Playbook for Student Resistance

In the aftermath of the national election, many students are looking for ways to respond to what they see as a greater need for and focus on social justice in their studies and their field work as students.  In the early 1990s, as a law student, I was honored to have been a part of a team of students, faculty, and practitioners that brought a legal action to halt the U.S. government’s detention of HIV+ Haitian refugees on the US naval base on Guantánamo Bay, Cuba, long before that site became a household name.  I have written about that experience here, and include a few practical pointers for students looking to take on similar social justice projects today.  Please share the piece if you think it helpful to any of your students.  If of interest, a full-length, law review-style treatment of these issues is also contained in a forthcoming piece in the New York Law School Law Review.

Dealing with the Aftermath of the Election

I just re-read Mary Lynch’s passionate and thoughtful post about teaching to students traumatized by the election, along with comments in response.  I share many of the reactions described there.

In the aftermath of the election, I wrote several posts on the Indisputably blog that complement these ideas.  These posts are part of a general theme emphasizing the importance of seeing the world through others’ eyes.  This is an important practical orientation for lawyers and other dispute resolution professionals in their work.  I think it is also valuable for dealing with conflicts in our daily lives as well as in the political realm.

In a post entitled, How Can We Build Common Ground Between Bubbles?, I suggested that probably most of us live in bubbles as society has become more polarized and less emotionally safe.  I described how many people, on all sides of the political lines, feel painfully disrespected by the others.

I suggested that it may help to start by using a neutral, mediator’s mindset to sympathetically understand how the world looks from others’ “bubbles” without evaluating the merits of the views.  A fundamental part of the conflict reflected in the election seems to be about identity – who is worth respect and help and who is not. Recognizing the reality of people’s experiences and empathizing with the pain felt by people on all sides is really hard especially because some people feel that acknowledging others’ problems is an implicit devaluation of their own problems.

Starting by understanding different perspectives does not require that people believe that there is equal merit on both sides.  I certainly don’t believe that.

In a later post, I suggested that the approach and tone of then-Senator Obama’s 2008 More Perfect Union speech provides a good model for trying to build common ground.  It described perspectives of blacks and whites in the US, and judged them sympathetically without suggesting that one was better than the other.

After serious effort to understand others, we should judge as Senator Obama did. All ideas are not equally valid or beneficial (or harmful).  So being non-judgmental isn’t a good solution. People should not agree just for the sake of agreeing.  Rather, I think that people should try to constructively engage in conflict, though that’s easier said than done.

I also posted two messages from the National Coalition on Deliberation and Dialogue.  One provides general suggestions and resources for dealing with the aftermath of the election. The other provides tips for better Thanksgiving conversations.  These ideas may be helpful for family gatherings during the upcoming winter holidays.

Of course, these posts provide more detail about all of this.  They stimulated a number of comments, including some controversy about how to best manage holiday conversations.

I wish I felt confident about a solution to recommend for constructively dealing with the highly polarizing conflict reflected in this election.  I don’t.  I hope that the ideas in my posts may be helpful in figuring this out.

The Voices We Can’t Hear: How Student Loan Debt Helps Maintain The Status Quo

When I began this blog post, I admittedly started in a completely different direction. I kept coming back to a topic that has always intrigued me; how is it that the students we teach get to the point where they are in our class or clinic?  What was the path that brought them here? What were their motivations and what did they originally seek out to accomplish? But I also wonder, and what led me to this particular topic is, who could be here, but isn’t?

This post addresses in part, one of the challenges that presents itself for both current and potential law students. Debt. I often wonder if we are doing enough as law professors to encourage students to not only enter public interest work but make sure motivated and passionate students who face multiple barriers, including socioeconomic and class background, are able to view law school as a realistic option in the first place. One of the ways I believe we can bridge the gap between underrepresented student groups of all types and the traditional law student is supporting (and assuring students are informed about) loan forgiveness programs such as the Public Service Loan Forgiveness Program (PSLF).

For those of you not familiar with the program, PSLF is a program that allows an applicant to have their federal loan debt forgiven after 120 on-time payments while working in qualifying nonprofit, government or other public interest employment. For law students who want to work in public interest, this can make law school more realistic.

