What’s in a Name? Teaching Implicit Bias

Every semester I weave into my classrooms several opportunities to teach about implicit bias. I have shown videos like this and led discussions on articles like this.

Last week in my Family Law Clinic seminar, we discussed Peggy McIntosh’s Unpacking the Invisible Knapsack, which describes the author’s quest to overcome her biases stemming from white privilege. A student shared their pain and frustration over college and law professors never using their full name, and often mispronouncing the parts of their name the professor is willing to speak out loud. “It’s dehumanizing,” my student said.

Those words have haunted me all week. Names are fundamental parts of human identity. Why can we, as educators–members of an elite profession–not get this right? Why is it not a norm in higher education for professors and teaching assistants to learn to pronounce every student’s name?

Also this week, I read in a memo from a colleague a to-do item along the lines of “practice pronouncing graduates’ names.” The colleague was sharing with me tips for the job I will soon begin: associate dean for academic affairs. One privilege of this job is reading the names of all Penn State Law graduates at the annual commencement ceremony. It was profoundly touching to learn that my colleague takes the time to practice every graduate’s name–and they felt it important enough to share with me as one of a handful of their significant monthly action items.

I give all my students the opportunity to share the pronunciation of their name with me on the first day of class, on note cards I keep with me at every class. An earlier post explained more about the note card system, which I learned from fellow blogger Paula Schaefer. Pronouncing each student’s name is challenging, and I sometimes falter. Last semester I began writing the pronunciations on my seating chart, to minimize my fumbling through the note cards. This is my seventeenth year of teaching. My only regret is not starting this earlier. It enriches my classroom, and it enriches me. It bakes into my pedagogy an indirect lesson about implicit bias, a lesson I re-learn every time I call on a student and say their name, whether it is Ainslie or Zhao-Ji.

Advertisements

New Blog on Teaching and Learning Features Contributions from Law Faculty

Touro College has launched a Teaching and Learning Exchange Blog that all are welcome to drop in on.  Some of the recent posts discuss topics this Best Practices blog has highlighted in the past. For example, recent postings from four law faculty include: Laura Dooley , Hypo Hell: Using Short Form Questions in Class to Engage Students with Important Texts; Jack Graves, Multiple Choice Questions as an Integral Part of an Effective Assessment Regime; Dean Harry Ballan (and Dylan Wiliam), In Defense of Multiple Choice; and Meredith Miller, Day One: You Never Get a Second Chance to Make a First Impression.  Other interesting posts from faculty across the College include: Attention, Memory, and  Learning: What Do We Know? So What?, “I’m Not an Actor?” and Curiosity Feeds the Cat. Please bookmark this blog, facilitated by Dr. Rima Aranha.

Leadership Courses: Paving the Path for Future Attorneys

Written by: Dean Rosemary Queenan, Albany Law School; and Dean Mary Walsh Fitzpatrick, Esq.

 

There is a call to action to provide students with the opportunity to build leadership skills. This call originates, in part, from the changing legal services environment and the recognition that lawyers need to know more than the law: they need to master many disciplines that are commonly and collectively referred to as “leadership” skills. Broken down into its separate parts, leadership may include communication, teambuilding, organization, presentation, active listening skills, and a cadre of emotional intelligence competencies.

To answer the call, Albany Law School has developed and added to its course offerings a new Lawyers as Leaders course, which is being taught collaboratively by Mary Walsh Fitzpatrick, Assistant Dean for the Career and Professional Development Center and Rosemary Queenan, the Associate Dean for Student Affairs. The course will use skills-building exercises and constructive feedback to allow students to practice leadership skills. Students will create their own organizations and will be assigned to take on leadership roles in performing certain tasks including identifying a vision for their organization, managing and working with teams, making difficult decisions, navigating difficult conversations, presenting and communicating effectively and problem solving.

Our first class focused on a discussion of the work of Carol Dweck, Ph. D., Peter Senge, Ph. D., and Daniel Goleman, Ph. D., on mindset, emotional intelligence, and leadership styles, in the context of our broader discussion of what makes a great leader. With this introduction, students were asked to assess and identify their own leadership styles and emotional intelligence attributes. Each organization was also asked to research a leader in business or law and present on that leader’s failures and successes in leadership.

