“Teaching the Next Generation of Lawyer Leaders in a Time of Polarization” – Reflections on the AALS 2019 Conference on Clinical Education

If you have never attended an AALS Conference on Clinical Education, you have missed a transforming and immersive experience that includes supportive peers, provocative learning, and meaningful scholarly discussion while celebrating student-centered community activism.   It is attended both by those who teach primarily through clinical courses and by other professors and administrators who want to learn more about clinical androgogy, experiential learning, and justice lawyering. Deans and other law school folks enjoy the intra-law school and inter-law school collaboration efforts facilitated there.  The Clinical Legal Education Association, an advocacy organization, sponsors a biannual  new clinicians workshop adjacent to the conference and supports the local community where the Clinical Conference is held through its per diem project.  The conferences are always well attended, with the 2019 conference (held last month in San Francisco, May 4-7) hosting a whopping 780 participants.

The yearly AALS Clinical Conference is not a “talking heads” conference.  The program format varies from year to year but always involves intentionally planned opportunities for mentoring and discussion in smaller groups, with ideas and resources to bring back to campus. At the end or near end of the academic year, it provides an opportunity to nurture one’s exhausted spirit and rekindle the right-brain in a community that values  fun, creativity, and play as necessary skills for long-term  survival, teaching, writing  and do-gooding. Often, cutting edge research ideas are presented here before they take hold in the rest of the legal academy or larger community.  For example, yesteryear conferences introduced legal educators to pedagogical, andragogical and curricular theories such as backward design.   In another example, I first became aware of the early research on implicit bias at a Clinical Section program, well before this concept  entered the vernacular, was discussed by the ABA, or became a CLE requirement for lawyers in New York State.

This year’s conference did not disappoint.  Its theme, Teaching the Next Generation of Lawyer Leaders in a Time of Polarization, not only was timely but was intended to suggest that, perhaps, legal educators have a role to play in decreasing polarization and advancing understanding of shared humanity.  The conference organizer’s posited the challenge this way:

Today, we and our students are confronted with threats to virtually every norm in the legal and political world –the environment we live in, a free press, election integrity, judicial independence, standards of respectful debate, facts, the rule of law. Our students appear energized and anxious to take this on, but what new tools and opportunities should clinical legal education be providing? ….

How do we build the next generation of lawyer leaders when our students have grown up in an era of strong division, attacks on institutions of government, and the frequent rejection of civil discourse? 

The conference explored how to facilitate discussion among students and others with diverse worldviews while continuing to sustain productive learning communities for all — especially including those whose identities or religious or political views are degraded by extremist or reductive narratives.  How do we continue to pronounce and support the rule of law? How do we facilitate professional engagement in civil discourse when some classrooms are sorely lacking in diversity and a few students or one individual might carry the full weight of the ignorant or degrading narrative?  The conference organizers argued we must equip our students with creativity, judgement, and a toolbox of knowledge, skills, and values that will enable the coming generation to meet these unprecedented challenges.”

Participating in the conference was wonderfully helpful to my thinking as an educator. It made me reflect and learn from others in the small discussion group settings.  Sad to say, it was not my “transmogrifier; I am not now a wise and perfect facilitator of discussion of polarizing topics. Nor am I now certified as an educational designer of flawless learning environments.  However, I do have five reflections I want to weave into my preparation for and delivery of next year’s teaching as well as import into my discussions about the legal academy.

First, I need to defend higher education and law schools when unfairly attacked. In an era when the narrative touted in some circles suggests that lefty higher education professors exist only to foist their liberal views on students,  I found the themes and discussions at this conference more consistent with my experience in academia. Instead of arrogant proselytizing, most of my sister and fellow educators, at Albany Law School and beyond, try to empower learning in their students, facilitate creative ideas in the academic setting, enhance professional development of law students/budding lawyers and encourage community benefit and access to justice through our work.  Do we always succeed? Probably not. However, most of us have the same shared goals.

Second, I need to be mindful that Americans – and probably many of our overburdened students – are simply “exhausted.” By ugly, polarizing, speech. By hateful acts. By constant “breaking news” of dysfunction in our nation’s political capital. The conference’s plenary session “America Polarized: What Drives Us Apart? What Brings Us Together?” presented the results of a research report entitled, “Hidden Tribes: A Study of America’s Polarized Landscape.” It finds an “Exhausted Majority” in the American electorate. This research has been featured in The New York Times, The New Yorker, The Atlantic, The Washington Post, The Financial Times, The Miami Herald, NPR, and CNN.

As I think of my students as containing both those excited about fighting for change but also those exhausted by polarizing discussions, how do I proceed?  How can I pick up on those cues during stressful times in the semester? How can I model and include less exhausting learning methods without shying away from ugly facts, cases, laws and legal history?  When is it time for private “one minute papers,” or private “on line feedback, submissions or comments” and when must something be thoroughly hashed out publicly?

To address this kind of polarized exhaustion, should I revisit classroom rules and class participation guidelines that facilitate learning for all my students?   In my Domestic Violence Seminar course which usually enrolls approximately 20 students, I have found some useful tools in creating an appropriate classroom climate for discussion of difficult issues. My Course Packet includes a modified version of Sophie Sparrow’s excellent Professional Engagement Expectations for the Classroom,   along with an  Assessment Rubric for Class Participation (which I modified from one my Academic Dean,  Connie Mayer,  created.  I am going to review these materials again with the concept of exhaustion in mind. (There are of course diverging views on the pros and cons of making a “safe” or educationally fertile classroom as well as what “safe” means. For contrasting views see Berkeley Education tools and an article about teaching “insensitive” topics in law schools in Atlantic Monthly). 