PSLF has been on the chopping block in Congress a few times in recent years and, admittedly, a selfish fear comes to mind with the new incoming administration: will it support programs like this? This topic may seem unimportant given the serious concerns we and many of our students have (and are aptly described in Mary Lynch’s recent blog post). We know we must support our students. But I keep coming back to the voices of the talented, dedicated students who never made it to law school, and not for lack of talent or ambition.  Many of the voices who are locked out are likely those who are able to speak to economic and racial injustice better than most in our elitist profession.

Statistically, law school debt has affected some groups more than others. Here I focus on one example; first generation college students who go on to attend law school. According to the LSSSE 2014 Annual Survey, first generation students have more debt than non-first generation students. This is thought in part to be attributed to lower levels of family income and support, and educational degree expectations and plans. 48% of Hispanic, 43% of black/African-American, 25% of Asian and 23% of white law students are first generation college students.  Among other factors, the exorbitant cost of law school closes the door of opportunity to be a lawyer before many even have a chance to pass through it. Some are willing to take on the debt to pursue higher education, but for those who aren’t—or realistically can’t—the door is not only closed but appears locked.

Generally, first generation students in law school are in the minority, at 27%. They usually have to work outside school, and they are able to participate in less extracurriculars as a result.(LSSSE)  A 2015 op-ed from the National Law Journal  spoke to how the neediest students end up with more debt because scholarships are often merit-based (LSAT scores) instead of based on financial need. Considering the correlation between high parental education and high LSAT scores, the author argues that the neediest applicants are doubly disadvantaged; “They are least likely to gain admission and, even if admitted, they are least likely to be awarded the most generous scholarships.”

Putting this into perspective, the numbers surrounding law school costs and debt—with which I’m sure you are all familiar—are staggering:

In 2014, the average law student graduating from a private law school accumulated $122,000 in student loan debt, and the average public law school graduate had accumulated $84,000. This does not include an average of $30,000 in student debt for undergraduate studies. By contrast, according to a 2014 survey by the National Association for Law Placement, the starting salary for a legal aid lawyers was $44,600, and for prosecutors and public defenders, starting salaries for each were approximately $50,000.” Public Service Loan Forgiveness: ABA Supports Preserving Federal Public Service Loan Forgiveness-One Pager 

A common argument against keeping programs such as PSLF is that students are uneducated about the consequences of loans and should be held responsible for the payments. Doing the math, it doesn’t make much sense to take on a debt of $140,000+ only to have a chance of working in a highly-competitive job in the $40,000-50,000 range. With the consequences of loan debt so apparent, and the alternatives so few, we are in fact telling future public interest lawyers that they are bound to a life of high debt unless they receive a scholarship or they (or their families) can afford the high tuition.

Programs like PSLF can be a threat to the enormous profit the federal government makes on student loans every year.  At the same time, from an economic perspective, less loan debt means more spending power, which results in more money being pumped into the economy, housing market, etc. As a society, we pay a lot of lip service to the importance of an education and then chide students for taking out loans to afford that education.  High debt has delayed many borrowers from getting married, having families, and buying houses. If nothing else, maybe the fact that borrowers with loan forgiveness would pump money back into the economy will sway the incoming President, who has already spoken out against the high costs of education and the profit the government makes from student loans. Even considering the political compromises that go into budget proposals, I was disheartened that President Obama proposed to limit the PSLF loan forgiveness to $57,500 in his 2015 budget proposal. As a former community organizer and law professor, he was no doubt aware of the high costs of law school and low pay of public interest work. It remains to be seen what our President-elect will do.

Loan forgiveness programs like PSLF made a career in public interest attainable for me. Many first generation students like myself, whose families couldn’t financially support us through college and law school, made a tough decision that others call irresponsible. I don’t regret my choice. But my ability to spend a career working as a social justice advocate will suffer if PSLF is taken away. And many incoming law students who, but for PSLF, law school would otherwise not be possible, will be cheated of a chance to pursue their dream of doing the same.

