note 77, at 55.

79. Id. at 68.

80. See id. at 75. Professor Greenberg points out:

[T]he discourse of color blindness supports a belief in law school as a meritocracy,

while the discourse of deviance and danger leaves legal academics unsurprised when

African American students fail. Second, the ideology of color blindness claims that

decisions, including curricular decisions, should be made without reference to race. If

African Americans are assumed to be the same as whites, then it is sufficient to discuss

only whites in the classroom. Nothing would be added by discussing African

Americans. The result is that legal education has needed to change very little to

accommodate the presence ofAfrican Americans. The ideology of race-blind equality

supports the meiintenance ofthe status quo, as does the possibility ofAfrican American

difference and inferiority. Neither of these discourses admits the possibility of



758 INDIANA LAW REVIEW [Vol. 33:737

contexturalized vision of how status intersects with the law and how the
normalized racial and gender assumptions inherent in neutrality in actuality
privileges some students over others.*'

On the level of content and approach to the substantive material itself,
Professor Frances Lee Ansley, among others, has described how substantive law
areas, even within the core curriculum, are rich in racial implications but those

overtones are rarely addressed or discussed in the traditional law classroom.*^

Moreover, the mere inclusion of racial, gender, or sexual orientation issues into
the curriculum is not enough, but rather what is also necessary is the
understanding and the acknowledgment of how these issues play out within the
law, the society, and the classroom."

It is against this context that ASPs must be considered. Indeed, to the extent
that ASPs must deal with subordinated populations among law students, it is
critical to address the more difficult gender and racial issues or risk exacerbating
the very subordination that disadvantages many in the first instance.*'* While

difference without inferiority.

Id. at 96. See also Neil Gotanda, A Critique of "Our Constitution Is Colorblind, " 44 STAN. L. REV.

1,16 (stating that the nonrecognition ofrace fosters the "systematic denial ofracial subordination"

which ultimately perpetuates the subordination).

Professor Wildman observes, "The reality is that ifwe say race plays no part, then the invisible

system of white privilege will inevitably continue." Wildman, supra note 9, at 91.

81. Professor Wildman observes legal liberalism's construction that all individuals are

similarly situated and that absent unfair treatment, the notion of systemic privilege is left

unacknowledged. See id. She notes that seeing privilege takes effort for those privileged since it

is the norm. See id. Moreover, since "each of us lives at the juncture of privilege and

subordination" analysis of it is a complex undertaking. Id. However, she concludes that teaching

and learning in a diverse environment "requires awareness and honesty about systems ofprivilege."

Id at 92.

82. See Ansley, supra note 1 0, at 1 52 1 -3 7; 5ee also Charles R. Calleros, Training a Diverse

Student Bodyfor a Multicultural Society, 8 LA Raza L. J. 140, 147-55 (1995) (discussing ways to

incorporate issues of diversity into the classroom).

83. See Wildman, supra note 9, at 89 ("We seek more than mere inclusion of race, gender,

and sexual orientation in the law school curriculum. We seek understanding as well."). Even in
the first year legal writing courses, the pedagogical emphasis on legal discourse "both reflects and

perpetuates the biases in legal language and reasoning." Stanchi, supra note 6, at 20.

84. See Greenberg, supra note 77, at 51-55 (discussing the participation of minority law

students in academic support programs). It has been suggested that one ofthe goals ofASPs is "to

provide a supportive environment for, to enhance the sense ofcommunity among, to increase the

information flow to, and thus improve the performance of, a group of students who have

traditionally been at risk for underperformance." Cerminara, supra note 7, at 251. Indeed, the

original impetus for academic support programs may have arisen "from the desire to improve the

environment surrounding and performance ofminority students." Id. at 252. Law students ofcolor

"have not achieved, in numbers proportionate to their percentage of law students, the traditional

indicators of academic success" despite their diligent study habits. Pamela Edwards, The Culture

of Success: Improving the Academic Success Opportunities for Multicultural Students in Law



2000] SEPARATING SUPPORT FROM BETRAYAL 759

ASPs have a potentially significant and positive role to play for students ofcolor,
the role has potential negative implications as well. It has been observed by

Paulo Freire that:

All domination involves invasion—at times physical and overt, at times
camouflaged, with the invader assuming the role of a helping

friend

Cultural conquest leads to the cultural inauthenticity of those who are
invaded; they begin to respond to the values, the standards, and the goals

of the invaders. In their passion to dominate, to mold others to their
patterns and their way of life, the invaders desire to know how those they
have invaded apprehend reality—but only so they can dominate the latter
more effectively. In cultural invasion it is essential that those who are
invaded come to see their own reality with the outlook of the invaders
rather than their o\vn; for the more they mimic the invaders, the more
stable the position of the latter becomes.^^

Whether ASPs play the role oftrue "helping friends" or of "cultural conquerors
in disguise" depends upon the articulation and implementation of our mission.^^

School, 3 1 New Eng. L. Rev. 739, 739-40 ( 1 997) (discussing a study by the Law School Admission
Council, conducted by Linda F. Wightman, Women in Legal Education: A Comparison ofthe Law

School Performance and Law School Experiences ofWomen and Men, LSAC RESEARCH REPORT
Series (1996)).

85. Paulo Freire, Pedagogy of the Oppressed 150-51 (1970) [hereinafter Freire,

Pedagogy]. Professor Kathryn Stanchi also sees the connection between the teaching of legzil

writing in the first year to the muting of "outsider" voices:

Indeed, because ofthe degree ofcultural and ideological bias contained in the language

oflaw, legal writing's effectiveness in teaching that language is directly proportional to

its effectiveness in muting outsider voices: the better legal writing is at teaching the

language of law, the more effective it is at muting those individuals whose voices are

not included in the language of law, and the more effective legal writing is at ensuring

that those voices will continue not to be heard in the legal context.

Stanchi, supra note 6, at 20.

86. There is much historical precedent for the attempt to retool populations to conform to

the dominant norm. The Indian boarding school system established by the federal government in

the 1 880s attempted to remove all traces ofNative American culture. See Robert J. Miller & Maril
Hazlett, The "Drunken Indian": Myth Distilled into Reality Through Federal Indian Alcohol

Policy, 28 Ariz. St. L.J. 223, 232 n.38 ( 1 996). Children as young as five years old were taken from

their parents, dressed in western style clothes, taught English and beaten if they spoke their own

language. See id. Captain Richard H. Pratt, the superintendent of the Carlisle Indian Boarding

School, is remembered for saying, "[A]ll the Indian there is in the race should be dead. Kill the

Indian in him jmd save the man." Carl G. Hakansson, Allotment at Pine Ridge Reservation: Its

Consequences and Alternative Remedies, 73 N.D. L. REV. 231, 239 (1997) (quoting Richard H.

Pratt, The Advantages ofMingling Indians with Non-Indians, in AMERICANIZING THE AMERICAN

Indians 260-61 (Francis Paul Prucha ed., 1973)).



760 INDIANA LAW REVIEW [Vol. 33:737

II. The Responses of Proponents of Legal Academic
Support to the Critiques

There is a growing presence within the legal academy of ASP services. In
a recent conference held in 1997 at Pace University School of Law and hosted
by the Law School Admissions Council, the official attendee list had over eighty
law schools and educators represented from across the United States and

Canada.*^ However, the recognition ofthe role ofASPs in both helping students
simply achieve higher law school grades and helping them understand the nature

and effect of law school pedagogy and culture upon them is not entirely clear
from either the relevant literature or the orientation of these professional

gatherings.** The lack ofa clear distinction between the two orientations is more
than just the acknowledgment of a casual disjunction. If one accepts the
pervasive critique that traditional law school pedagogy is fundamentally flawed,
then whatever role ASPs play in exacerbating that effect, particularly upon
students from marginalized and subordinated populations, is troubling.