Third, I will remind myself of the research presented at the conference.  Research conducted by More in Common, a nonprofit research organization devoted to bridging political divides, suggests there is “more to the story” than a polarized populace. Those researchers found a wider spectrum of beliefs among Americans than one would realize when listening to, reading, or clicking on the news. They also found Americans are far more aligned on many critical issues than you might think.

For example, our data show that 75 percent of Americans support stricter gun laws, 82 percent believe that racism is at least a somewhat serious problem in America and 79 percent favor providing a pathway to citizenship for illegal immigrants brought here as children. In addition, 77 percent of Americans agree that our differences are not so great that we cannot come together.

Fourth, I will encourage students (and urge myself ) to dig underneath the polarization and understand individuals’ values and fears. Professor Daniel A. Yudkin, Department of Psychology, Yale University, a post-doctoral researcher who  presented the Hidden Tribes research results,  noted at the conference and in his NYT commentary here that

our report identifies a powerful explanation for political polarization. It shows how discrepancies in people’s “core beliefs” (their moral values, parenting philosophy, feelings about personal responsibility and so on) explain differences in their political views.

Yudkin recommends this research as an entryway to discussion for teachers and scholars.  Misperceptions surrounding values and fears can cause Americans to misunderstand and misjudge each other. An example Yudkin discusses concerns views of good parenting. Conservatives align good parenting with “manners” and “respect,” while liberals tend to value fostering “curiosity” and “independence.” Fostering a discussion about how we love our children and try to be good parents could help us understand each other’s goals and values,  even if we disagree with each other’s methods.

I will consider whether in the cases I teach, the examples I provide, the arguments I encourage students to form, the hypothetical [problems I create, whether I allow room for development of empathy for the other? Do I acknowledge the underlying common humanity of all actors – in my area, as it pertains to the “abuser”, the “sexual assaulter”, the “murderer”, the “misogynist”? Should I?

Do I focus too heavily on the best opposing argument? Do I encourage enough human empathy for the other side even when preparing students to zealously advocate for ours?

Finally, using the values celebrated and embraced at Clinical Conferences such as experimentation, joy, community support, and creativity, I will continue to struggle with but also make peace with the dynamic that advancing empathy, unity and civil discourse does not impede or undermine my obligation to call out injustice. Upholding the rule of law does not preclude admitting the many times the law fails and how it rarely meets its aspirations in the daily lives of so many of our sister and fellow Americans.

Thank you to the the AALS Clinical Conference organizers, presenters and participants and the CLEA workshop organizers and presenters for providing me so much to reflect and improve upon this summer.

 

Teaching Optimism

Chris Rock’s tweet “Are black men an endangered species? No, endangered species are protected by law,” captures at once the failure to apply our laws and when applying them to do so effectively. Scan to the recently released Senate Select Committee’s Study of the CIA’s Detention and Interrogation Program, yet another example of how we struggle as a culture with the rule of law.

How do law schools inspire students to work within a system that yields such results?

The AALS Deans Steering Committee had this to say: “Law school empowers students to become agents of change because it teaches students about the legal system of the United States, a system that has the seeds of change built into its structure.” The statement goes on to say that “The rule of law is the foundation of our society, our political system, and our economic system” and “The primary role of law professors is to teach the next generation of lawyers to think critically about problems, to understand the structure and power of law in our society, and to be thoughtful and engaged with respect to solutions.”[1]

Indeed, critical thinking about legal and other strategies that touch on social wrongs has been discussed in law school classrooms and clinic supervision for decades. However, our legacy is the workarounds and neutralizing of civil rights, workers rights, environmental, and other laws intended to help us solve social ills; the seeds of change have not borne the results expected. Students who are attracted to law school because they see law as a tool for solving problems, soon sense a system that is mightily frayed. As these students navigate the texts and training offered, they struggle with how within our venerated legal system to achieve change that will connect the law to the values they consider essential for a viable society.

Vermont Law School’s curriculum committee just approved a new course called Legal Activism: Lawyering for Social Change designed to expose students to theoretical and practical approaches to legal activism. The course will use Alan K. Chen and Scott Cummings, Public Interest Lawyering: A Contemporary Perspective (Aspen Elective 2012) as its text, taking advantage of the book’s focus on activist lawyers and legal strategies in our history. The impetus for the course was largely the disconnect between the careful web of procedure, precedent and statutes that perpetuate unsustainable results and the desire so many of our students have expressed to find paths that reflect the values they hold.

As law schools consider how to prepare students for the “new normal” (a painful phrase), we must recognize that among them are those who question the very premises of normalcy. Our challenge is to work with these students to foster a sense that they can achieve meaningful results, and that it is not too late to try. Their pursuit of change may test the structure of law in our society and its relevance to the increasingly urgent problems we face. While they may not discover more sustainable results than those achieved by activist lawyers in the past, we will do well to help them envision the possibilities.

[1] See “Statement on the Value of Legal Education,” http://www.aals.org/wp-content/uploads/2014/09/Statement-on-the-Value-of-a-Legal-Education.pdf

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