We need public interest attorneys. Many who currently have a career in public interest entered law school to do what they are doing now. Let’s keep the option open to all passionate, dedicated, and talented persons who want to work for social justice, regardless of their background or differences, seen and unseen. Support these programs at the federal and state level in any way possible. I have been inspired by the efforts of the ABA’s campaign #Loan4Giveness which followed the proposal to cut the PSLF program, as well as SALT’s B.A. to J.D. Pipeline events.  We hear a lot about educating students on the realities of job prospects and debt post-graduation. While vital, it’s equally important to recognize the injustice involved in limiting public interest jobs to those who can only afford law school without incurring substantial debt.  More generally, it’s also important to consider how the elite structure of law school encourages a select applicant pool values certain admission criteria that only continues keeping out the under-represented.

Support students by making them aware of these programs, and by sharing your own story if you or someone you know has benefited (or could have benefited) from such a loan forgiveness program. I would like to echo Jill Engle’s July blog post in saying that the privilege we have, has given us a platform. The ability to go to law school is an opportunity that not everyone has been presented with. The voice that comes with being an attorney is incredibly powerful when used for the right purpose, and if we allow schools to remain elitist institutions where anyone can apply but few can afford on their own, the status quo will not change and diverse voices will go unheard.



Keeping an experiential identity in bar passage reform

Much of the attention of legal educators nationally has been on bar results lately. Given the widespread decline in bar passage in recent years, that is a reasonable and appropriate trend. But in that response, law schools must be careful not to lose the other key parts of their identities in working to correct bar results. That includes continuing to emphasize the value of experiential learning.

ABA Standards 303 and 304 ensure that a baseline of experiential credits (six) will remain. But schools should not stop there: they should also continue to emphasize the value of experiential courses to students and explore ways to expand experiential opportunities as feasible. Yes, students need to be rigorously prepared for the bar exam. After all, many jobs in law are not attainable without passing a bar exam. But they also need to develop skills that the bar exam does not test but that are needed in practice including legal research, interpersonal skills, problem-solving generally, and many others.

Experiential courses often can help foster such skills. Though the bar exam does test and help build some core lawyering skills (like analysis, issue spotting, and critical reading), and bar reform efforts often promote further the development of these skills, the exam focuses heavily on memorization, especially in states without a performance exam component. Memorization prep is not an adequate foundation for successful lawyering.  If a school loses its identity by being consumed by its bar passage efforts, it might not encourage the full spectrum of goals a law school needs to nurture.

In short, a law school focusing (rightfully so) on bar passage must continue to grow as a law school in other ways too. And if a school did sacrifice its overall mission in the name of bar results, it would likely create other issues such as job placement and alumni disengagement problems. While offering the credits required by Standards 303 and 304 is a vital first step, it is an insufficient distance traveled towards serving law student development. We must prepare students both to pass the bar and to be a lawyer thereafter.

Examining the Bar

The Wall Street Journal reports the ABA is proposing an accreditation requirement that 75% of a law school’s graduates sitting for a bar exam must pass it within two years. The article recounts several arguments for and against this proposal, but does not question the underlying assumption that passing a bar exam indicates preparedness for practice.

Obviously, as long as licensure is required and can be obtained only by succeeding on this test, it seems reasonable to require that most graduates be able to pass it. But a fuller discussion of the issue would ask whether aspects of bar exams themselves are a problem that needs to be addressed. Ben Bratman has written insightfully on this issue, both on this blog and elsewhere.

Feedback to Students on the Skills Assessed in Exam Answers

Legal writing is not the only course that teaches written analysis. Doctrinal courses do too. Legal writing skills, including research and preparation of a work product over days or weeks, develops important skills. The skills of writing essay answers in doctrinal courses are unique in many ways. Although legal writing skills overlap with the analysis required in an exam, many skills are different. Students have to be able to analyze fact patterns and select issues, typically under time pressure. They must state rules precisely. They must apply relevant facts to rules and often reach sub-conclusions on the way to an ultimate conclusion (e.g., the citizenship of different types of parties on the way to determining whether complete diversity exists). Even more subtly, students have to make judgments under pressure about where to spend limited time in an essay answer because the issue is more important than others, facts are disputed and could lead to different conclusions based on one’s analysis, or the like.