Generally speaking, there are two worldviews that have informed the practice

of ASP professionals. There are those in the field who candidly and solely
advocate that ASPs focus only on the academic performance of students.*^
According to this view, the point ofASPs is essentially to attempt to improve the
learning skills of students in order to help them "cope" with law school.^ The
other general outlook is to look to learning theory to create techniques and

approaches that either will (1) enhance the learning environment for students

participating in ASPs themselves, and/or will (2) change the way that traditional

87. See 1 997 LSACACADEMIC ASSISTANCE TRAINING WORKSHOP MANUAL, Attendee List
(on file with author).

88. In the interest of disclosure, I should point out here that I did not attend the 1 997 LSAC
Conference; therefore, it is highly conceivable, even probable, that issues of racial and gender

subordination were discussed in many of the workshops. However, I noted that of the twenty-

seven workshop topics listed in the manual for the conference, only three might be settings in which

a consideration of the intersection of pedagogy and subordination might be explored in a

substantive way ("Creating a Culture ofInclusion," "Strategies and Considerations for Empowering

Students for the Classroom," and "ASP and the Legal Academy: Where Does ASP Fit Within the

Institution?").

This is also not to say that these issues have not been discussed at other gatherings. See Paula

Lustbader, From Dreams to Reality: The Emerging Role of Law School Academic Support

Programs, 31 U.S.F. L. Rev. 839, 844-46 (1997) (describing the emergence ofASP influence on

numerous issues from 1992-97).

89. See, e.g. , Kristine S. Knaplund & Richard H. Sander, The Art andScience ofAcademic
Support, 45 J. Legal Educ. 1 57, 1 59 ( 1 995) (asserting that while some ASPs may be geared toward

"the general well-being of minority students," the main goals are academic ones which "are

supposed to help participating students catch up with their classmates and to equip them for

success").

90. /^. at 161.



2000] SEPARATING SUPPORT FROM BETRAYAL 76

1

law school courses are taught. However, although both approaches deal with

immediate issues confronting "at-risk" students, neither completely confronts

other issues faced by many students of color both in the classroom and in the
institution which can have devastating effects upon their academic performance.

A. The Assimilationist Approach

Consistent with the former perspective is some acknowledgment of positive
nonacademic effects of ASPs (more cohesive environment, congruence of
academic achievement, greater retention and participation). However, the overall

success of ASPs is to be evaluated by focusing on grades because "better grade
performance is the single most important purpose of academic support . . . ."^^

In effect, under this approach, the successful ASP is the one which most
effectively and efficiently "retools" law students to "cope" with traditional law

school culture and its demands.^^

Professor Ruta Stropus asserts that the point of ASPs is to "target 'at risk'
students to help them to understand and master the Langdellian

[casebook/Socratic] method."^^ Indeed, the purpose of ASPs' is to "empower
students to succeed without disrupting the benefits bestowed by the Langdellian

method. . . . The key lies not in abandoning the system, but in learning how to
deal with it, understand it, and work within it."^'* According to Stropus, students
must understand that "[a]lthough it is true that the Langdellian method derives
its origins from white men, it is not true that only white males master the

technique."^^ Thus, there is an express advocacy of an acceptance of the

traditional pedagogy. Indeed, there is a celebration of it.

There is an obvious appeal to this approach. Good grades mean good jobs.
The reason that there are academic support programs in the first instance is
because some students are not able to achieve the level ofexpected performance
necessary to excel or even to graduate. Indeed, one might argue that the point of

law school is not to feel good about one's self, and perhaps unfortunately, few
if any law students would forego the possibility of good grades for a chance at
improved self-esteem. In essence, this approach is an acceptance of and a

capitulation to the reality that it is a white, male-dominated world and to win one
must play the game within the given rules. Nevertheless, there is little hard
evidence that ASPs accomplish the limited goal ofimproving grades even within
the confines of the traditional pedagogy.^

91. /flf.atl96.

92. See, e.g., Ruta K. Stropus, Mend It, Bend It. and Extend It: The Fate of Traditional

Law School Methodology in the 21st Century, 27 LOY. U. CHI. L.J. 449, 485-88 (1996).

93. Id. at 485 (footnotes omitted).

94. U. at 488.

95. Id. at 484. Professor Stropus suggests that professors might ease the stress of the

Langdellian method by giving it an historical context and explaining its pedagogical goals. Id. at

477.

96. See Knaplund & Sander, supra note 89, at 163 (asserting that "a clear showing of



762 INDIANA LAW REVIEW [Vol. 33:737

B. The Learning Theory Approach

Other academic support professionals, while seeing the need to address legal

pedagogy as a whole and its particular effect upon students ofcolor, nevertheless

still focus their energy on creating and teaching learning techniques to help

students improve their academic performance.^^ They seek to incorporate within
ASPs the visions of legal education reformers who advocate changing the ways
in which students learn the law by changing the way that law professors teach it.
Their authority for evaluating and changing legal pedagogy is rooted in the
literature and research on general adult leaming.^^ According to this view, by
implementing techniques of adult education in law school, the academy will be
able to improve its teaching and consequently, improve the performance of its

students.'' As a result, attention is placed primarily on solutions which utilize
learning theory for students to "learn how to learn," '^° by developing effective

academic benefits flowing from academic support has never been made."). Not surprisingly, there

have been criticisms ofacademic support programs that reflect similar criticisms oftraditional law

school pedagogy. See, e.g., Leslie G. Espinoza, Empowerment andAchievement in Minority Law

Student Support Programs: Constructing Affirmative Action, 22 U. MiCH. J.L. REFORM 28 1 , 282

(1989), Professor Espinoza states that the "mere existence" of academic support programs is not

positive if the message support programs relay is not encouragement and empowerment, but

incompetence and the "predictive certainty offailure." Ifthat is the message, then academic support

programs are "destined to fail." Id.

97. See, e.g., Pamela Edwards, The Culture ofSuccess: Improving the Academic Success

Opportunities for Multicultural Students in Law School, 31 New Eng. L. Rev. 739, 746 (1997)
(stating that the factors that interfere with academic success are: poor writing skills, concerns about

fmances, overwork, discrimination, and cultural factors). Social isolation is another factor that has

a negative impact on law students of color. See id. at 757-59.

98. See, e.g., Robin A. Boyle & Rita Dunn, Teaching Law Students Through Individual
Learning Styles, 62 ALB. L. REV. 213 (1998); Gerald F. Hess, Listening to Our Students:

Obstructing and Enhancing Learning in Law School, 3 1 U.S.F. L. REV. 941, 941-42 (1997).
99. See Hess, supra note 98, at 94 1-42. Professor Hess enumerates six principles of adult

teaching and learning:

1

.

Voluntariness (understanding that adults are highly motivated learners and will

engage in such activities as discussion, simulation, and small group activities);

2. Respect (fostering mutual respect between students and teachers);

3. Collaboration (engaging students by utilizing cooperative effort);

4. Context (recognizing that adults learn by evaluating information through the

context of experience);

5. Activity (acknowledging that the learning process must involve more than

passive listening);

6. Evaluation (recognizing the need for effective evaluation ofstudents' learning).

Id. at 942-44.

1 00. Edwards, supra note 97, at 760 (citing Paul T. Wangerin, Learning Strategiesfor Law

Students, 52 Alb. L. Rev. 471 (1988)). I



2000] SEPARATING SUPPORT FROM BETRAYAL 763

study skills, constructing efficient schedules, improving critical thinking skills,

and improving writing skills.'^* Since there is evidence that academic counseling

provides only short term grade improvement which disappears after the

counseling ends, some scholars have urged that academic support programs
utilize an "independent learning theory," which emphasizes ways in which the
student learns to self-direct his or her own learning.

'^^

However, while both approaches necessarily address the problems some
individual students may have coping with traditional pedagogy, they leave
unaddressed other fundamental issues that confront legal pedagogy with respect

to the total learning environment oflaw students and the educational content they

receive from their substantive law school courses. If one were to compare these
approaches within the context of the miner's canary metaphor, the latter is

concerned about finding ways which will help the canary breathe, while the
former wants to actually breed canaries that will thrive in mines while the levels

oftoxicity in the atmosphere rise.'°^ Neither focuses on how to change the toxic

101. See id. at 764-66; see also Cerminara, supra note 7, at 256 ("[ASPs] must concentrate

on teaching students how they best learn, providing different learning and studying techniques than

the students might otherwise have adopted so that those students are strengthened in future,

independent learning efforts.").

