Race and the Core Curriculum in Legal Education
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Race and the Core Curriculum in Legal Education Frances Lee Ansley TABLE OF CoNTENTS I. Legal Education and the Canon Debate ................... 1513 A. Introduction: The Thesis ............................. 1513 B. The Legal Core Curriculum .......................... 1515 1. Its Backwardness ................................. 1515 2. Its Advantages ................................... 1519 II. Race in a Law School Classroom: Case Study .............. 1521 A. Property Class and Gratuitous Transfers Class ........ 1521 1. Roots of Title in the New World .................. 1521 2. Slavery ........................................... 1523 B. Discrimination Class ................................. 1526 1. Background ...................................... 1526 2. The First Class ................................... 1528 3. Course Structure .................................. 1537 4. Race and the Constitution ........................ 1539 C. The Underground Classroom ......................... 1554 III. Race in the Law School Classroom and in the Legal Canon: The Thesis Revisited ...................................... 1572 A. The Classroom ....................................... 1572 1. On Indoctrination ................................ 1572 2. On Doing the Right Thing ........................ 1583 B. The Canon ........................................... 1586 C. Conclusion ........................................... 1593 1511 1512 [Vol. 79:1511 Race and the Core Curriculum in Legal Education Frances Lee Ansleyt Controversy about the value and meaning of a canon of traditional western culture has been raging on American university campusesfor some time. ProfessorAnsley argues that in light of the history of the Constitu- tion, the legal academy should be in a better position than the rest of the university to achieve broad.consensus on an issue that has proved divisive elsewhere: the centrality of race to our discipline and its core texts. She elaborates by narrative, describing some of her experiences with teaching about race and sharing the reflections of her students as they encountered racially charged texts and interactions in the law school classroom. The deep racialdivisions that presently exist throughoutsociety, coupled with the discomfort and ignorance that tend to characterize our infrequent attempts to communicate about matters of racial difference, will compli- cate easy consensus about whether and how to more explicitly recognize race in the law school's core curriculum. She nevertheless argues that the rewards of such integration are worth the difficulties and concludes that t Associate Professor of Law, University of Tennessee. A.B. 1969, Harvard-Radcliffe; J.D. 1979, University of Tennessee; LL.M. 1988, Harvard. Relevant in my view to the issues I will be discussing in this Essay are some additional pieces of biographical information that do not reveal themselves from the dates and sources of my academic degrees. I am a white woman in my mid-forties, Southern by heritage, birth, and rearing. On one side of my family I am a second-generation college graduate, fourth-generation on the other. For eight years after law school I was a plaintiff's personal injury litigator in Knoxville, Tennessee. I returned to the legal academy to teach in 1988. For a critique of the notion that you as a reader should find any of this race-, class-, and gender-related information relevant to your reading, see Stephen L. Carter, Academic Tenure and "White Male" Standards:Some Lessonsfrom the Patent Law, 100 YALE L.J. 2065 (1991) ('lilt is time to step away from labels and categories, time to stop worrying about who is writing from what perspective," id. at 2085). I want to thank the many people who were kind enough to read earlier drafts of this Essay, who fed me pieces of information, or who otherwise inspired or offered help and support for the teaching efforts that I describe below. These people include Derrick Bell, Pat Cain, Joe Cook, Kim Crenshaw, Alan Freeman, Nina Gregg, Pat Hardin, Camille Hazeur, Chuck Lawrence, Howard Lesnick, Toni Pickard, Glenn Reynolds, John Sebert, Jim Sessions, Barbara Stark, Greg Stein, Mark Tushnet, Dick Wirtz, and Marilyn Yarbrough. I also am grateful for the research assistance provided both in fat times and lean by Kelly Bryson, Mary Copeland, Patricia Crotwell, John Goergen, Robin Miller, and Ernestine Thomas. Finally, of course, this Essay could never have come to be without the students in my Discrimination class of fall 1989, many of whose thoughtful and lively words you will be reading below. Other students in my Race and Gender in American Law seminars, in Women and the Law, and in my spring 1991 Discrimination class have also taught me much that helped inform this Essay at every stage, and I thank them too. The final product is, of course, my own responsibility. 