ABA Standard 314 now requires “meaningful feedback” to students. It does not draw the line at meaningful feedback on student’s ability to brief cases, to answer Socratic questions, or other parts of the learning process. The skills of an essay exam (perhaps mixed in with multiple choice) will determine a student’s semester grade. Yet, if there is an area in which doctrinal classes have provided the least feedback (indeed, arguably, the least training in the first instance), it is in essay exam writing. First-year law students are led to believe that they’ll be equipped to answer exams if they read and brief cases, attend classes, prepare outlines, etc. Yet many are not prepared and learn only after having gone through the experience of exams, following up to see what the professor was looking for in an answer, and adjusting as they make their way through law school.

Having recently given my first graded mid-term in civil procedure, I’m convinced that I have not in the past (without such a mid-term) prepared students as well as I could have in performing the particular skill involved in time-pressured written analysis of legal problems. I recently had my class take an essay in which they had an hour to write an essay answer responding to a challenging jurisdictional essay. I then prepared a rubric showing the point range for each part of the answer and, for every student, provided a copy that reflected the points the student earned (or failed to earn) on each part. As is usually the case when I grade at the end of the semester, I saw some very good written analysis in a small segment of exams. What bothered me is that I had met with other students throughout the semester, know they had worked hard, and really believe they knew the concepts but had not yet developed the skill of exam analysis. They just needed an opportunity to write an essay answer under time pressure and see, through the rubric and our class discussion, how they could answer more efficiently and effectively.

After grading the midterms and providing them with the rubric, I carved out a class and devoted it solely to going over the exam, how to spot issue and organize them, how to recognize facts that ought to have been analyzed thoroughly, and how to work toward a logical conclusion.

I realized that this mid-term (and particularly the feedback) seemed to bring home to most students the connection between what they had learned and how they needed to express it. The growing awareness among a larger group of students about what they would have to do to answer essays was the most striking part of this process. Students had their exams, with the personalized rubrics in front of them. After the review class, students had to write a paper summarizing what they learned from the mid-term, what they did positively and could build on, where they need to develop skills, and exactly how they will go about developing the skills.

So, ABA Standard 314 has helped not only the students but this professor. I now know that I need to regularly include assessments on which I provide feedback such as I did on this mid-term. The results on the final exam in my Civil Procedure class may improve as a result of the formative assessment—or they may not. However, I believe my students in this class have received the kind of feedback that allows them to make improvements and to practice putting what they know on paper. They at least have the chance to perform well.

Teaching to the Traumatized

This past week has been a difficult one for law teachers and law students alike. The National Law Journal reported efforts made by law schools to support shocked students amidst “an emotionally charged and grim atmosphere” while taking “pains to ensure their election–related events are nonpartisan and respectful of all political positions.”  The Journal noted that the legal academy has a “well-established liberal bent” and quoted a California law professor who opined that perhaps some students were shocked because “the media and the polls did not prepare them for the actual result.” I can attest that what my colleagues and experienced this week was not the whining of a “liberal elite,” nor the unexpected disappointment of those certain their candidate who upheld their beliefs was sure to win.  What we experienced was having to teach and mentor the traumatized.

First, let me give you some background. I teach at a small, private, law school in upstate New York where one is just as likely to teach a former farmer who has never stepped foot in New York City as a New York City native who thinks Albany, New York is cow country. Often, you are teaching both together in the same class. Located in a capital city, we are very used to having students actively involved in opposing campaign teams sitting side by side in class and sharing notes.  As New York lawyers, we do not take offense at direct, unembellished, sometimes abrasive language.   A large number of our students wear business attire to class because many of them are working while attending law school; another group are primarily caring for children while enrolled in classes. There are very few trust-fund babies. Our students have an old-fashioned work ethic and are generally more civil, polite and deferential to elders than one might expect in 2016.  We emphasize open office doors and immersive faculty-student contact in good times and in bad.  Historically, we have been known to have a law and order bent and most years produce more prosecutors than the national average. Our students are also more diverse and female than when I started teaching in 1989.