We are looking forward to this first-of-its-kind course to be offered at Albany Law School and are confident that every student will benefit in some way from the experience. Stay tuned, as we will provide updates on our progress and outcomes along the way!

Letters raise concerns about changes to the bar pass accreditation standard

Early next week, the ABA House of Delegates will again vote on whether to approve a revised bar passage accreditation standard [Standard 316]. The Society of American Law Teachers and the ABA Diversity Entities both have written to the ABA House of Delegates setting forth significant concerns about the proposed standard change.  Both letters are worth a full read.

Amongst the issues the letters raise about the proposed change are the following:

1.  There is incomplete data about how it will affect HBCU’s and other law schools with significant enrollment of people of color;

2.  It fails to account for state bar exam cut score differences and differences in state bar exam pass rates;

3.  It may result in even greater reliance on LSAT scores in the admissions process despite studies showing the scores’ limited predictive value for academic or bar exam success at many schools and despite warnings from the LSAC about how to use the scores properly in the admissions process;

4.  It may negatively impact schools willing to take a chance on students who are poor standardized test takers but who will be excellent lawyers and leaders if given the opportunity to attend law school and the coaching necessary to pass the bar exam;

5.  It does not consider the effect of transfer students on bar pass rates for schools that admit students who otherwise would not be admitted to law school, who perform well, and who then  transfer to other institutions;

6.  It eliminates some important aspects of the current Standard that take into account varying state pass rates, a school’s mission, the transfer issue, and the fact that improving bar passage is a complex and nuanced issue that requires study and experimentation [something currently underway at many schools];

7.  Now is not the right time for change given current studies about the validity of the bar exam as a licensing method and work being done to explore law licensing assessments that better measure who will be a competent attorney.

Proponents of the proposed change to Standard 316 believe it is necessary to protect consumers from law schools that admit students without devoting the necessary resources to ensure bar passage or that admit and retain students who have no chance of obtaining a law license.  The letters cited acknowledge the importance of the consumer protection issue but argue that issue can, and should, be addressed in other ways.

If you have concerns about the proposed change to Standard 316, contact your state ABA delegate.  The delegate information starts on page 13 of the ABA 2018-2019 Leadership Directory.

A Fresh Look at the Uniform Bar Examination

The bar exam is back in the news. Later this month the ABA House of Delegates will consider a proposal to raise the bar-passage standard. The proposal would require that 75% of an accredited law school’s graduates pass a bar exam within two years of graduation.

In most states, bar exam means the National Conference of Bar Examiners’ Uniform Bar Exam. The UBE has been adopted by 35 jurisdictions and is under consideration in others. It carries the endorsement of many ABA-related entities. They include the Conference of Chief Justices, the Law Student and Law Practice Divisions, the Section of Legal Education and Admissions to the Bar, and the House of Delegates.

As a reminder of the features of the UBE, and an update on the pace of its adoption, I have accepted Mary Lynch’s gracious invitation to reblog my recent post “Will the Uniform Bar Exam Come to Michigan?” from the Western Michigan University-Cooley Law School blog. (Spoiler alert: no time soon.)

Leadership Education in Law School: You’re Already Providing It

Regardless of whether they think of themselves as leaders, our law students will play a leadership role for the rest of their lives. Certainly many will be leaders in their local legal community, in their law offices, and in various bar associations. But beyond that, all lawyers will be expected to lead outside of their law practices. As a lawyer (and sometimes the only lawyer) in their community group, family, or organization, they will be looked to for leadership.

Just as our students may not recognize themselves as leaders, we may not recognize ourselves as teachers of leadership. But we are. Most of our classes provide excellent opportunities to talk about leadership, even if “leadership” is not in the title. And we model leadership in how we treat our students and other members of the law school, how we contribute to and connect with our communities, and how we help move our law schools forward to address the changing profession.

