SALT

Volume 1992, Issue 4 Society of American Law Teachers December 1992

CRUZ REYNOSO TO BE President's Column ... HONORED AT SALT DINNER SALT AND THE CLINTON-GORE ADMINISTRATION IN SAN FRANCISCO - Sylvia A. Law New York University School of Law While SALT is a non-partisan organization, on many issues our concerns and priorities are closer to those of the new administration than the Reagan-Bush Executive that is about to leave office. Whether the new administration fulfills its promise depends largely on the quality, diversi- ty, energy and commitment of the people who design and implement its programs. As a group, SALT members possess extraordinary vision, talent and connection with other good people. Nearly 100 seats currently are vacant in the federal judiciary- -16 on the circuit courts of ap- peal, and 80 in the district courts. Judicial ap- pointments of the Bush administration have been overwhelmingly white, male, rich and Re- publican. Over 75% of those appointed report a net worth of over half a million dollars, and over one-third are millionaires. Only 5.5% of the PROFESSOR CRUZ REYNOSO judges appointed by Bush are African- Americans. In fact, the appointment of African- On Friday, January 8, 1993, during the Americans has failed to keep pace with their re- AAl.S Annual Meeting in San Francisco, SALT tirement from the bench, producing an absolute will present its Annual Teaching Award to Cruz decrease in the number of African-Americans. Reynoso, Professor of Law at University of Cali- Continued on page 3 fornia at Los Angeles School of Law. Cruz Reynoso's career, like Gaul, is divided into three parts. As lawyer, he has served in both public and private sectors, ranging from a pri- vate practice in El Centro, California to directing California Rural Legal Assistance (CRLA). He distinguished himself as a judge in California, both as Associate Justice on the Court of Appeals and as a member of the California Supreme Court. Appointed by Governor in 1982, he was swept from office in the anti- tide of 1987. In 1991, he returned to his life-

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Page 1 Continued from page 1 - Cruz Reynoso "Is there anything in her background that could be used to blackmail her?"). Before returning to long love of teaching, becoming a professor of the applicant to confirm this information, the FBI law at UCLA; in earlier times, he had taught at investigator proceeded to question several other Imperial Valley College in 1960-61 and Universi- people, asking whether they were aware of her ty of New Mexico Law School from 1972-76. "alternative lifestyle," effectively "outing" her to Justice, now Professor Reynoso, has had to several former colleagues. When the investigator mark these trails alone, serving as the first Chica- eventually returned to the applicant and she con- no or person of color in nearly every setting. His firmed her sexual orientation, he expressed the leadership and mentorship have left hundreds of department's concern that, if she had been keep- proteges: persons who litigated with him at ing this information relatively private and pre- CRLA, clerked with him as their judge, or stud- ferred to do so in the future, she might present a ied law with him at UNM or UCLA constitute a security risk. The applicant assured the investiga- remarkable cast, including many SALT mem- tor that her immediate family members and close bers. While he has been a trailblazer for people of acquaintances were aware of her sexual orienta- color and the poor, his interests have been wide- tion. Undeterred, the investigator insisted on spread and humanitarian. In this vein, he served questioning her elderly father, her ex-husband on the Select Commission on Immigration and and her current neighbors, all of whom were ful- Refugee Policy, the California Postsecondary Ed- ly aware of her "alternative lifestyle." ucation Commission, the Latino Issues Forum, In the end, the applicant "passed" the securi- and on many other important boards and com- ty check and is now permanently employed with missions. In each capacity, he has advocated tire- the federal agency. But, in the process, the inves- lessly for the poor and marginalized communi- tigator drew attention to her sexual orientation in ties. dozens of interviews and, in a few cases, actually Cruz Reynoso's life has been an inspiration "outed" her. As the sole support of two teenaged to all who have served with him, and SALT hon- children, the applicant/employee simply cannot ors this master teacher, friend, and colleague. afford to risk her job, or future jobs, by drawing Please join us in San Francisco on January 8th at public attention to the nightmare she underwent. Hotel Nikko, 222 Mason Street, Ballroom II, third At a minimum, however, she would like other gay floor, 6:30 p.m. cocktails, 7:30 p.m. dinner. and lesbian law students to know that when they (See page 11 for reservations.) apply for a job with the federal government, they may eventually get the job but risk being outed in the process. LAW GRADS RISK BEING "OUTED" - Michael M. Rooke-Ley Nova University Law Center

An ugly incident involving a recent gradu- ate of an AAI..S member school serves as a remin- der that when our gay and lesbian graduates ap- ply for jobs with the federal government, they Please, please pay your dues. must be prepared to give up their privacy rights. i While we are hopeful that this problem will no longer present itself under the Clinton Adminis- Why not now? tration, a word of caution seems appropriate, nonetheless. The story unfolds as follows: A recent law It costs us time & money to beg. school graduate interviewed for a position with an agency of the federal government. She was of- fered the job pending the results of a background Thanks. check conducted by the FBI. During the investi- gation, a former, disenchanted colleague with (Simply use the membership whom the applicant had worked more than 12 years ago stated that he believed the applicant to coupon on the inserted flyer.) be a lesbian (in response to the generic question,