102. Kg., Paul T. Wangerin, Law School Academic Support Programs, 40 HASTINGS L.J.

771, 786 (1989). Ironically, Wangerin concludes that the Langdellian "Classic Case Method" of

instruction, including the use of the hypothetical method, or reconciling conflicting cases with

similar facts, is the most effective way to have students develop independent learning skills. Id. at

798-80 1 . Indeed, it is his contention that most modem professors do not engage in the case method
style of instruction enough. See id. at 796. Thus, this approach seems curious and even illogical,

and somewhat circular. Wangerin even admits that students will resist the "Classic Case Method"

and this resistance will "duplicate the resistance shown by generations of law students" before them

but that academic counselors should persevere because as "generations of law teachers can attest

. . . students* initial resistance to use of these techniques begins to break down." Id. at 801. One

might characterize this proposed "cure" as giving the patient a stronger dose of the disease.

103. The miner's canary metaphor is perhaps best associated with Professor Lani Guinier.

See, e.g., Lani Guinier, Reframing the Affirmative Action Debate, 86 Ky. L.J. 505, 505-07 (1998).

The miner's canary was a canary that was brought into the mines to alert miners when the

atmosphere was becoming toxic. Because the canary was more sensitive to the toxicity, its

condition provided a warning to the miners when the air was becoming dangerous. Guinier is

concerned that our attempt to deal with the problems ofinequality in society is akin to miners trying

to revive the expired canary rather than trying to fix the poisonous atmosphere that caused the

canary's death in the first instance.

Ofcourse, the miner's canary metaphor assumes certain premises. The major premise is that

the atmosphere is toxic to all if the canary dies. There may be some who might contend that there

is nothing wi^ong with the atmosphere of law schools, and if the "canaries" die it is a natural

phenomenon, or some weakness on a particular canary's part. Thus, some might argue that the idea

of law schools is to breed canaries that will be able to breath and survive in a toxic atmosphere.

Indeed, it could even be assumed that the atmosphere that kills some canaries is actually the best

atmosphere of all because it kills inferior canaries and allows hardier, more deserving entities to



764 INDIANA LAW REVIEW [Vol. 33:737

atmosphere in the first instance particularly with respect to negative effects of

normative perspective on marginalized student populations.^^ In fact, the desire
to change the way in which law is taught, logically implies that there are
corresponding values about what law is or by whom and how it should be
practiced that are not being sufficiently communicated through the traditional
pedagogy.

'°^

Even those legal scholars who believe that the underlying purpose of ASPs
is to diversify the legal profession as a whole tend to focus inward on the

students in ASPs rather than on those aspects ofthe institution which drove them
there in the first place. '^ With respect to working with students themselves.

live. Perhaps this is what the "survival of the fittest" allusion to Langdellian pedagogy is about.

See generally STEVENS, supra note 18.

1 04. See Banu Ramachandran, Note, Re-reading Difference: Feminist Critiques ofthe Law

School Classroom and the Problem with Speaking from Experience, 98 COLUM. L. REV. 1757

(1998). Ramachandran asserts that the way to improve women's law school experience is "not

primarily by attacking theforms of legal education (for instance, a nonabusive Socratic teaching

method), but by imbuing the content of legal education with the critical stance that feminist,

antiracist, and antihomophobic work typifies." Id. at 1793 (emphasis added).

1 05

.

See Cynthia V. Ward, A Response to Professor Vernellia R. Randall 's the Myers-Briggs

Indicator, First Year Law Students and Performance, 26 CUMB. L. Rev. Ill, 115 (1995)

(observing that "proposals to reform law school education via more skills training are necessarily

based upon some fundamental claim about the nature of law practice."). Professor Ward observes

that Professor Randall's arguments for an educational reform that would take into account different

learning styles must imply a larger critique of law and legal practice. See id. at 1 14. She implicitly

criticizes Professor Randall for not expressly linking her pedagogical approach to a larger critique.

See id. at 1 20. However, while not a central aspect ofher article. Professor Randall does expressly

link her perspective to a critique about the racial and class bias of legal education. Randall asserts

that the present pedagogical orientation of law schools is positioned from an historical law school

population that had "essentially the same background—white, upper-middle class, male—^and when
the legal system was tailored for the practice of persons from that background." Randall, supra

note 35, at 66 n.4. She concludes that the legal system should reflect the larger society and its

practitioners "must come from diverse cultural, ethnic, and educational backgrounds . . . [such that

law schools] must develop a pedagogy that allows those who are not white, upper-middle class

males to succeed with the same frequency as those who are." Id. Professor Pamela Edwards

recognizes the social and ideological difficulties faced by law students ofcolor within the pedagogy

and environment of law school, although her primary focus is on solutions to help students study

more effectively. See Edwards, supra note 97. I should reiterate here that my purpose with this
piece is not to advocate an abandonment of incorporating more learning theory into academic

support. My only point is that learning theory may be necessary but, by itself, is not sufficient. See
infra Part III.

106. See, e.g., Lustbader, supra note 88. Professor Lustbader notes:

[Law school promotes] exclusivity over inclusivity, individuality over community,

economic efficiency over moral or humanistic efficiency, and rights over care-

orientation. Many people have argued that the legal system will continue to

inadequately respond to a culturally diverse society until a critical mass of diverse



2000] SEPARATING SUPPORT FROM BETRAYAL 765

some commentators focus on the development ofcognitive structural frameworks

to help students organize and retain the information they receive. ^^^ According

to this approach, a major part of the task of academic support faculty is to

recognize, acknowledge, and teach to different learning styles through the use of

different teaching strategies. In the process students then understand that their

learning problems are less personal than institutional. '°* As Professor Paula
Lustbader articulates it: "ASP's pedagogical approach is simple: it creates a safe
and effective learning environment; is student oriented; reinforces students' logic

and values; provides challenges and ways to help them achieve those challenges;
responds to student voices; and, as a result ofthe above, empowers students.'"^

However, as important as concentrating on the creation of an empowered
learner is—and it certainly is a necessity—concentrating on the learning
environment solely within academic support programs can only be a partial

solution. ASPs are usually marginalized operations, often not considered a vital
or even valuable aspect ofthe law school's offerings. ''° As such, the exclusive
use and identification of alternative pedagogical approaches within ASPs may
even serve to stigmatize such approaches within the larger law school population,

student and faculty alike, as not "real" or "rigorous" law school education.

Thus, finding ways to empower marginalized populations of students is not
solely a pedagogical undertaking, for it has profound ideological and political

connotations as well. If the root of some students' alienation lies embedded in
the ideological and political underpinnings ofthe way law is seen by those who

lawyers and legal academicians enter the system and influence it. The underlying

purpose of most Academic Support Programs ("ASPs") is to diversify the legal

profession by helping more diverse students gain admission into, remain and excel in,

and graduate from law schools, so they can pass a bar examination and gain entry into

the legal profession.

Id. at 840 (footnotes omitted). See also Slotkin, supra note 54, at 569 (focusing on the

metacognition learning theory to address the "isolation, language and writing difficulties and

socioeconomic disadvantage" of minority students).

1 07. Professor Lustbader refers to these frameworks as substantive and syntactical schemata.

Thus, ASP teachers will have students take relevant information in their lives to help them develop
schemata. See Lustbader, supra note 88, at 848-51.

108. See id. at 856; see also Roach, supra note 1 2, at 682-83, 696 (stressing the importance

ofteaching through the application oflearning theory so that students learn "how to learn," become

independent learners, and utilize self-directed learning strategies).

109. Lustbader, supra note 88, at 847; see also Paula Lustbader, Teach in Context: In

Response to Diverse Student Voices to Enhance Learningfor All Students, contained in Materials

of the 1997 Annual Conference of the Institute for Law School Teaching, TEACH TO THE WHOLE

Class, Effective Teaching Methods for a Diverse Student Body. Professor Lustbader

explores ways to create a more inclusive community through pedagogical approaches such as

contexturalized learning and teaching strategies such as experiential, writing, or collaborative

exercises. For an interesting discussion of her approach to learning theory, see her explanation of

the "Learning Progression" in Lustbader, supra note 10, at 322-23.

1 10. See Cerminara, supra note 7, at 250 (noting the marginalization of ASPs).



766 INDIANA LAW REVIEW [Vol. 33:737

teach and practice it, then the markers by which one evaluates a student's
"adjustment" to this alienating and often hostile environment will determine the

ultimate effectiveness of the "support" the student receives. Indeed, if one
believes that something important may be lost if a student completely adjusts to
this environment, then a disjunction between the ideological effect of ASPs on
its students and the pedagogical one is, for many students of color, a potentially
dangerous one. The solutions to both concerns must be informed by the other to
truly empower those whom ASPs purport to serve—particularly those who are
law students of color.

ASPs have been seen as performing a variety of roles within the larger
institution such as: influencing admissions decisions; providing resources for the

larger faculty; building a community which improves the general atmosphere of

the institution and profession; influencing pedagogy; and helping students to

"adjust to a culture where the students' differences based upon factors such as

race, class, disability, gender, and/or sexual orientation, can lead to feelings of

stigma, disenfranchisement, and alienation."'" ASP professionals concentrate
much of their energy on the last role because they are well aware of the
connection between academic success and "students' feelings of self-worth.

"'^^

Indeed, the alienation from law school culture and values that many students of
color experience has a profound effect upon their academic performance. ' '^ Yet,

there is relatively little attention paid to the ways in which ASPs can
conceptualize their activity in the other areas ofthe institution—influencing the
pedagogical atmosphere and curricular content of the law school itself.

111. Lustbader, supra note 88, at 842-43 (footnotes omitted).

1 12. Id. at 842 ("ASPs share a common mission: to provide diverse persons access to legal

education, help create community, help diverse students succeed and excel academically, and most

importantly, preserve students' feelings of self-worth and value.").

1 13. Lustbader observes that many diverse students express the concern that "in order to

succeed they must lose their voices and give up their values." Id. at 858. Therefore, she suggests

that it is necessary to find ways to allow students "to keep their own voices, so they can become bi-

cultural." Id. Moreover, because many ofthem expend energy "just keeping themselves intact and

holding their place," there is correspondingly less energy to devote to academics. Id. (footnotes

omitted). See also Mertz et al., supra note 76, at 85:

If all of us possess multiple senses of identity, if all of us at times must translate across

diverse "worlds" (perhaps in ways of which we are only dimly aware), then perhaps

those for whom these processes are a continuing, urgent necessity can be our best
teachers about the way context and identity shape human interactions. . . . One aspect

of this perspective that emerges from expertise at crossing contexts is a keen

understanding of a kind of multilingualism—^that the same person can and often does
speak differently in different contexts, so that ifwe observe her in only one context and

imagine that we have a complete picture, we will be mistaken.

Id



2000] SEPARATING SUPPORT FROM BETRAYAL 767

C. Transformative Process Is Both Individual and Environmental

The tendency to separate the task of giving support to law students of color
and the critique and reformation of traditional law school pedagogy and of the

law itself is striking in several ways. In the Preface to its publication about

Academic Assistance Program, the Law School Admission Council ("LSAC")
cites the work ofthree educators—Paulo Freire, Ivan Illich, and Arthur Pearl—as
providing the "principal pedagogical foundation" for its discussion ofacademic

support."'* The Preface acknowledges Freire' s focus on the importance of
teachers "meet[ing] students on equal ground"; Illich's admonition to

"demystify" the educational experience; and Pearl's emphasis on the necessity

to develop a student's "sense of competence and belonging.""^

The basic content ofthe LSAC publication is an overview ofthe issues faced
by ASPs, as well as concrete suggestions for how to implement or improve a
program. ^ '^ However, the substantive pedagogical focus ofthe piece is contained

in a number of sections. In the chapter dealing with educational theory, the
authors emphasize that, to the extent ASP program staff understands cognitive
process theory, the programs "will be better able to provide academic assistance

services.""' The rest of the discussion of education theory consists of short
descriptions of specific learning skills that the LSAC sees as the areas in which
ASPs should focus: reading comprehension, concept analysis, mapping, and
metacognition."^ The section concludes with the admonition that the "primary

114. Law School Admission Council, An Introduction to Academic Assistance
Programs 1-2(1 992) (a report from the Minority Affairs Committee ofthe Law School Admission

Council) [hereinafter LSAC Publication].
115. Id,

1 16. The publication is divided into six chapters and a preface. The chapters are entitled

Introduction; Program Implementation; Education Theories and Teaching Techniques; Summer

Program; School-Year Program; and Program Evaluation.

1 17. LSAC Publication, supra note 1 14, at 11. Cognitive process theory is defined by the
LSAC as the recognition of two types of mental processes: cognition and metacognition:

Cognitive mental processes are called upon to address the daily problem-solving

requirements of life, while metacognitive processes are used to manage, plan, and

evaluate cognitive applications. Cognition may be seen as involving at least five

separate mental processes: encoding, inference, mapping, application, and response.

Further it appears that three types of mentation are critical to the type of advanced

learning that is required of law students: data choice (selective encoding), data

organization (selective combination), and data relationships (selective comparison).

Id. (citations omitted).

118. The LSAC encourages the use of the "Construct technique" of teaching reading
comprehensipn in which there are three stages of instruction along with constructions ofschematic

illustrative diagrams: the first, which asks students to identify relationships between the principal

topic and major subtopics (called "superordinate concepts"); the second, in which students are

asked to understand the relationship between subordinate concepts and the superordinate concepts;

the third stage involving identification of specific material to assist in understanding the concepts



768 INDIANA LAW REVIEW [Vol. 33:737

goal of an academic assistance program should be to help students develop the

abilities that are necessary to independently proceed with their legal

education.""' Intrinsic to this is the understanding of students' "metacognitive

skill levels and the development of strategies to address their learning

deficiencies."'^^

It is without question that the major point of providing academic assistance

is to enable students to survive and excel in the law school environment. Thus,

giving students the tools to achieve this specific goal is and should be paramount.

Anything less would be irresponsible.

Yet, intrinsic to and underlying the pedagogical vision of all three of the

educators cited by the LSAC is their insistence that the goal of education is to
empower students through education to begin the project of transforming the
larger institutions and society. The notion that academic support and innovation
is to transform only students and their learning deficiencies, while leaving the

institutions which have contributed to those deficiencies fundamentally

untouched, unobserved, and unchanged is antithetical to their work. In fact, part

ofthe process to help students navigate and improve within their environment is

the recognition that their participation will help to improve/change the

environment itself.

It would be ironic if the interpretation of their writings was to lead to a
project whose end result was trying to transform students to adapt, conform, and
thereby "succeed" in institutions whose atmosphere may be hostile to them.
Pearl, in fact, takes dead-aim at programs and educators who focus solely on
"improving" students without questioning the values and approaches of the

institution in which they learn: "Throughout this book [The Atrocity of
Education^ we encounter in various guises the educational engineer who would
have us upgrade education by doing what we are doing now—only better. . . .
This type of innovator tells you how to do things, but he doesn't question
whether they should be done at all."'^'

Pearl critiques the Upward Bound Program, a program similar in many
respects to some ASPs in which high school inner city youth, often of color, are
brought to a college campus for a summer to undergo academic stimulation,
individual tutoring, and remedial work in preparation for college. '^^ Yet, Pearl
points out that the need for such programs "can [only] be understood only as a

candid admission that traditional educational establishments and approaches have

identified. Id. at 11-12.

Concept analysis is described as comprising "data comprehension, analysis, and retention."

Id. at 12. Mapping is presented as "a learning strategy that rests on the premise that all text can be

structured in a hierarchical fashion." Id. (citations omitted). Metacognition is "the examination

and understanding of one's own cognitive process. Id. at 13.

119. Id.

120. Id.

121. Arthur Pearl, The Atrocity of Education 15(1 972).
122. SeeiddHlX.



2000] SEPARATING SUPPORT FROM BETRAYAL 769

failed."^^^ Indeed, according to Pearl, such programs "recapitulated the evils that

have befallen the disadvantaged throughout their school career." '^"^ His focus on

a student's sense of belonging is, in fact, an express call to action to use

education to transform a society and an educational system that "overwhelms,

depersonalizes, and renders useless." '^^ Thus, Pearl's pedagogical premise

proceeds from his conviction that those support programs which legitimatize the

circumstances that cause academic failure in the first instance must be

dismantled.

The context of Illich's admonition to demystify the educational experience
is even more radical than Pearl's and certainly pertinent to the direction and
purpose of ASPs. His is a withering criticism of the very notion of curriculum
itself.

'^^ If there is anything within the traditional law school canon that would

horrify Illich, it would be the reliance and perpetuation of the universal sacred
cow ofthe first year curriculum of law school. '^^ He states:

School sells curriculum—a bundle ofgoods made according to the same
process and having the same structure as other merchandise. . . . The
result ofthe curriculum production process looks like any other modem
staple. It is a bundle of planned meanings, a package of values, a

commodity whose "balanced appeal" makes it marketable to a
sufficiently large number to justify the cost of production. Consumer-
pupils are taught to make their desires conform to marketable values.*^*

In Illich's view the insistence on a rigid curriculum is another mechanism by
which societal norms are promulgated to control individual creativity. His vision

ofthe end result of"prefabricated curriculum" echoes much ofthe contemporary

123. Id.

124. Id.

125. /^. at44.

1 26. See IVAN ILLICH, Deschooling SOCIETY 1 2 ( 1 97 1 ). He states:

Curriculum has always been used to assign social rank. At times it could be

prenatal: karma ascribes you to a caste and lineage to the aristocracy. Curriculum could

take the form of a ritual, of sequential sacred ordinations, or it could consist of a

succession offeats in war or hunting, or further advancement could be made to depend

on a series ofpreviously princely favors. Universal schooling was meant to detach role

assignment from personal life history: it was meant to give everybody an equal chance

to any office. Even now many people wrongly believe that school ensures the

dependence of public trust on relevant learning achievements. However, instead of

equalizing chances, the school system has monopolized their distribution.

Id.

127. Illich's view is that curriculum is essentially an abstraction disassociated from both

learning and competence: "School is inefficient in skill instruction especially because it is

curricular. In most schools a program which is meant to improve one skill is chained always to

another irrelevant task. History is tied to advancement in math, and class attendance to the right

to use the playground." Id. at 17.

128. /^. at41.



770 INDIANA LAW REVIEW [Vol. 33:737

criticism oftraditional law school curriculum: "[Students] no longer have to be

put in their place, but put themselves into their assigned slots, squeeze

themselves into the niche which they have been taught to seek, and, in the very
process, put their fellows into their places, too, until everybody and everything

fits."'''

But, perhaps it is Freire who most explicitly admonishes those of us who
teach to put our teaching into a larger societal context. According to Freire,

while the "teaching task" demands qualities such as intellectual rigor,
epistemological curiosity, love, creativity, and scientific competence, it also

requires "the capacity to fight for freedom, without which the teaching task
becomes meaningless."'^^ This is the context of Freire's emphasis on "meeting
students on equal ground."'^' He posits a dialectic movement between teachers
and students in which teaching and learning become "knowing and
reknowing"—learners learning what they do not know, teachers releaming what
they knew previously.'^' Understanding this process of teaching demands
"political discipline" because democratic education "cannot be realized apart

from an education of and for citizenship" which is a political construction

demanding "commitment, political clarity, coherence, decision."'" Freire
observes-—echoing the sentiments articulated by Arthur Pearl—^that oftentimes
dedicated professionals do not perceive that they become agents of "oppressive
cultural action" when they emphasize a 'focalized \iev/ ofproblems rather than
[on] seeing them as dimensions ofa totality^^^^ That is, educators do more harm
than good when their attention is directed only at the smaller community which
is viewed as a totality in itself rather than seeing it as part of a larger entity.

'^^

His criticism is directed at "those who do not realize that the development ofthe
local community cannot occur except in the total context ofwhich it is a part, in
interaction with other parts."'^^ Deborah Post puts it another way:

129. Id.dxm.

130. Paulo Freire, Teachers AS Cultural Workers: Letters to Those Who Dare
Teach 4 (1998). Freire states:

To the extent that I become clearer about my choices and my dreams, which are
substantively political and attributively pedagogical, and to the extent that I recognize

that though an educator I am also a political agent, I can better understand . . . and

realize how far we still have to go to improve our democracy. I also understand that as

we put into practice an education that critically provokes the learner's consciousness,

we are necessarily working against myths that deform us. As we confront such myths,

we also face the dominant power because those myths are nothing but the expression of

this power, of its ideology.

A/, at 41.

131. LSAC Publication, supra note 1 1 4, at 1

.

1 32. Freire, supra note 1 30, at 63-68.

133. Mat 90.
1 34. Freire, Pedagogy, supra note 85, at 1 37-38.

135. Seeid.dXU%nM.

1 36. Id. It is quite predictable that the reliance on the theories of these three educators has



2000] SEPARATING SUPPORT FROM BETRAYAL 77

1

I hope I am teaching a different skill. I want [my students] to think about
the relevance oftheir own values and beliefs to practice; I want them to
understand that practice necessarily includes political andmoral choices.
I want them to consider what justice means and to understand the
imperatives ofjustice. We don't talk about justice often enough in law
school anymore; we refer to it euphemistically as public policy. . . .
Many of my colleagues who some call "outsiders". . . consider the
revelation ofunstated but powerful assumptions underlying doctrine and

theory an important educational objective. And we are accused of
teaching something other than law because we do.'^^

The pedagogical lessons, then, ofthese educators are clear. Merely to groom
students—particularly students ofcolor or those at academic risk—^to participate
"successfiilly" within the larger environment, particularly when that environment
itself may cause a significant portion of the dysfunction is ultimately
counterproductive and actually perpetuates and exacerbates the conditions of

failure. There is a critical and ongoing necessity to create support environments

where alienated or struggling students may experience individualized relief and
learn better ways to cope with the peculiar and particular methodology of
traditional law school curriculum. However, without concurrently attempting to

change the totality of the law school context and atmosphere, the endeavor is

naive and maybe even self-defeating. In addition, perhaps ironically, an
accommodationist approach will also do no more to improve the perception, as
well as the reality, ofASPs' marginalization from the larger institutions, since it

will reinforce the perception that all ASPs really do is to try make the work
"easier" for academically struggling students.

III. ASP Pedagogy Should Include Creating Communities of Color
AND Teaching Students to Have and Utilize a

"Multiple Consciousness"

While much has been written and suggested about improving law schools'

drawn fire from some in the academic support community. Paul Wangerin criticizes the citation

ofFreire's work by the Law School Admission Council because, according to Wangerin, Freire and
his followers suggest "'students fail principally because of the weaknesses or the wickedness of

teachers or the educational establishment itself" Paul T. Wangerin, A Little Assistance Regarding

Academic Assistance Programs: An Introduction to Academic Assistance Programs, 21 J.

CONTEMP. L. 169, 171 (1995). While Wangerin concedes that "some teachers" within the legal

education community may accept Freire's premises, he concludes, tautologically, that "[i]t probably

is safe, however, to say that most teachers in the legal education community disagree on a

fundamental level with what clearly is the driving premise ofthis book." Id. Ofcourse, one would
assume that the legal education "establishment"—one which has been criticized for its lack of
innovation, sensitivity, and perspective—would not look kindly upon the work ofan author whose
entire point is to empower students to change entrenched institutions.

137. Harmon& Post, supra note 1 , at 1 9-20 (citations omitted).



772 INDIANA LAW REVIEW [Vol. 33:737

curricula, the prospect of dramatic and immediate change is probably not

realistic, and the struggle to change law schools and, ultimately, how the law is
viewed, created, and implemented will be a protracted one.'^* Indeed, only the

most optimistic of educational visionaries would believe that the project of
influencing the legal academy to alter its viewpoint, perspective, composition,
and pedagogy will be easy. Thus, it is important to find areas in which ASPs will
be able to influence the larger institution in a more immediate sense while
simultaneously participating in the longer range goal of influencing the

entrenched pedagogy. There are distinct but related areas in which such attempts
may be made without undue institutional structural upheaval.

The first task for ASPs is to advocate that law schools as institutions find
systemic ways to build communities which can withstand the pressures of the
stigma that attaches to ASP participants, particularly those ofcolor. Second, and
perhaps most important, there should be an introduction of a critical analysis of
the law and legal institutions—including a critique of law school pedagogy
itself—into the substance of support curriculum and the tutorial process itself.

A. Building Communities as Pedagogic Method

With respect to the building of community, one of the major issues that
confront students who are connected to ASPs is that of the stigma—real and
perceived— placed upon its participants and collaterally, upon all students of
color whether in ASPs or not.'^^ Stigma associated with participation in ASPs

138. The critique of law school pedagogy has not gone unaddressed by those invested in

maintaining the traditional approach and worldview. See, e.g., Arthur Austin, The Empire

Strikes Back: Outsidersandthe StruggleoverLegal Education ( 1 998). Professor Austin

dismisses critical critiques of law and pedagogy as a "pop culture vision of scholarship and law"

or "PC Newspeak." Id. at xvi. According to Austin this state of affairs is brought about by "race

separatists" spouting "propaganda," trivial "Tenured Radicals" or "the feminist movement" that

wishes to "[bjalkanize legal education." Id. at 186, 192, 200. This is, of course, in contradiction

to the "analytical evaluation, rationality, and objectivity" so valued by Professor Austin (and, one

presumes, of which he considers himself to be a model) that he articulates as the "core values" of

traditional legal education. Id. at xvi. The imminent future would be, according to Austin's

illuminating view, a situation where economic exigencies would allow the "Empire" given its

present superior power and influence within the legal academy an unfettered opportunity to close

completely the hiring doors to legal academia to these kinds of "Outsiders," deny tenure to those

writing scholarship that does not meet with the "Empire's" approval, and revoke the notion of

tenure itself to discourage those who would do so after receiving tenure and expose them to

dismissal for such transgressions. Id. at 197-98.

I also note here without further comment: Deborah Post's cogent observation that "much of

what is expressed by white males . . . these days is not reasoning at all but expressions of

belief—blind faith, maintained in spite of all evidence to the contrary. Defiance of reason is the
response of most white males to any challenge to their power, to their sense of entitlement."

Harmon & Post, supra note 1, at 127-28.
139. See, e.g., Cerminara, supra note 7, at 255-56 (noting that the label of academic support



2000] SEPARATING SUPPORT FROM BETRAYAL 773

is one of the "most frequently discussed issues faced by schools interested in

establishing or maintaining an academic assistance program."''**^ However, given

the social attitude toward affirmative action in general, attitudes toward certain

ethnic communities in particular, and given the structure and racial makeup of
many ASPs, it is perhaps inevitable that some stigma will attach to students who
participate in these programs.''*' Indeed, even the terms of the present dialogue

of affirmative action which differentiates and counterpoises "diversity" from

"merit" may contribute to the stigma.
Thus, since it may be impossible to eliminate or even minimize stigma

entirely, at least for the foreseeable future, it is important to create ways to
minimize its effect on the students themselves. While some might argue that the
obvious solution to combat stigma is academic success in the traditional sense,

it has been noted that "academic assistance programs, which arguably bring

greater balance to law school playing fields, are often characterized as 'remedial'

if they are marginally successfiil, or are challenged for providing an 'unfair

advantage' if they are very successftil."'"*^ Moreover, the issue of how best to
succeed in accomplishing that goal, because perceptions ofstigma—both real and
imagined—have an effect upon academic performance, is still left unaddressed
by identification of the end goal of "success" within the institution.

It would be logical to assume that a sense ofgroup solidarity would function

as a protection against the effects of stigma. However, it is important to keep in

mind that while participation in community activities may restore a sense of
communal identity and self-worth, it may come at the cost of study time. The
"culture ofresistance" to law school aculturalization "may simultaneously make
it possible ... to survive law school and make such survival more difficult."'"*^
In fact, some point out that an attempt to recreate community may also have other
dangers such as identifying with others so much that a student may feel
personally injured, angry, or discouraged if another does not perform well, or

may feel overwhelming responsibility aboutthe fact that others' success may ride
on their own.'"*^ In addition, like professors of color, students of color are often

doubly burdened with the roles that tokens must often play, and the expectations

that are placed upon them that are not placed upon other students.
'"^^

Despite these dangers, it is important to create and maintain a separate

itself may be stigmatizing and "[tjhose who participate in academic support programs are often

stigmatized.").

140. LSAC Publication, supra note 1 14, at 5.
141. See, e.g., Darlene C. Goring, Silent Beneficiaries: Affirmative Action and Gender in

Law SchoolAcademic Support Programs, 84 Ky. L.J. 94 1 , 98 1 ( 1 996) (finding that stigmatization

is not a by-product ofacademic support, but a "systemic component oflegal education" that is only

exacerbated by participation in such programs).

1 42. ^SAC Publication, supra note 1 1 4, at 5.
143. Greenberg, supra note 77, at 103.

144. See, e.g., id. at 103-04.

145. See Espinoza, supra note 96, at 291-92 (describing the ways in which people of color

are perceived as "symbols for their race" and the pressure that come along with that label).



774 INDIANA LAW REVIEW [Vol. 33:737

character between tutorial programs designed to improve law school exam
results, and programs designed to make underrepresented populations in the law
school community succeed in the environment. Students who are admitted under
"diversity rationales" must be viewed as a group ofstudents who are not defined
automatically nor primarily as students who are "at risk academically," but as a
particular and unique community ofstudents who bring something important and
unique to the law school. By lumping diversity students and Academic Support
together under one rubric, the cure for stigma may be worse than the disease.
Academic support may be important for students ofcolor not because they have
less "merit," or because they are more deficient academically, but because the
social, pedagogical, cultural, and political environment of law school is more
difficult for them.''*^

Peter Alexander has discussed the importance of creating a community
among law professors of color within the legal academy. ^"^^ He catalogued the
ways in which law professors ofcolor were marginalized, silenced, devalued, and
frustrated within their larger institutions through the context of a semi-

fictionalized recounting of a conference of legal scholars of color. ^"^^ The
conference was entitled "Celebrating Community."^"*^ He explained how
important the notion of having a safe and familial space is for those operating

outside the mainstream ofthe our institutions:

We were a collection of teacher/scholars—most, but not all, of whom
were people of color—^who came together to celebrate our sameness as
well as our diversity. Many, like me, arrived at the conference planning
to learn more about . . . scholarship Others attended the conference
because of a fierce need for community and for the opportunity to
connect with people who looked like them, thought like them, traveled
a professional path that was similar to theirs, and understood them.
Everyone at the conference connected with one another, and we
celebrated the recognition of our "family" within the legal academy. It

was a memorable weekend, filled with shared experiences and a true
sense of solidarity.

'^°

Yet, as important as it is for teachers and legal scholars of color to

experience a sense of belonging in order to function most effectively, the same

146. "Support programs must focus less on the remedial and more on acculturation." Id. at

292.

1 47. See Peter C. Alexander, SilentScreamsfrom Within theAcademy: LetMyPeople Grow,
59 Ohio St. L.J. 1311(1998).

1 48. See i<i. at 1 3 1 2 n. 3 . It should be noted that "over 30 percent ofminorities on the tenure

track in 1981 left law teaching by 1987, compared to 17.1 percent of whites." ABA,MlLESTOGo,

supra note 52, at 1 1

.

1 49. Alexander, supra note 1 47, at 1 3 1 2.

150. Id. at 1327. Law teachers of color
,
particularly women of color, are often singled out

for criticisms that are not leveled against other professors. See, e.g., Owsley, supra note 9, at 5 16-

21.



2000] SEPARATING SUPPORT FROM BETRAYAL 775

longing must be even more intense for law students of color who are certainly
without any of the benefits and privileges of professor status. Moreover, the

strength that comes with this particular sense of shared community is not one
based solely upon a commonality ofracial experience. It is also derived from the

sense that it is the structure, dynamic, vocabulary, and values of the institution

itself that lies at the root of one's professional and personal alienation. An
institutional awareness of its own biases cannot be communicated effectively by
student-run organizations such as an Asian Pacific Law Students Association, or
a Women's Law Student Association. While important as sources of support,
these student groups cannot be a proxy for an institutional recognition ofinherent

contradictions that may exist for some in the student population. Indeed, there
has been a proposal to create a separate law school solely for women. '^' In the
alternative, there have been proposals to create, within co-ed institutions,

separate programs for women or summer programs open solely to women
students.'"