Recognizing the growing interest in leadership education for lawyers, the AALS Section on Leadership was chartered in November 2017. The section describes its purpose as promoting “scholarship, teaching, and related activities that will help prepare lawyers and law students to serve in leadership roles.” This section is a great place to start for a law professor who wants to learn more about leadership education.

Law professors interested in getting some innovative ideas for integrating leadership-related topics into their classes should consider attending a workshop and roundtable at the University of Tennessee College of Law on April 4-5, 2019. The program is titled Leadership Development for Lawyers. The “workshop” day of the program will give attendees the chance to choose two of four interactive sessions: collaborating with career services; integrating well-being into leadership curricula; assessing leadership development efforts; and effective leadership skill development exercises. Then, the “roundtable” day of the program will provide an opportunity for conference attendees and panelists to share ideas and experiences in leadership education.

The goal of the Tennessee workshop and roundtable is to bring together a large group of legal educators who are working in the area of lawyer leadership education–including professors who don’t (currently) think of themselves as “leadership” teachers.

 

 

Disruptive Leadership in Legal Education

Nicholas A. Mirkay and Palma Joy Strand*

NOTE: This is an abridged version of the full essay available at: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3309981

“The act of leadership is not always comfortable.”[1]

Last spring, the Wall Street Journal unveiled “The Captain Class,” a new feature focusing on “the lessons and strategies of leadership.”  The inaugural column by reporter Sam Walker focused on leadership changes at Boeing over the last decade when its Board of Directors intentionally hired Jim McNerney, a “disruptive leader,” to redirect the company’s trajectory.[2]  “The company had been floundering, and the digital revolution was barging down the gangway.” The landscape for Boeing’s business had transformed, and Boeing needed to adapt.

Disruptive leaders who reorient institutional culture, Walker observed, necessarily “embrace conflict, are ruthlessly direct, and intellectually irreverent.”  Theoretically there is a “gradual way to renovate a proud old institution,” but change rarely unfolds that way.  Rather, “[h]istory shows that it usually comes down to one determined individual—someone who bursts through the door swinging a 7-iron.”[3]

While neither of us regularly swings a 7-iron, to our own surprise we recognized ourselves in the description of disruptive leaders prodding a proud old institution to evolve to meet a changing environment. Two years ago, both of us were full, tenured professors at the Creighton University School of Law.  We sought to position the law school as a leader in responding to the shifting and uncertain landscape that currently characterizes law, the legal profession, and legal education.  Because of institutional resistance to change, however, neither of us remains in our former positions.  One of us is now a tenured Professor of Law at the University of Hawaiʻi Richardson School of Law; the other is still at Creighton and still a tenured Professor of Law, but no longer in the School of Law. 

Legal Education is Ripe for Disruption

Legal education is ripe for disruption because the legal profession and law itself are ripe for disruption.  The crisis in legal education reflects an increasing mismatch between the limited services that law and lawyers provide and vast and acute societal needs for legal services. 

In addition, law has become increasingly attenuated from justice in the sense of contributing to the creation of “right relationships” between and among people.  Because law is inaccessible to most individuals, it is irrelevant to them except as they are subjected to bureaucratic regulation by the government.  Law has become a burden rather than a useful tool for people figuring out how to live together.  A significant proportion of students come into law school seeking to work for justice, yet law school and the legal profession too often send the message that justice is irrelevant.

Nontraditional processes that allow for coordination, collaboration, and conflict engagement and resolution have already overtaken courtroom and law office services.[4] Arbitration, mediation, restorative justice, collaborative governance, LegalZoom, negotiated settlements and regulation, and more were once secondary to litigation and other lawyer-dominated processes.  The balance has now tipped, yet the focus of legal education and the legal profession on lawyers obsessively grooms the traditional tail while ignoring the ever-evolving dog.

