Race and the Core Curriculum in Legal Education

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 interactionsin 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 complicate 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 mattersof racialjustice, bothpast andpresent, arean indispensablepartof 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 controversy now raging in the larger university about "the canon." 2 The contest 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, Organizationof American HistoriansBacks Teaching of NonWestern 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 (...truncated)