As a professor who currently teaches students to prosecute domestic violence abusers and sexual assaulters and who has had countless listening sessions with victims and survivors of sexual assault and intimate partner abuse, I found that I was asked to call upon that knowledge to support, counsel, and simply listen to students. Trauma- informed lawyering calls for connecting “a person’s behavior to their trauma response rather than isolating their actions to the current circumstances and assuming a character flaw.” Sarah Katz, Deeya Haldar, The Pedagogy of Trauma-Informed Lawyering, 22 Clinical L. Rev. 359 n5  (2016) citing Sandra L. Bloom, Why Should Philadelphia Become a Trauma-Informed City, Briefing Paper Prepared for the Philadelphia Mayoral Forum, sponsored by the Scattergood Foundation (2015), 

First, I acknowledged that most of the fears expressed were not unreasonable or “crazy”. And man o man, are their fears reasonable.

  • It was reasonable for female students to fear that their birth control coverage could or would be eliminated and that their personal control over their own bodies could be eliminated again during their careers. (Note that while I was typing this blog post line the following New York Times article popped up on my computer trying to analyze whether the new President and his team will do just that.
  • It was reasonable to fear for immigrant family members who might need to make a safety plan and keep documentation very secure because of the rhetoric around immigration.   (Our Immigration Clinic Professor Sarah Rogerson has had to quickly pivot to address the uncertainties her students face in trying to properly advise clients with immigration issues in the face of what has been threatened during the campaign)
  • It was reasonable for students to fear that younger family members would be more at risk because of the President-elect’s inflammatory language targeted at communities of color, Mexicans, and Muslims or that they would be more at risk because of their transgender identity.
  • It was reasonable for my prosecution students to fear that working at the Department of Justice in the new era included might mean threatening and jailing political opponents. See Legal Intelligencer (A presidential candidate, in a script written and performed by despots everywhere, threatens to lock up his political opponent if he prevails. Of all the feared abuses of government power, isn’t this the most frightening of all-the power to falsely accuse and wrongly imprison?)

Second, I deferred to the expertise of my students on non-gender issues. And man oh man, are they experts. In anti-domestic violence work, we often say “She is the expert on the abuser.” That analogy was apt here.  Our students who have faced hateful racial or sexual orientation/identity slurs, illegal stop and frisks, and unwarranted suspicion because of their Muslim religion understand in a visceral and concrete way the signals and the risks for safety that I can only imagine and predict intellectually.  And just like survivors of abuse, they were right about predicting the coming violence. The Southern Poverty Law Center has counted at least 200 incidents since the election and the list keeps growing. These incidents include a Victory parade by the KKK and children being exposed to racial epithets in public school.

Third, it was appropriate for my students to be stunned by the Jekyll and Hyde quality of America. Survivors of abuse talk about being stunned when the first time the abuser raises a hand or when the violence dramatically escalates is during pregnancy. It seems counter-intuitive.  Similarly, my students married themselves to the American dream of fairness. They worked hard, they thought their race or gender or ethnicity or religion would not bar them from reaching their dreams. Students interpreted the voting statistics understandably as a hateful, fearful rejection of them and their dreams.  A wide swath of the American populace – the folks that as lawyers they want to represent and serve – failed to stand up at the polls and say NO to hate and bias.

Fourth, although on paper our Constitution and civil rights protection are terrific, in practice they are only as good as the human beings who are elected to uphold them. Just as it is counterproductive and dangerous to advise survivors of violence that the legal system will be fair, protect the innocent and hold the abusive accountable, so too it would be fool hardy and dangerous for me to try to comfort my students by minimizing their concerns and assuring them everything will be fine.