As a result, legal education is “at a crossroads…legal educators should be talking about an entirely new business model.”[5]  Law professor William Henderson, who analyzes the legal profession and legal education, concurs:  “Legal education and the legal professions are at an inflection point where traditional models of education and practice no longer fit the shifting needs of the market.”[6] In a recent speech on “The Future of Legal Education,” departing Brooklyn Law Dean Nick Allard described change in the profession as “inevitable” and warned that “clinging to the ‘business as usual’ status quo” is not a viable option.[7]  At the same time, Allard characterized the legal profession and legal academia as “always slow and even resistant to adaptation.”[8]

Lawyers need not be the only providers of legal services.  Doctors today work alongside not only nurses but other health care professionals with diverse training and diverse skills; these teams extend the reach of the health care system.  Similarly, with additional legal professionals, the work of lawyers could reach much further than it does at present.  There has been a recent uptick in the number of persons taking the LSAT[9] and applying to JD programs in law schools.[10] While this trend lulls law schools back into comfortable reliance on the JD, a few additional lawyers will not meet the pressing demand for legal services.

The Opportunities and Pitfalls of Disruptive Leadership

When we arrived at Creighton School of Law, one of us in 2007 and the other in 2011, each of us had been faculty members at other law schools.  We saw Creighton’s small scale and personal relationships in Nebraska as creating an ideal environment for innovation and for nimble responses to the documented lack of legal services in both urban and rural parts of the state.  We were energized by the opportunities presented at a small regional private law school with close ties to the local legal community and the state bar.  We were particularly excited by Creighton’s Jesuit mission of service to others and its expressed commitment to social justice endeavors to form graduates and benefit the community.  A new, yet already nationally-recognized program in Negotiation and Conflict Resolution provided in-house expertise in innovative approaches that complement and expand the effectiveness of traditional law.

Within two years, however, a cohort of fellow faculty members, drawn predominantly from the ranks of those with the most seniority, had negatively branded us “reformers” who were seeking to move students away from “real law.” Overall, our relatively mild exercise of disruptive leadership through leadership in strategic planning and assessment, which envisioned a robust Law School response to fundamental shifts in the legal landscape, was met with a level of blowback that neither of us could have imagined.

In the face of this resistance, which escalated into a personal attack and to which a fledgling University administration capitulated, both of us sought and secured other academic appointments.  The newly-hired dean was “invited” to move out of the administrative suite and into an office on faculty row after an unexpected sabbatical year.  The Negotiation and Conflict Resolution Program was transplanted to a Department of Interdisciplinary Studies in the Graduate School and its expertise and vision quarantined from the JD curriculum and students.

Academic Resistance to Change: Tenure, Academic Freedom, and Administrative Disinterest

Though legal education in the abstract may be ripe for disruption, disruptive leadership in a real-world law school setting is a tough and potentially perilous road.  Legal education is closely tied to the legal profession, and as long as lawyers have a monopoly on law, changes in legal education that respond to broader imperatives will face the challenge of not being “real law” because the entry to the legal profession lies exclusively through the straitjacket of the bar exam and admittance to a state bar.  Further, placement of legal education in universities subjects it to academic constraints that dampen potential change initiatives.

We see three characteristics of academia in general—characteristics that are not limited to legal academia—that contributed to resistance to our disruptive leadership and that are likely to ground resistance to disruptive changes in legal education generally.  The first characteristic is tenure.  Academic tenure, intended to protect and encourage open discourse, has the additional effect of protecting entrenched faculty and perpetuating institutional inertia.  The most seasoned and senior engineers at Boeing have less job security than the least productive tenured faculty member at an average college or university.  Tenure gives faculty members who resist change a powerful and easily wielded weapon:  They can choose to “not go gentle into that good night” but “[r]age, rage against the dying of the light.”[11] 

The second characteristic, related to the first, is academic freedom.  The lofty goal of academic freedom is to ensure the free and fair dissemination of views and ideas. But academic freedom can turn from shield to sword. The claim that academic freedom is being infringed can be used to challenge administrative efforts to monitor academic quality through program assessment.[12]   Even more troubling, “academic freedom has been claimed as an excuse for the most abusive and uncollegial behavior—shouting at colleagues, publicly berating students or staff members, defaming supervisors or other university administrators, shirking professional duties.”[13] 

Third, the imperatives of university administration and governing boards focus on raising funds and maintaining tradition rather than on responding innovatively to shifting economic and social dynamics.  University presidents spend a substantial portion if not a majority of their time fundraising,[14] often appealing to alumni,[15] whose views of the school necessarily look backward rather than forward.[16] University presidents and provosts may also lack essential knowledge regarding “research on innovation and their own role in the process”[17] as well as essential leadership skills, especially those related to change and conflict.  Nonprofit board members are accountable by law for fiduciary duties owed to the institution, but these duties are enforced only rarely by the Attorney General of the state in which the organization is chartered.