Page 2 Continued from page 1 - President's Column are identified and then grouped by ethnic back- ground for subsequent review. Under the settle- Chosen from the corporate sector and prosecu- ment with OCR, Boalt Hall agreed to report tor's offices, the Bush appointees have meager changes in its procedures by December, 1992 pro bono records and include virtually no indi- The School is considering abandoning the separ- viduals with public interest, civil rights, legal ation of files by ethnic background as part of its services or environmental law backgrounds. response. Dean Kay expressed confidence that Give a moment's thought to whether you the school "will not have to compromise our are interested in taking on a big job in the new goals" of diversity in order to satisfy the govern- administration. Think about whether you know ment. colleagues or former students who have some- Quite remarkably, it appears that this thing special to contribute to the complex task of challenge has unified the school. Dean Kay governing America. signed the consent agreement on September 25; SALT and the Alliance for Justice are em- the press reported it on September 29. Through- barking on a joint project to encourage the selec- out the process, Dean Kay communicated with tion of people with a demonstrated commitment members of the law school and university com- to equal justice and excellence in the law. If you munity. On October 1, a large group of students have good ideas, fax them to me (212-995-3156) - from across the political and racial spectrum - or to Nan Aron at the Alliance (202-332-3224), held a rally and press conference in support of and we will do what we can to get them into the the Dean. Masses of students rallying to support hopper. their dean; definitely a "woman bites cat" story! The Boalt Hall story raises large, impor- Affirmative Action tant questions. How can educational institutions Attacked At Berkeley defend diversity programs that respect tests and grades, while also recognizing that there is no In October, the Office of Civil Rights of scientific method of defining excellence? How the U.S. Department of Education found that the do we preserve requirements of merit when we minority admissions program at UC Berkeley have no basis for correlating tests and grades (Boalt Hall) violated the federal civil rights law. with performance and contribution? Should we Dean Herma Hill Kay said the school is proud admit a large portion of the class solely on the of its policy, admits no wrong doing, but decid- basis of tests and grades and a small portion on ed to "enter into a voluntary conciliatory agree- the basis of our understanding that there are ment." other - perhaps more important - measure- This is the first time that the federal Office ments of qualification? Should our notions of of Civil Rights (OCR) has investigated a law merit encompass ideas about missions of the school admissions program. Michael L. Wil- profession, diverse concepts of excellence or liams, head of the Bush Administration's OCR, concepts of democracy? These questions are the urged all law schools to examine their admis- product of a conversation with former SALT sions programs. He acknowledged that an "offi- Board member Marjorie Schultz, a world class cial finding of discrimination" justified a law practitioner of the Socratic dialogue. Neither of school policy giving minorities "special consid- us claims answers. eration," but few, if any, law schools have ever One likely consequence of the Boalt Hall been subject to an "official finding of discrimina- settlement is more work for admissions people tion." Williams also stated that, while law and faculty. In my twenty-year experience in schools could encourage a broad pool of appli- American legal education, it has been quite com- cants, all affirmative diversity programs outside mon to ask people to pay particular attention to of these narrow parameters were, in his view, particular groups of people applying for mem- impermissible. (Readers may recall that Mr. Wil- bership in our community - as students or facul- liams previously issued the 1990 OCR regula- ty. Is this wrong? Sometimes or always? For ex- tions that prohibited all scholarships targeted to ample, even though I am not a member of help minority students. The regulations were NYU's faculty appointments committee, I am quickly withdrawn in response to broad asked to attend preliminary interviews with protest.) women and with people working in areas in The investigation of Boalt Hall began in which I have some expertise. I think this is a 1989 in response to a request from Rep. Dana fairly common practice and that it makes sense. Rohrabacher (R-Calif.). Under Boalt Hall's chal- lenged admissions process, qualified applicants Continued on page 4

Page 3 Continued from page 3 -President's Column COMBATTING "ISMS" Does the charge against Boalt Hall imply that no AFTER R.A.V. faculty member can weigh-in unless we are will- - Charles Calleros ing to read all of the application files or inter- Ariz.ona State University view all of the candidates for appointments? School of Law Since Bakke, few individual plaintiffs have challenged professional school admissions or I assume that few university instructors are hiring practices. As with Boalt Hall, the serious so offensive or intimidating with selective epi- challenges have come from the federal govern- thets or insults that they maintain unequal edu- ment. It is unlikely that the new federal adminis- cational environments in violation of statutory or tration will challenge our efforts to grapple with constitutional mandates. Angela Harris's affirmative action. But lawsuits by prospective thoughtful article in the last issue of The Equalizer students and faculty members are always possi- reminds us, however, that those in positions of ble. They serve a valuable function in keeping social power need not resort to these grosser us honest and attentive to conflicting values. forms of "cross burning." We can draw from the In the short term, Boalt Hall has given '1ong, dark river" of "racism, sexism, and their Professor Rachel Moran the challenging task of siblings" in subtler ways ''barely perceptible even answering the questions posed by the settle- to ourselves." ment agreement. We wish her success. We also We must learn to recognize these subtler, congratulate our friends and colleagues at Boalt more pervasive forms of cross-burning. Moreo- Hall for reaching a settlement that appears to ver, we should feel sufficiently secure in our free- preserve the heart of its diversity program. This dom of speech and academic freedom that we do positive resolution is of great value to all of us in not test the limits of these freedoms with gratui- American legal education. tous challenges to our students' sensibilities. But how should a state university react to Pro-bonoAt students who remain relatively powerless and Columbia School genuinely filled with hate? At a campus the size Law of ArizonaState University, the student body of 40,000 IS bound to include a few whose views are Columbia University School of Law joined so unorthodox that they can scandalize the entire the growing list of law schools that require stu- campus with a single expression of hate. Moreo- dents to do pro bono work. The program was ver, as the of unorthodox views, they of- adopted in response to student mobilization, keepers with assistance from the National Association of ten feel insignificanti and ignored, leading them Public Interest Law. occasionally to grab attention with expression in- The Columbia program will require a tended to shock, expression likely protected from state regulation under R.A. V. Paul. minimum of 40 hours of work over three years. v. St. The work cannot be paid or performed for cred- . It's no answer to generally prohibit offen- sive speech or to selectively prohibit a special cat- it, but the school accepts a broad definition of what qualifies as pro bono work. An administra- egory of speech. Though we can critique R.A. V. v. St. Paul in the law journals, university adminis- tor has been hired to implement the new pro- trators gain nothing by defying it in the trenches gram and to coordinate pro bono placements. of campus life. By doing so, they only invite re- buke from federal courts and undeserved celebri- ty status for first amendment martyrs. Neither Watch for SALT's Annual serves the goals of maintaining a nondiscrimina- FACULTY tory educational environment on campus. At A.S.U., an anti-harassment policy and ac- SALARY SURVEY companying first amendment guidelines affirma- tively protect and eencourage a free exchange of scheduled for mailing to all ideas; they prohibit only a few narrow categories SALT members on January 4, of speech, such as threats of harm, without re- gard to the discriminatory nature of the threat. 1993 and for additional distri- The centerpiece of the policies, however, is a sec- tion creating the Campus Environment Team bution at the AALS Annual (CET), a 9-member committee of students, facul- Meeting in San Francisco. ty, staff and administrators. It works with other

Page 4 persons and organizations on campus to encour- breadth requirements. (Although that measure age students and employees to work, study and had been previously set for a vote, its chances for exchange ideas in an atmosphere of civility, thus success were modest until the poster and the making discriminatory harassment less likely to counterspeech exposed the great need for it.) In occur. In partial fulfillment of its educational the meantime, the University avoided making a function, it sponsors or participates in work- victim and first amendment martyr of the owner shops on topics ranging from date rape to free of the poster by refraining from invoking disci- speech, and it regularly holds debates or open plinary proceedings against him. forums in which students and others can address R.A. V. precludes a state university from se- the controversial issues of the day in civil, nonvi- lectively prohibiting discriminatory hate speech, olent settings. but it does not preclude strong responses. Uni- The CET supplements dozens of other pro- versities can empower students to respond to grams at A.S. U. designed to prepare students for hate speech and can affirmatively encourage stu- life in a multicultural society. One of those pro- dents and employees to maintain nonhostile, grams is Leadership 2000, an annual workshop nondiscriminatory learning environments. That that, among other things, tries to empower stu- approach requires constant nurturing rather than dents to confront racism in a responsible manner, the quick fix of legislative prohibition, but the re- rather than to ignore or compound it. sults can be more gratifying and lasting. In 1991, four graduates of Leadership 2000, For copies of A.S.U.'s CET Policies and first all African-American women, did just that when amendment guidelines, call A.S.U.'s General they spotted a shockingly degrading racist poster Counsel's Office at (602) 965-4550or its Affirma- displayed by its author on the outside of his dor- tive Action Office at (602) 965-5057. For a fuller mitory door. Because the dormitory allowed resi- description of the CET's origin and activities, see dents to post notices freely on the inside of their Charles Calleros, Recondling Civil Rights and Civil rooms and on the outside of their doors, an Liberties after R.A. V. v. St. Paul: Free Speech, Anti- agent of the state university could not selectively Harassment Policies, Multicultural Education, and take down the racist poster and leave up another Political Correctness at A.S.U., 1992 Univ. Utah L resident's "Celebrate Diversity" poster, which I Rev. No. 4 (forthcoming). had helped design and distribute as founding Chair of the CET. But that didn't stop the women. Without any assistance from the university, other than SETTING THE TONE: their training in Leadership 2000, they knocked Raising Diversity Issues on the offending door and persuaded a resident inside to recognize the injury visited on them by At Orientation the poster and to voluntarily remove it. Moreo- - Hazel Weiser ver, they addressed the racism by sparking a Touro College Law Center flurry of counterspeech, organized by the Afri- can-American Coalition and supported by the The Jacob D. Fuchsberg Law Center of Tou- CET, the Residence Hall Director, and a broad ro College is a suburban New York law school spectrum of student groups. This outpouring of with an aggressive affirmative action program. speech included an open meeting at the dormito- Two years ago someone published the admis- ry, a press conference, a public rally, several sions scores of the first-year class on the first day workshops, and numerous letters to the editor of of spring semester exams. The LSAT scores and the student newspaper. GPAs of students of color were highlighted. The Although some letters to the editor sought reaction was anger, distrust, frustration, humilia- to minimize the offensiveness of the poster, the tion and disgust. Although the administration general dismay on campus over the hostile stere- launched an investigation and the faculty posted otypes in the poster conveyed an important mes- a reward, the students responsible for the inci- sage: not only did the general campus communi- dent were never identified. A year later a cartoon ty reject such sterotypes, but it supported characterizing African-American students as less multicultural education to address the cultural qualified appeared on several walls. Once again, ignorance that allowed such stereotypes to per- no culprits were identified. Racial intolerance sist. Less than one week after the discovery of the and frustration were surfacing at Touro. racist poster, the A.S.U. Faculty Senate over- The Law Center community mobilized to whelmingly voted to add a course in domestic discover the sources of these tensions and to de- ethnic diversity to the A.S.U. undergraduate Continued on page 6

Page 5 Continued from page 5 - Orientation Touro's first-year student population which is 30.5% minority and 43% women. vise methods to alleviate them. Dean Howard A. This small group format developed, in part, Glickstein appointed a Diversity Committee from the recommendations in the "Institute for composed of faculty, administrators and stu- the Study of Social Change, Diversity Project Fi- dents. The Committee was charged to address nal Report" (1991) which studied the demograph- the manner in which diversity issues were identi- ic changes to the undergraduate student popula- fied and discussed at Touro. One result of the tion at the University of California, Berkeley Committee's efforts was the Fall 1992 Orientation campus. The Report discusses the benefits of which presented to incoming students an aca- cooperative learning and the need to decrease al- demic program and a series of social events fo- ienation and hyper-competitiveness among stu- cused on multiculturalism, thereby setting the dents. As the percentage of students of color in- tone for the institution. The academic program creases, majority students feel threatened featured three days of classes introducing stu- because their entitlements and advantages dents to primary law school skills using cases (which often have never been questioned) ap- that raise diversity concerns. Orientation closed pear to vanish. Majority students may deride or with an international buffet and a film festival, blame students of color for these scarcer resourc- featuring motion pictures selected for their multi- es. All students have a tendency to fall back on cultural themes. their primary identities and avoid contact with each other. This balkanization along ethnic and Academic Orientation racial lines leads to "racialization, the heightened awareness of many aspects of life as having a ra- The academic portion of the Orientation cial element." Students of different backgrounds program used case materials and a methodology working together on common projects often dis- that exposed students to issues of multicultural- cover each other because they listen to how each ism and allowed majority and minority students individual thinks and contributes to the process. an opportunity to work together. This portion of Cooperative learning also defuses some of Orientation ran for three days, and each day was the dysfunctional competitiveness straining stu- divided into three fifty-minute segments: a tradi- dents who are competing for scarce resources tional lecture, a small group workshop session, and facing a depressed job market. We know and a follow-up class. Students were introduced from first-year journals written by Touro Jaw stu- to the concepts of case analysis, briefing, the evo- dents in Legal Methods last year that most stu- lution of common Jaw concepts, stare decisis, dents initially experience a sense of anxiety problem-solving and class recitation skills, all caused by their perceived isolation. Everyone else through cases involving intentional infliction of is getting it. I must be stupid. That insecurity is re- emotional distress. Inspired by Jean C. Love, Dis- lieved as students begin to make friends and criminatory Speech and the Tort of Intentional Inflic- share the commonality of the Jaw school experi- tion of Emotional Distress, 47 Wash. & Lee L.Rev. ence. Small group learning was chosen because it 123 (1990) and Okianer Christian Dark, Racial In- could reduce anxiety and hyper-competitiveness sults: "Keep Thy Tongue From Evil," 24 Suf. U. by facilitating friendship formation within L.Rev. 559 (1990), the case materials followed the groups that have been formed with diversity growth of this tort as it has been used to fight ra- goals. cial, gender, religious, sexual orientation and eth- Experienced student teaching assistants nic intolerance. monitored the small groups. Recruited from a di- verse pool of high achieving students, the TAs The Methodology provided students with visible role models while forwarding the progress of the small groups. The methodology for presenting these mate- In the small group sessions, students revised rials proposed to stimulate thought and structure their briefs for the two cases discussed on the discussion of legal concepts that included diver- first day, answered a series of multiple choice sity issues in both a traditional classroom setting questions on the second day and, on the last day, and informally in small groups. The first-year constructed a legal argument to support and de- class was divided into lecture sections composed fend a cause of action based upon a hypothetical of sixty to seventy students. Students were also fact pattern. After the small group sessions, stu- assigned to small groups of six or seven students dents returned to their lecture groups, and the to work on specific problem-solving tasks each class reviewed the work of the small groups un- day. The small groups reflected the diversity of der a professor's supervision. Each day a differ-

Page6 ent reporter was chosen to represent the views of to redress a harm caused by intolerance. The in- each group at the follow-up session. This gave quiry required an examination of whether the five students from each small group the opportu- conduct complained of violated the community's nity to speak at the follow-up sessions, assuring standard of decency, whether it was "outra- that a vast majority of the first-year class recited geous" to the reasonable person. When dealing during the three-day program. Model briefs and with perceived injuries caused by racial or ethnic answers to the short-answer questions were dis- intolerance, homophobia, gender or religious tributed at the close of each session. On the final bias, courts must decide whether these injuries day, students were asked to draft an answer to are outrageous to the community and, conse- the assigned hypothetical quently, whose community values and standards apply. Logan v. Sears, Roebuck Co., 466 So.2d 121 Intentional Infliction (1985) was brought by a homosexual man who of Emotional Distress alleged that the use of the word "queer" was ac- l tionable. After discussing the linguistic history of The first reading assignment introduced the the word, the court found that he did not raise a tort as it was announced by the California Su- claim because of its common usage in the hetero- preme Court in State Rubbish Collectors Assoc. v. sexual community. In contrast, the court in Al- Siliznoff, 38 Ca12d 330, 240 P.2d 282 (1952). The corn v. Anbro Engineering Inc., 2 Cal.3d 493, 86 tort was adopted at the urging of legal scholars, P.2d 216, 86 Cal. Rptr. 88 (1970) also discussed and, as it first appeared, it was not broken down the linguistic history of a word, this time "nig- into component elements. Students also read ger," and found a cause of action based upon its Golden v. Dungan, 20 Cal. App.3d 295, 97 use by a superior to an employee in an employ- CalRptr. 577 (1971), an intermediate appellate ment setting. A battered woman was allowed to court decision issued nineteen years later after assert a claim of intentional infliction of emotion- distinct elements of the tort had been developed. al distress in Murphy v. Murphy, 109 A.D.2d 965, The lecture focused on the elements of a judicial 486 N.Y.S.2d 457 (1987), although there was a rig- opinion and the development of common law orous dissent, in part, questioning why the plain- principles. tiff remained in such an abusive home. Russo v. The second reading assignment introduced White, 241 Va. 23, 400 S.E.2d 160 (1991) was students to the less controversial elements of the brought by a woman who was hounded by a tort: intent, causation and severity of the distress. man for months after a single date. The court The discussion led students to an understanding found that the plaintiff had failed to allege severe that law is often composed of definitions, ele- distress, although the dissent found that all of the ments or factors which must be proven by the ex- elements were clearly satisfied. istence of certain categories of facts. Taylor v. Val- In preparation for the third day of the aca- lelunga, 171 Cal.App.2d 107, 339 P.2d 910 (1959) demic program, students were given five fact disallowed a claim for intentional infliction of patterns involving diversity issues. These fact emotional distress because the plaintiff had patterns raised possible claims based on racial failed to prove intent. Adams v. Murakami, 228 and ethnic intolerance, anti-semitism, discrimina- Cal.App.3d 885, 268 Cal.Rptr. 467 (1990), al- tion against persons with disabilities and dis- though depublished by the California Supreme crimination against women. The fact patterns al- Court, provided an opportunity to include inac- lowed arguments for both sides. Students ) tion within the element of intent in a case dealing worked on one of these problems in their small with a doctor's failure to treat a mentally disa- groups and then, through their reporters, pre- bled adult in custodial care. Venerias v. Soncrant, sented arguments to the entire class when the 127 Ariz. 496, 622 P.2d 55 (1981) found lacking lecture sections resumed. the element of severity of distress. The case arose These discussions allowed students to iden- from allegations that senior citizens harassed a tify and perhaps recognize the claims of individ- young family to move from a retirement commu- uals whose primary identities might be different nity. Cortez v. Macias, 110 Ca1App.3d 640, 167 from their own. This was not their initial reac- Cal.Rptr. 905 (1980) introduced students to the tion. Students inevitably validated the claims of element of causation. the plaintiffs who were most like themselves. The third reading assignment focused stu- That tendency was articulated and revealed dur- dents on the controversial element of "outra- ing the follow-up discussions, which never be- geous conduct." Students were asked to read came disrespectful. The discussions were lively, four cases, all of which dealt with use of the tort Continued on page 8

Page 7 Continued from page 7 - Orientation eating ourselves on ways to incorporate diversity into the curriculum so that issues of race, gender, albeit self-conscious. Possible claims based solely ethnicity, sexual orientation, and religious intol- on hateful words initially were found to be inac- erance are not isolated into "boutique" seminar tionable, although not for First Amendment or li- classes.Collaborative C learning is stressed as a bertarian reasons. Perhaps this generation has technique during the first year; students are en- been desensitized to inflammatory words couraged to work together on common educa- through television, MlV, film, shock jocks and tional projects, thereby dispelling some of the rap music. What was clearly evident was the en- stereotypes that flourish when students keep to thusiasm and respect with which students spoke themselves. A faculty committee has devised a and listened to each other in the small groups as student teaching assistant program to work with well as in the follow-up sessions. all students during the first year. Anxiety and hyper-competitiveness among students can be The International Bullet reduced, and majority students have less reason and Film Festival to suspect that students of color are being advan- taged. Furthermore, the TA program has been Orientation culminated in a social event that expanded to include two second-year required utilized the efforts and cooperation of the many courses. student organizations at Touro. A giant interna- The work of the Diversity Committee con- tional buffet was assembled at a local cinema arts tinues, requiring student, faculty and administra- theater, and representatives from the student or- tive resources and cooperation. We would love ganizations assisted in serving the foods. Two to receive your comments and suggestions and, films were shown: "A Soldier's Story" and "Let if you would like, to provide you with a copy of Him Have It." "A Soldier's Story" deals with is- the Orientation Workbook and teaching materi- sues of race in the investigation of the murder of als. an African-American sergeant in the segregated military. "Let Him Have It" in- volves the trial and execution of a mentally disa- bled man in England. After each film, several fa- SALT BOARD culty members and student leaders led MEETS IN discussions drawing out the themes of the two - Joyce Saltalamachia films. New York Law School

The Results Breaking the long-standing tradition of holding Board meetings on either the East or the So far the results of the program have been West Coast (with the winter meeting held during encouraging, although these observations are in- the annual AAI.S conference), the SALT Board formal and personal. Study groups were formed ventured forth into the great Midwest for its reg- among students who worked together during ular Fall meeting on September 18, 1992 at that first week of school A number of these Northwestern University Law School in Chicago. groups include students of color, who, in years One measure of SALT's importance and in- past, might have been excluded. There seems to fluence is that we are frequently asked to lend be less segregation in the cafeteria and in the li- our name to amicus briefs, take public stands in brary. Student journals submitted in Legal Meth- ods have not expressed that feeling of isolation. By the time school began, friendships had al- ready formed. Because of their increased num- bers, students of color are more active in classes and often sit closer to the front of the room. However, they still may be perceived by majori- ty students as the recipients of special admis- sions and support programs. The Orientation program is part of a greater emphasis on introducing diversity issues into the Law Center's daily life. Orientation only set the tone. At a faculty retreat scheduled for this month, one of the two days is dedicated to edu-

Page 8 favor of or against current issues, or co-sponsor the Board reaffirmed the Code of Ethics, which events with other organizations. The common provides that the Board of Governors "may poll practice has been to put these requests on the the members of the Society on major questions agenda for a Board meeting or, if the requests are and may publicly announce as the position of the particularly timely, for the president to poll the Soceity a position on which two-thirds of the Board for an appropriate response. Frequently, members voting agree." these requests are only tangentially related to le- Alternatively, the Board may vote to take a gal education, although they may raise impor- position. The by-laws provide that a quorum for tant issues of freedom and equality. When such a meeting of the Board is one-third of the total requests have been made, the Board has fre- number of members then in office. The Board may issue a statement if the statement is ap- proved by a majority of those present and vot- ing. Regarding issues which arise between Board meetings, the by-laws provide that the Board may take action when the President or any three members believe that the Board should speak promptly. The President shall cause all members of the Board to be polled by telephone or letter. The statement shall then issue if two-thirds of the members of the Board voting (and at least a ma- jority of the Board) approve. • • • • • The Board also considered the proposed ABA rule on mandatory pro bono at the request of quently debated the scope of our concern as an president Sylvia Law. In discussing whether organization. And in an effort to clarify the scope SALT should support the proposed ABA rule es- of SALT's concerns, a Committee on Public Posi- tablishing mandatory pro bono for attorneys, tions was established to define the sorts of topics Board members were divided. Several members that SALT should address. On behalf of the Com- of the Board preferred a provision allowing law- mittee, Stephanie Wildman and Pat Cain pro- yers to ''buy out" of the requirement, provided posed the following policy statement which was approved by the Board:

As a general matter, SALT will take public positions on issues involving equality, diversity or academic free- dom. Priority will be given to issues which affect legal education or to is- sues which are particularly signifi- cant.

All requests for SALT to take a pub- lic position shall be directed to the president of SALT, who shall then refer the matter to the Standing Committee on Public Positions. Be- fore the Committee reports to the the money would be used to fund highly quali- Board, the Committee shall consult fied public interest lawyers. Others objected that with SALT members at any school the pro bono requirement would apply across directly involved in the issue. The the board and would have an unduly burden- Committee shall consider the re- some impact on legal services lawyers and solo quest and make a recommendation practitioners, in particular. Some members of the at the next Board Meeting. Board preferred a tax on lawyers instead of a mandatory pro bono requirement. Sylvia argued As to who has the ultimate authority to make public pronouncements on behalf of SALT, Continued on page 10

Page9 Continued from page 9 - Board Meeting The AALS Section on Gay and Lesbian Le- gal Issues is in the process of formulating a posi- tion paper on the working group recommenda- tions. The question was raised as to whether SALT wished to take a position on this issue. Richard Chused suggested that SALT should support the application of the AALS non- discrimination policy to all law schools except those religious law schools needing an exemp- tion because of religious principles. The Board generally agreed with this position but decided to contact the AALS Section on Gay and Lesbian Legal Issues and to obtain a copy of that section's position on the working group recommendations before communicating SALT's position. On the same topic, Howard Glickstein re- minded the Board that the ABA is now actively considering the adoption of a policy prohibiting discrimination on the basis of sexual orientation. in favor of the pro bono requirement on the • • • • • ground that the requirement would bring all As a member of the AALS Committee on Statis- lawyers in contact with poor citizens. tics, Richard Chused reported that there is a pro- The Board decided to gather more informa- posal pending before the AALS Executive Com- tion and discuss the ississue at a later Board meet- mittee to establish a presumption in favor of ing. In the meantime, the Board resolved to com- releasing the statistical data that the AALS col- municate to the ABA SALTs continuing support lects and to publish analyses of the AALS data. for the traditional ethical obligation to provide le- Because SALT pioneered the collecting of data gal services to the poor. on race, ethnicity and gender, Richard suggested • • • • • that, if the AALS adopts the proposal, SALT Arthur Leonard spoke to the Board regarding might want to begin to collect data about gay the AALS working group on compliance with and lesbian law professors or some other type of the AALS policy prohibiting discrimination. data that the AALS does not currently collect. AALS Executive Committee Regulation 6.17 gov- Undoubtedly, AALS's new willingness to collect erns the degree to which religiously affiliated and share data of this type is the result, in large schools are bound by the AALS non- part, of SALT's leadership in bringing diversity discrimination policy rules. In essence, this regu- issues to the forefront of discussion. lation provides that religiously affiliated schools may give hiring preference to membersof their own religion but that no school may discriminate against the categories listed in the AALS rules. When sexual orientation was added as one of the categories in 1990, some religiously affiliated schools objected to being bound by this category if it violates the precepts of their religion, thereby raising a free exercise challenge. . The working group, which was established in order to formulate a policy that will reconcile the AALS mandate against discrimination and the religious schools' need to follow the tenets of their governing bodies, has proposed that thet AALS not insist upon compliance if the religious- ly affiliated school has a strong objection, but, that each school should comply with the non- discrimination rules to the greatest extent possi- ble. Questions remain as to who or which body should decide whether each school is in compli- ance.

Page 10 REPRESENTING SALT-MINDED EVENTS DEATH ROW INMATES: in SAN FRANCISCO

Bringing Realityinto the Classroom and Justice to the Unrepresented Board Meeting -Wednesday, January 6, 1993, 5:30 pm - 8:00 pm, over dinner. Location to - Margery Koosed be announced. University of Akron School of Law Robert Cover Memorial Stud~ A general consensus appears to have devel- Group-Wednesday, January 6, 1993, 8:00 pm- oped among our colleagues on three specific 10:00 pm. Location to be announced. Entitled means of improving our criminal justice system 'The Jewish Persona in American law Schools" courses. This consensus is a product of discus- with Prof. Pinina l.ahav. Background readings sions with fellow SALT members, with col- will be distributed to people who have partici- leagues in the AAI.S Criminal Justice Section, pated in this group in years past. Anyone who and with participants in last year's Justice Mis- would like to be added to that list should contact sion Conference in Cleveland. Professor A vi Soifer at Boston University School First, there seems to be considerable support of law (telephone: 617-353-3117). for ''bringing more doses of reality into the class- room." Second, many faculty wish to encourage Panel on Exploring Differences - a greater sense of professional service among Thursday, January 7, 1993, 9:00 am-12 noon. Lo- their students. Third, many of those teaching cation to be announced. Entitled ''Exploring Dif- criminal justice courses agree that capital case de- ferences in Education: Issues of Integration, Seg- cisions of the United States Supreme Court are regation and Equality," this program will be co- fine vehicles for class discussion of essential is- sponsored by SALT and the Section on law and sues. the Community and will feature Jonathan Kozol In keeping with these views, I am again in- Panelists include Jacqueline Irvine, Department cluding in my seminar course an opportunity for of Education Studies, Emory University; Sonia students to assist an indigent death row inmate Jarvis, Director, National Coalition on Black Vot- petitioning for writ of certiorari to the United er Participation; Diane Lipton, Staff Attorney, States Supreme Court, under my supervision as Disability Rights, Education, and Defense Fund; counsel of record. I am writing to encourage oth- and Steve Schwartz, Adjunct Professor, Harvard er faculty members teaching seminar or clinical law School. Professor Arlene Kanter of Syracuse courses to consider incorporating into their class- law School will moderate the panel es such an opportunity to assist a death row in- mate. Annual Teaching Award Dinner - From a pedagogical standpoint, giving stu- Friday, January 8, 1993, 6:30 pm cocktails, 7:30 dents the opportunity to research cutting-edge pm dinner. Hotel Nikko, 222 Mason Street, Ball- legal issues, to assist in preparing a petition seek- room II, 3rd floor, honoring Professor Cruz Re- ing review in the nation's highest court on behalf ynoso. Please make reservations immediately of a death-sentenced client, and to participate in (before December 22, 1992 to guarantee a seat) by a pro bono legal experience would appear to sat- calling Professor Stuart Filler at 203-576-4442, isfy many of the goals which we frequently es- and then sending a check for forty dollars pouse. From a professional and individual stand- ($40.00) to him at Bridgeport law School at point, taking on the responsibility to serve as Quinnipiac College, 600 University A venue, counsel for an unrepresented death row inmate, Bridgeport, Connecticut 06604-5651. even if only at one stage of review, allows us the opportunity to serve our profession and commu- Diversity Forum - Saturday, January 9, nity and to personally participate in the justice 1993, 8:30 am - 10:15 am. Location to be an- mission. nounced. The AAI.S is sponsoring a Forum on The need is desperate. If you are interested, Meeting the Challenges of Diversity in an Aca- please contact me at University of Akron School demic Democracy. People are urged to bring sto- of law, Akron, Ohio 44325, telephone: (216) 972- ries of problems, successes and failures in deal- 6793. ing with second generation diversity issues.

Page 11 Society of American law Teachers

President Board of Governors Sylvia A Law (NYU) Babara Babcock (Stanford) Presidents-Elect Katherine Bartlett (Duke) Patricia A Cain () Mary Becker (Chicago) Jean Love (Iowa) Cynthia Bowman !Northwestern)(Northw Haywood Bums (CUNY) Past Presidents Patricia A Cain (Iowa) Norman Dorsen (NYU) Paulette M. Caldwell (NYU) Howard Lesnick (Pennsylvania) Charles R. Calleros (Arizona StateJ David L Chambers (Michigan) Martha Chamallas (Iowa) George J. Alexander (Santa Clara) Richard H. Chused (Georgetown) Wendy W. Williams (Georgetown) Jerome Culp (Duke) Rhonda R Rivera {Ohio StateJ Clare Dalton (Northeastern) Emma Coleman Jordan (Georgetown ) Harlon L Dalton (Yale) Leslie Espinoza (Arizona) Charles R. Lawrence Ill (Stanford) Stuart Filler (Bridgeport) Howard A Glickstein (Touro) Howard A Glickstein (Touro) Linda Greene (Wisconsin) Past Vice Presidents Phoebe A Haddon (Ternple) Anthony G. Amsterdam (NYUJ Angela P. Harris (Berkeley) Derrick A Bell. Jr. (Harvard) Sylvia A Law (NYU) Gary Bellow (Harvard! Arthur Leonard !New York) Ralph S. Brown. Jr. (Yale) Jean Love (Iowa) Thomas Emerson (Yale) Holly Maguigan (NYU) Judith Resnik (USC) Treasurer Dean Rivkin () Stuart Filler (Bridgeport! Michael M. Rooke-Ley (NovaJ Joyce Saltalamachia !New YorkJ Editor Elizabeth Schneider (Brooklyn) Michael M. Rookey-Ley (Nova) Aviarn Soifer !Boston University) Nadine Taub (Rutgers-Newark) Historian Gerald Torres (Minnesota) Joyce Saltalamachia (New YorkJ Stephanie Wildman (San FranciscoJ PatriciaJ. Williams (Wisconsin) Zipporah Wiseman (TexasJ Steve Wizner (Yale)

SALT Newsletter Michael M. Rooke-Ley, Editor NON PROFIT ORG. U.S. POSTAGE Nova University Shepard Broad Law Center PAID 3305 College Avenue FT. LAUD., FL PERMIT# 886 Fort Lauderdale.Florida 33314