These kinds of proposals suggest that there must be an institutionally-

supported mechanism that acknowledges the particular anomalies that law school
education contains, as long as traditional legal pedagogy and the racial and

gender makeup of law school faculties remain essentially unchanged in the
majority of law schools.*" Indeed, it is the remedial structure and focus ofmany
support programs that may send a particularly negative message. '^'* As Professor
Cecil J. Hunt, II, observes,

[t]he bitter irony is that an academic support program does not have to

be remedial in focus and, therefore, stigmatizing in result. It is quite

possible to design, structure, and implement an academic support

program that is empowering and challenging in both tone and content.

Such programs tend to build minority students up, rather than weigh

them down.'^^

151. See Brown, supra note 59, at 1

.

152. See id at 35.

153. This does not necessarily mean solely creating a cadre of student tutors who form

personal bonds with their charges, although the Pre-Admission Program does use student tutors.

See Slotkin, supra note 54, at 573-75. If tutors are part of the support system, it is necessary that

"role modeling" be on different levels—academic success, personal integrity, community
involvement. The point of building community and "role modeling*' among students of color

should be to create a positive countemarrative.

In 1 986, minorities were 3.5% ofall tenured law faculty and 11.1% oftenure-track faculty, but

as of 1995, only 13.1% of full time law teachers were minorities. See supra notes 52-54 and

accompanying text.

1 54. ^ee Cecil J. Hunt, II, Guests in Another 's House: AnAnalysis ofRacially Disparate Bar
Performance, 23 FLA. ST. U. L. REV. 721, 782 (1996).

155. Id. St 783 . Professor Hunt describes the academic support program at Touro Law School
which was created for all minority law students without regard to statistical indicators, involving

participation by minority law professors and minority upper-class students as tutors, where "the



776 INDIANA LAW REVIEW [Vol. 33:737

For example, the Pre-Admission Program of the William S. Richardson
School of Law at the University of Hawaii has had a remarkable history in its
twenty-four years ofoperation. '^^ It was designed to increase the diversity ofthe
law school's student population such that it reflected the diversity of Hawaii's

population as well to increase the number of lawyers who had a connection to
and practiced in Hawai'i's communities that were underserved.'"

Under the late Professor Judy Weightman, the Pre-Admission Program
Director from 1988 to 1998, there was a great emphasis placed upon building a
sense ofcommunity among the Pre-Admission students, as well as an emphasis
placed upon the social responsibility that was implicit in the Program ' s existence.
This is reflected in the connection that many ofthe Program's alumni and upper
level students maintain with those who newly enter the program. Professor
Weightman' s approach was to combine a tutoring curriculum with a consistent
advocacy for the interests of the Pre-Admission students within and graduated

from the law school. She also focused on a conscious effort to instill pride,

community and identification of Program participants with one another, the
communities from which they came, and the graduates of the Program.'^*

sense of stigma is significantly reduced and the sense of empowerment is greatly enhanced.'' Id.

at 783 n.346.

156. As I have only been the Director of the Pre-Admission Program for a short time, it is

with a great sense of humility that I describe its past successes as I made no contribution to them.

157. As of 1973, the year before the Pre-Admission Program began, persons of Hawaiian

descent represented only 2 percent of the Hawaiian bar, and those of Filipino ancestry less than 1

per cent. As of 1997, Hawaiians or part Hawaiians represented 9 percent of the bar and Filipinos

2 percent ofthe bar. Despite the still significant underrepresentation ofthese two groups, much of

the increase in the percentages is related to the Pre-Admission Program. Indeed, the

matriculation/graduation rate for Program students has ranged from 75% to 100% and is generally

comparable to the graduation rates of the law school's other students.

Candidates for the Pre-Admission Program are not eligible to matriculate into the law school

under the law school's traditional criteria, but are nevertheless rigorously selected from criteria

including among other considerations: LSAT and undergraduate GPA scores, personal motivation,
public leadership, social commitment, maturity, history of overcoming disadvantage, exceptional

personal talents, work or service experience particularly in providing service to Hawaii's poor, as

well as ethnic background. There is no single factor that overrides any other except that admission

must conform to the goals and purposes of the program. Pre-Admission students are selected

separately after the bulk ofthe "regular" admission decisions are made. As such, they do not "take

the place" of an applicant who would otherwise have been admitted under the traditional criteria.

158. When I took over the program in 1998 after Professor Weightman's passing, I was

immediately struck by the sense of ohana (family) within the program, and the students'

commitment to it and to each other. I was also struck by how supportive of the program and its

students the law school's faculty and administration were. I attribute much of the success of the

program to that environment created by the administration and faculty of the law school, to

Professor Weightman's vision and energy, and, ofcourse, to the commitment, sacrifice, and ability

of the Pre-Admission students themselves.



2000] SEPARATING SUPPORT FROM BETRAYAL 777

Although there are students from various ethnic communities among the entire
student body of the law school—^the William S. Richardson School of Law has
the distinction of being one of the few law schools where students of color

outnumber white students—it is the students from the Pre-Admission Program
who often take the lead in bringing awareness of issues such as those concerning
Native Hawaiian rights and the larger social issues to the law school community.

Perhaps most significantly, there is a culture and tradition within the Program

that emphasized the ultimate goal was not solely for Pre-Admission students
simply to "do well" or even to graduate, but for Pre-Admission students to lead

the law school and to work for societal change as lawyers after graduation. '^^ In

1999 alone, among other noteworthy achievements, a different individual Pre-
Admission or former Pre-Admission student:

*was the President of the Student Bar Association;

was the Secretary ofthe Student Bar Association;
published a Note in the University of Hawai'i Law Review;
was a member of a Regional Championship moot court team;
was selected by the graduates to be the Class Speaker at graduation;
achieved the highest grade in the first year Civil Procedure course;

helped form the first Hispanic/Black Students organization at the law
school;

was elected by the entire student body to be the voting student
representative on the Faculty Admissions Committee.

In addition, Pre-Admission and former Pre-Admission students were active

in Native Hawaiian issues such as the struggle over tuition waivers for Native

Hawaiians at the university, and took on active roles in cultural activities such

as the law school's hula halau (which performs at the law school's official

functions including graduation) and organizing trips to the island ofKaho'olawe,

a symbol of Hawaiian sovereignty. Pre-Admission and former Pre-Admission

students also volunteered to translate for newly arrived immigrants at the local

legal services organization dealing with immigration issues. Finally, Pre-

Admission alumni have gone on to become state legislators, judges, as well as
successful public and private attorneys.

There is a recently formed Pre-Admission Association consisting primarily

of law school alumni who were Pre-Admission students. *^° Their first public
function in the spring of 1999, was a memorial commemoration of the
contributions ofProfessor Weightman to their lives and to the legacy ofthe law
school.

This is the kind of function that ASPs can play—^to be not only a means of
tutorial support, but that part of the institution which sees as its function the
performance of a critique of the institution itself. Ironically, it can and should
play a counter-narrative role within the law school to help achieve a stronger and

1 59. Pre-Admission students after one year in the Program matriculate into the "regular" full-

time program.

160. The acronym for the Pre-Admission Association and part of its official name is "PA'
A"

which in Hawaiian means "firm" and "solid."



778 INDIANA LAW REVIEW [Vol. 33 :737

more capable student body even in the terms that the law school itself values.
Indeed, ASPs can, and must, simultaneously enable students to function in the
traditional environment, and yet stand apart from the institution to engage in a
critical analysis ofwhat law and law school is about. This will help law students
understand that it is "not them" alone who must "own" the problems of legal
pedagogy, but that their law school and its professors must at least share the

responsibility.'^'

B. "Multiple Consciousness
'* as an Aspect ofAcademic Support

This should not only be in the context of creating and supporting "safe"

spaces within the institution for students ofcolor, but it should be reflected in the

substantive curriculum of an ASP program itself. That is, the ASP curriculum
should have some critical analysis of legal institutions and legal pedagogy. '^^ It
is this component that may be even more important than fostering a sense of
community because it is a recognition ofthe necessity for law students to engage
in what Mari Matsuda terms a "shifting of consciousness," one that "produces

sometimes madness, sometimes genius, sometimes both,"'^^ In her brilliant piece

on multiple consciousness as jurisprudential method. Professor Matsuda
articulates how consciousness operating on different levels—as legal formalist,
as person ofcolor, as woman, etc.—can aid not only the practitioner, but the law
student herself in understanding how the law operates and how it can be
utilized.'^ Multiple consciousness is the kind ofconsciousness that understands

the place, function and skills of traditional legal analysis while simultaneously

valuing and recognizing experience, emotion, and oppression. It may allow the
student ofcolor to do more easily what Matsuda observes law students who excel
do—^"detach" themselves and approach law from the particular viewpoint
demanded by traditional law school pedagogy without sacrificing and placing in

161. Put another way, "[wjhat I'm proposing is to attack the problem of the

perspectivelessness or the apparent neutrality or the abstraction of legal studies by making the

classroom into a place where students learn doctrine and legal argument in the process ofdefining

themselves as political actors in their professional lives." Wells, supra note 3, at 4.

162. It is interesting to note that there is scholarly opinion advocating that a component of

critical theory be incorporated as a requirement into the first year curriculum, and most particularly

in legal writing courses. Professor Karyn Stanchi writes:

Students must learn to use critical legal thinking in the context of lawyering—^to use
critical thinking in predictive writing, persuasive writing, legal analysis, oral advocacy,

negotiation, and client representation. And, students must be exposed to some critical

theory at the same time that they are learning conventional legal analysis and language.

At a minimum, this would teach students to recognize bias in legal language and would

validate students who feel uncomfortable with legal language. It would also educate

"insider" students about the limitations and biases of the law and legal language.

Stanchi, supra note 6, at 55.

163. Matsuda, supra note 3, at 298.

164. See id..



2000] SEPARATING SUPPORT FROM BETRAYAL 779

conflict the sense ofthemselves, their community, their lives. ^^^ As Matsuda puts
it, "[h]olding on to a multiple consciousness will allow us [and students] to
operate both within the abstractions of standard jurisprudential discourse, and

within the details ofour own special knowledge."^^^ This metacognitive process
ofordering and contextualizing traditional legal doctrine will not only be helpful

with respect to helping students understand material but also to understand their

relationship to the material in a more meaningful way.

Professor Paula Lustbader conceptualizes this disjunction in a similar way:

Often, to get the right answer, students must argue that mainstream

values are correct Mainstream values [for example] presuppose that

all consumers can shop around and bargain for the best deal because of

competition in the marketplace. Unfortunately, that is not reality in a

highly class-divided society. Many law students have lived under
powerless conditions or are at least more willing to recognize them.
However, in order to get the "right" answer, the student must argue to

the professor (who statistically most likely has lived in a position of
power all his life) that the contract terms are not unconscionable, when
the student's own conscience is telling him or her that the social
conditions that force the consumer to sign the contract are patently

unfair.'^^

She continues by stating that in teaching students how to "argue for . . .
mainstream values, we are not condemning them to a position ofhaving sold out
their own value system."*^^ Thus, it is necessary "to be explicit" about how law
schools represent reality from a particular perspective and that one of the tasks

of future lawyers is to change the system to recognize new and different
perspectives and values.

^^^

However, "being explicit" and developing "multiple consciousnesses" means
more than teachers simply telling their students about the narrowness of the
world oftraditional legal analysis. It also demands that teachers introduce their
students to some of the literature and scholarship that explains how and, more
importantly, why that world is so narrow. Legal academic support should

165. Professor Pamela Edwards describes her law school strategy as follows:

During my first year of law school, not only was I presented with new concepts, but I
was also faced with values that conflicted with the strategies and values that had worked

well for me prior to entering law school. I knew that it was important to understand
how to "think like a lawyer," however, I did not want to abandon those previously

successful strategies and values that seemed to conflict with that learning. I consciously

developed what I considered to be a split personality. I would use my "new" knowledge

in law school, while continuing to use my old strategies in "real" life.
Edwards, sup^ra note 97, at 758.

166. Matsuda, jwpra note 3, at 299.

1 67. Lustbader, supra note 1 0, at 344 n.73

.

168. Id. at 346 n.75.

169. Id.



780 INDIANA LAW REVIEW [Vol. 33:737

include the creation of substantive course material that utilizes the emerging

critical scholarship on legal pedagogy. It means convincing students (and
perhaps, someday, brethren legal academicians) that understanding the critical

approach to pedagogy will help many of them function more effectively and
consequently do better academically within the traditional atmosphere of law

schools.

Creating community, combatting stigma, and learning better analytical tools

are not separate tasks. They cannot be seen or addressed separately for students
of color and those who identify with subordinated communities in our society.
ASP curriculum and structure should be a critical project that (1) acknowledges
the necessity that doing well within the present law school environment,

particularly for students from subordinated communities, requires a detachment

from a sense of self; (2) has the focus of creating alternative and supportive

communities in which students not only feel "safe" but also have a base from
which they may seek to affect changes in the institution, (3) offers within the
substantive content ofthe tutorial curriculum itselfsome critical overview ofthe
law and law pedagogy, and (4) sees the academic support field itself as a critical

project for advocating change within the legal academy and the society as a
whole.

By recognizing and utilizing the interconnections between these phenomenon
in an ASP curriculum and structure, ASPs will better serve their constituency as
law students and emotionally healthier human beings. Indeed, our academic
support community has an almost fiduciary duty to our students to make sure that
in the process of enabling them to swim successfully in the law school
institutional current we also teach them that the narrow banks of that particular
river do not define and constrain the infinite possibilities of the sea.

Epilogue

As I was writing this Article and looking through old papers from former
students, I happened upon one that, to me, illustrated how so many of the most
telling thoughts about our status as people ofcolor are triggered by the everyday

and the seemingly mundane. These thoughts we often articulate only to
ourselves or to those close to us because we are afraid that these notions may
seem irrelevant or even petty. We keep these indelible and powerful reactions
quiet because they are unnoticed and unacknowledged by those for whom
privilege has become an entitlement, and they are often devalued as the product
of an oversensitive disposition if they are ever acknowledged.'^^

1 70. Professor Angela Harris describes a faculty cocktail party where after someone had

mentioned she could sing, a colleague "happily rambles on about all the 'colored gals' he has

known throughout his life who are musical .... [and another colleague] asks me if I have a good

recipe for barbeque sauce." Angela P. Harris, On Doing the Right Thing: Education Work in the

Academy, 15 Vt. L. Rev. 125, 128 (1990). Harris describes the relationship between power and

knowledge:

People who are members ofminority groups have access to at least two perspectives and



2000] SEPARATING SUPPORT FROM BETRAYAL 78

1

One ofmy former students wrote pieces about being Latina. I remember how
incisive she was about the subtleties of racial and gender subordination as she
related to us how differently some people would react to her when they saw her
in person as opposed to when they knew her only by her married name on the
telephone (she usually used her husband's "Anglo" name to identify herself on
the telephone).

She wrote one reflection paper in which she began by writing, "When I say
'Viva La Raza' (live the race) or Brown Power, some people, okay, maybe most
people would see me as a radical . . . .[but it] is a statement used to show pride
and can be used as a rally cry for all Hispanics to join together and make a
difference." She went on to observe that some think that this kind of sentiment
is foolish, and still others "can't stand the way Puerto Ricans display their flag
in the window of their cars," particularly on the day of the Puerto Rican Day
Parade in New York City. She remembers non-Latino people yelling hostile
phrases on that day such as, "If you love Puerto Rico so much, go back where

you came from," even though many who celebrated that day were bom in New
York.

That year, she attended the annual St. Patrick's Day parade in Holyoke,
Massachusetts. She saw the Irish flags strewn about the town and noticed the
Gaelic signs hung across the balconies of the buildings. Yet, she heard no
complaints, no anger, no comments about radicalism. Her friend explained to her
that, "everyone is Irish in Holyoke on St. Patrick's Day." And she wondered to
herself ifthere would ever come a time when "on the day Puerto Ricans celebrate
their day of pride in their culture and traditions," everyone would want to be

Puerto Rican.

ways of being—^the public world of the dominant group and the more private world of
the minority subculture In this sense, political subordination creates an unexpected

asymmetry ofknowledge. People who are multicultural, happily or not, find themselves

with multiple ways of knowing. People who belong to the dominant culture only gain

access to these different worlds with difficulty.

Id. at 131 (explaining the W.E.B. Dubois concept of "double-consciousness") (citations omitted).