Law School Exceptionalism: Monopoly and Gender Dominance

The dynamic between university administrators and law schools is especially likely to be inhospitable to necessary changes.  For decades, law schools were cash cows for universities: Large class sizes and minimal hands-on clinical offerings led to law school revenues that supported other academic programs across campuses.[18]   Because of law school financial contributions, university oversight was relatively deferential, and both central office administrators and law faculty grew accustomed to laissez faire management.  Add in accreditation of law schools by the ABA, which until very recently did not even require meaningful assessment of JD programs, and you have a recipe for habits of non-accountability.  Moreover, university administrators may well be cautious about taking on entrenched and tenured law faculty who as lawyers might be expected to be relatively litigious, as we experienced. 

Two additional characteristics of legal education in particular contribute to militant resistance to disruption.  The first is the ABA’s monopoly on both the practice of law and the accreditation of law schools.  According to Professor Henderson, the legal profession is currently challenged by an environment in which “the cost of traditional legal services is going up, access to legal services is going down, the growth rate of law firms is flat, and lawyers serving ordinary people are struggling to earn a living.”[19]   Lawyers, who themselves are JDs and graduated from law schools configured to meet 20th-century needs, are in control of how legal practice is defined and regulated and of setting barriers to entry.  Lawyers wield “unauthorized practice of law” sanctions as a protection against competition despite the fact that much of the law that non-lawyers seek to practice is law that lawyers find tedious and unprofitable.[20]  

The effects of this monopoly are compounded by a second characteristic of law and legal education: a lack of diversity.  Law and legal education today remain highly gendered: Men and traditionally masculine norms permeate the profession and continue to dominate in law schools even as student enrollment approaches gender parity.[21] The two of us began collaborating as institutional leaders at Creighton as members of the School of Law’s Strategic Planning Committee.  Both of us had been elected by the faculty.  One of us (Nick) was Chair; the other (Palma) was a member who had served on the Committee for a number of years.  It was evident that we enjoyed working together and that we were a strong team.  After one contentious strategic planning meeting, a very senior (white male) member of the faculty made a point of warning Nick (via another colleague) that Palma was “emasculating” him.  A group that has been dominated by a single gender may resist a shift in gender dynamics as well as changes in practice initiated by more diverse decisionmakers.[22]

The Non-Ethics of Non-Disruption

Legal education is ripe for disruption, and disruptive leaders can challenge conceptual mindsets constructively, using technology and data analytics to map changing landscapes and reframe conversations about the future.[23]  In a changing world, adaptation allows organizations to not just hang on but to thrive. 

The casualties of law schools hanging on to the familiar are the students—the very people an educational institution exists to serve.  Is it ethical for law schools to mindlessly continue to train students for a profession that is shifting under everyone’s feet?  Is it ethical for the legal profession to wring its hands about “access to justice” while maintaining its protectionist posture?  Is it ethical for university administrators to pocket law student tuition dollars knowing that the debt those students incur is buying them an education that is unlikely to render them financially secure?  These are the unwelcome questions that disrupters in legal education should be raising – and that law and the legal profession should join in addressing.


* Director of Faculty Research and Professor of Law, University of Hawaiʻi Richardson School of Law, B.S.B.A. Saint Louis University (1989), J.D. University of Missouri (1992), LL.M. Georgetown University Law Center (1996); Professor of Law and Director, 2040 Initiative, Negotiation and Conflict Resolution Program, Department of Interdisciplinary Studies, Creighton University, B.S. Stanford University (1978); J.D. Stanford Law School (1984); LL.M. Georgetown University Law Center (2006).  We thank colleagues, past and present, who reviewed and commented on this essay.