Fifth, my colleagues and I had to find ways to empower students, just as a client-centered lawyering or victim-centered prosecution would. Some of us spent much time doing this through faculty office conversations, checking in with students in clinic workspaces or in hallways or the cafeteria. I sent e-mails quoting Tolkien, Harry Potter, Langston Hughes, and Leslie Knope and video clips of Maya Angelou’s “Still I Rise” and welcomed suggestions back regarding James Baldwin and Van Jones.  On threads on our faculty e-mails, we shared advice and ideas and reactions.  Two of my colleagues decided to take the trauma and fold it into an empowering teaching activity about lawyering. Professor Christian Sundquist  reacted to the upset and depressed-looking faces in front of him on Wednesday in his Tech and Privacy Law class by asking the students to engage in a short reflection exercise on how they would describe the impact a Trump presidency may have on the status of privacy law and rights (e.g., surveillance, health decisional rights, etc.). The students thanked him for artfully addressing the “elephant in the room.” Another colleague, Professor Keith Hirokawa, who teaches Environmental Law, noted the “awkwardness in the air” and the distracted human beings sitting in front of him given that a climate change denier is the lead Environmental voice on the transition team. He adapted his teaching this week using a class design model provided by Professor Victor Flatt assigning students to think through and draft memoranda to the Presidential transition team on Environmental Issues.  A faculty peer observer noted

One takeaway from observing this class was that Keith was able to hold space for students with diverse opinions, while also providing a cathartic space for students who are grieving the outcome of the election. By engaging the students in the work that real lawyers are doing as we speak in Washington, DC and New York (the two host sites of the transition team), students were able to process their reactions through tangible legal research and policy analysis, developing their skills as emerging attorneys and (hopefully) finding some comfort in the law.

Sixth, we focused on self-care for students, staff, alums, colleagues and ourselves. We gave out hugs and food, took walks with students, and discussed exercise, nature, loved ones, favorite comfort activities. We explored how to create boundaries with those who were jubilant about their candidate’s victory.  I thought about the readings I provide students on vicarious trauma and how to overcome it and about Professor Jill Engle’s wonderful article “Taming the Tigers: Domestic Violence, Legal Professionalism, and Well-Being,” 4 Tenn. J. Race, Gender & Soc. Just. 1 (2015) describing how she and her clinic students struggled with the trauma induced by the death of their client at the hands of her abuser, just three days after they had served him with a divorce complaint. Professor Engle focused on her role as a “self-aware mentor” focusing and modeling self-care, balance and mindfulness. She reached out to other law professors and colleagues for help in navigating teaching through the crisis and she allowed the students to move from the stage of engaging in healthy professional self-awareness to using the emotions and trauma as a catalyst for social justice activity.

I also recalled the advice of well-respected researchers in the area of lawyer and law student mental health. Professor Engle aptly notes, “[G]reat teachers care how students are doing in life. Teachers that care about people help counter declining civility in the legal profession and convey the idea that people and their feelings matter.”  NANCY LEVIT & DOUGLAS O. LINDER, THE HAPPY LAWYER: Making a Good Life in the Law, 54 (2010). Professor Lawrence Krieger’s research leads him to assert that, “[f]aculty modeling is an indirect, but pervasive and powerful source of messaging to students about the appropriateness of authenticity, conscience, interpersonal awareness, and humility,” and that, “[s]elf-reflection . . . should lead us to conscious modeling of authenticity, inspiration, and the holistic personality our students will need as professionals dealing every day with the complex interpersonal situations typical of law practice”. Human Nature as a New Guiding Philosophy for Legal Education and the Profession, 47 WASHBURN L.J. 247, 289-90 (2008)

Seventh, we have started to assemble good information to provide for those students who want to use their legal skills, their empathy, their passion and their hurt as a catalyst for change. Just as good client-centered lawyers provide information about the law and the legal system to clients, in a hopefully non-judgmental way, so too we need to be resources for those students whose traumatic reaction progresses to energy around creating change. (More about that in my next post).

Many of our readers this week have done all I describe above and probably much more. If you are in the stage of the process in which you need to exercise self-care to truly be an authentic self-aware mentor, I encourage you to attend to that restorative need. If you have already moved into action on social justice, I applaud you. If you are thinking about the many lessons which are critical for legal education at this moment and how to teach them without reference to particular political outcomes, I invite you to post a comment below.  You are Great Teachers All.

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