1991] RACE IN LEGAL EDUCATION 1513 matters of racialjustice, both past and present, are an indispensablepart of minimal cultural literacyfor American lawyers and legal scholars. I LEGAL EDUCATION AND THE CANON DEBATE A. Introduction: The Thesis' Even those of us in law schools, with our often loose and provisional relationship to the rest of the academy, cannot fail to notice the contro- versy now raging in the larger university about "the canon." 2 The con- test is both heated and far-reaching.' Some participants in this debate fear that the inherited wisdoms of the various disciplines are suffering erosion and disintegration due to 1. First names of authors and editors are included in footnotes throughout to provide a method, albeit imperfect, for allowing identification of the gender of authors and editors cited. 2. Some sense of what I mean by "the canon" will emerge in the discussion that follows. In a very general way, the term refers to a body of texts, perhaps of events, ideas, and nonverbal cultural creations, that are held to form a core that either is or should be presented to the next generation of learners as somehow central to, even definitive of, their heritage. The meaning of this core, whether it does or should exist at all, and if so what exactly should be included in it, are all topics of hot dispute. 3. See, eg., Karen J. Winkler, Organization of American HistoriansBacks Teaching of Non- Western Culture and Diversity in Schools, Chron. Higher Educ., Feb. 6, 1991, at A5, col. 2 (examining debate over multicultural education in public schools); Scott Heller, 'Entrepreneur'of the Core Curriculum Fights the Devil on the Side, Chron. Higher Educ., Jan. 9, 1991, at A3, col. 2 (in favor of a core curriculum, Carl Raschke argues that a core curriculum is not a "canon" and that a core curriculum requires interdisciplinary thinking); W. Robert Connor, Milton as Misogynist, Shakespeare as Elitist, Homer as Pornographer,Chron. Higher Educ., Dec. 5, 1990, at A48, col. 1 (arguing against treating literary works as products of historical and social contexts); FurtherDebate on Core Curricula: a Parableon Upward Mobility, Chron. Higher Educ., Jan. 24, 1990, at A17, col. 1 (chairman of National Endowment for the Humanities believes that there is a false dichotomy between process and content in core curriculum debate); Eugene M. Hughes, Commentary: Taking Responsibilityfor CulturalDiversity, BLACK IssUEs HIGHER EDUC., Jan. 18, 1990, at 24 (favoring culturally diverse curriculum at the university level); Eileen M. O'Brien, Debate Over Curriculum Expansion Continues, BLACK IssuEs HIGHER EDUC., Nov. 23, 1989, at 1 (discussing debate over contents of core curriculum); Scott Heller, Press for Campus Diversity Leading to More Closed Minds, Say Critics, Chron. Higher Educ., Nov. 8, 1989, at A13, col. 2 [hereinafter Heller, Pressfor Campus Diversity] (discussing meeting where many attendees agreed that core curriculum should focus on western civilization); Scott Heller, Model Curriculumfor Colleges Proposed by Humanities Chief, Chron. Higher Educ., Oct. 11, 1989, at Al, col. 4 (report by National Endowment for the Humanities emphasizes western texts); Scott Heller, New Attempts Planned to Define Core Curriculum, Chron. Higher Educ., Oct. 11, 1989, at A14, col. 1 (highlighting debate on merits of structured general-education sequence); Scott Heller, Colleges Told to Stress Tradition and Shared Views Even as They Bring More Diversity Into Curricula, Chron. Higher Educ., Oct. 4, 1989, at A16, col. 3 (university president urges educators to stress what is in common and not what is different); Forum: Who Needs the Great Works?, HARPER'S, Sept. 1989, at 43 (colloquy on the canon and core curriculum between E. D. Hirsch Jr., Gayatri Spivak, Roger Shattuck, Jon Pareles, and John Kaliski); Elizabeth Greene, 'Teach the Conflicts, Teach the Conflicts,' Preaches This Humanist, Chron. Higher Educ., Feb. 8, 1989, at A3, col. 2 (a professor urges educators to teach about the debate itself); James Atlas, On Campus: The Battle of the Books, N.Y. Times, June 5, 1988, § 6 (Magazine), at 23 (discussing debate over "canon" and "books that constituted the intellectual heritage of educated Americans, that had officially been defined as great," id. at 25). 1514 CALIFORNIA LAW REVIEW [Vol. 79:1511 thoughtless faddism and neglect. As a result, say these observers, today's students are culturally illiterate and display alarming gaps not only in their knowledge of our civilization and shared heritage but also in their appreciation for the great universals that unite humankind. These defenders of a traditional canon propose the definition and transmission of a core of classic