[1] Sam Walker, One Leader Sent Boeing Into a Hurricane; Landing It Was the Next Guy’s Job,  The Wall St. J. (2018) https://www.wsj.com/articles/one-leader-sent-boeing-into-a-hurricane-landing-it-was-the-next-guys-job-1524821400.

[2] Id.

[3] Id.

[4] See, e.g., Oralandar Brand-Williams, More disputes in Mich. settled through mediation, The Detroit News (2018), https://www.detroitnews.com/story/news/local/wayne-county/2018/03/29/mediation/33406027/; and https://thelawdictionary.org/article/what-percentage-of-lawsuits-settle-before-trial-what-are-some-statistics-on-personal-injury-settlements/.

[5] Huffman, supra note 4.

[6] Bill Henderson, What signal are legal employers sending to legal education?, Legal Evolution (2018), https://www.legalevolution.org/category/legal-education/.

[7] Paul Caron, Allard: The Future of Legal Education, TaxProfBlog (June 20, 2018), http://taxprof.typepad.com/taxprof_blog/2018/06/allard-the-future-of-the-legal-profession.html.

[8] Id.

[9] Debra Cassens Weiss, Increase in LSAT test takers seen as evidence of ‘Trump bump,’ ABA Journal (2017),http://www.abajournal.com/news/article/increase_in_lsat_test_takers_is_seen_as_evidence_of_trump_bump.

[10] Karen Sloan, Number of Law School Applicants Surges, Especially Among High Scorers, Law.com (2018), https://www.law.com/2018/07/30/number-of-law-school-applicants-surges-especially-among-high-scorers/.

[11]Dylan Thomas, https://www.poets.org/poetsorg/poem/do-not-go-gentle-good-night.

[12] Timothy Reese Cain, Assessment and Academic Freedom: In Concert, not Conflict (Nov. 2014), http://www.learningoutcomesassessment.org/documents/OP2211-17-14.pdf.

[13] Gary Olson, The Limits of Academic Freedom, Chron.  of Higher Educ. (2009).

[14] Mitchell Wellman, 3 things college presidents spend all their time doing, USA Today (2017), http://college.usatoday.com/2017/01/27/3-things-college-presidents-spend-all-their-time-doing/.

[15] Rick Seltzer, Giving to Colleges Rises by 6.3%, Inside Higher Ed (2018), https://www.insidehighered.com/news/2018/02/06/personal-giving-pushes-donations-colleges-and-universities-new-level-2017.

[16] Robert M. Diamond, Why Colleges Are So Hard to Change, Inside Higher Ed (2006), https://www.insidehighered.com/views/2006/09/08/why-colleges-are-so-hard-change.

[17] Id.

[18] Megan McArdle, Law School Enrollments are Plummeting. What Happens Next?, Daily Beast (2013), https://www.thedailybeast.com/law-school-enrollments-are-plummeting-what-happens-next.

[19] William D. Henderson, Legal Market Landscape Report (July 2018), https://taxprof.typepad.com/files/henderson.pdf.

[20] See, e.g., Roy Strom, California Bar to Consider Changes to Nonlawyer Ownership Rules, The Am. Law. (2018),https://www.law.com/americanlawyer/2018/07/23/california-bar-to-consider-changes-to-non-lawyer-ownership-rules/.

[21]See, e.g., American Bar Association Commission on Women in the Profession, A Current Glance at Women in the Law (January 2017) (legal profession), https://www.americanbar.org/content/dam/aba/administrative/women/a-current-glance-at-women-in-the-law-jan-2018.authcheckdam.pdf; Dara Purvis, Female Law Students, Gendered Self-Evaluation, and the Promise of Positive Psychology, 2012 Mich. St. L. Rev. 1693 (legal education).

[22] See generally, Gabriella Gutiérrez y Muhs, et al., Presumed Incompetent (2012).

[23]Disruptive Leadership: A Recipe for Success, The Wall St. J. (2018), https://deloitte.wsj.com/cio/2018/07/09/disruptive-leadership-a-recipe-for-success/.

%d bloggers like this: