How Law Schools Quash Innovation in the Continued Struggle for Civil Rights
When prospective students get ready to embark on the tumultuous experience that is law school, they are often asked what made them choose law school. Many dewy-eyed, prospective students will respond “to help people” or “to make a change.” Others will tell a story about an agent of change they learned about in school, someone who inspired them. Whatever their reason, it can be traced back to innovation.
Innovation is undoubtedly one of the strongest principles that shapes our case law. The creative lawyer is highly sought and often depicted in film and TV. Society seems to crave and revere lawyers that have pushed the boundaries. For instance, the ones who have been held in contempt for failing to recoil when the arbiter makes the wrong call. And we all buy into it.
I think law students and law professors genuinely believe they can make a difference. But the reality is a rude awakening. Law schools suffer from a debilitating lack of self-awareness. While they encourage students to think creatively and make the profession better, they are also actively invested in inertia and a toxic brand of civility in the classroom. It remains one of the biggest contradictions in the legal field. We seem to want a healthy debate that involves hypotheticals which treat humans as disposable tokens, but we also want to make society better.
Perhaps it is time to retire the devil’s advocate arguments that function only to terrorize some of the most marginalized voices in the classroom. Writing for the majority in Ake v. Oklahoma, the late and great Justice Thurgood Marshall said “mere access to the courthouse doors does not by itself assure a proper functioning of the adversary process.” This principle applies to law school classrooms because debate for the sake of debate does not actually help us achieve equity in the law. In fact, it serves to shut down students who envision a future that values people over economics and property. Of course, students must know what they will be up against when they become advocates representing clients in court. But this does not necessitate questioning historic decisions that have expanded the rights of citizens under the cloak of engaging classroom discussion.
More and more students are invoking “cancel culture” arguments as a justification for shutting down radical leftist ideals, in exchange for tepid reform-oriented ones. And professors who acquiesce to these demands teach us that 1) the law is immutable, 2) necessary evils exist, and 3) we must accept the way things are and as advocates, stay within the confines of the system. We absolutely want change, but the past few decades of jurisprudence have taught us that it is only acceptable and possible if the party is a corporation or oppressive institution. It is difficult to imagine another Pauli Murray in our lifetime when we are dissuaded from changing our frame of reference. Pauli once said “what is often called exceptional ability is nothing more than persistent endeavor.” If we know anything it is that conservative voices are persistent and efforts to push our courts to value people and put people’s needs ahead of the unconditional love for American ideals are quashed.
Perhaps this realization is not new but we are hardly ready to admit that this conditioning begins in law schools. Many law schools have a desire to preserve the status quo and their reputation for churning out advocates that do not disturb the peace. Ironically, a record number of law schools have recently committed to diversity on paper but when those “diverse” students want to challenge the institution’s frame of reference they are told the legislature is the place to make these emotional arguments.