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Law360 (July 26, 2020, 8:02 PM EDT )
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| Jocelyn Getgen Kestenbaum |
The recent deaths of George Floyd, Breonna Taylor, Ahmaud Arbery and Rayshard Brooks, among too many others, once again expose the ways in which our legal system and institutional structures perpetuate stark and brutal discrimination and violence against people of color. In the absence of strong, positive messaging from national leaders, there is little space for transformative conversations and action, while the risks of mass violence along identity lines continue to increase.
That is not to say that mass violence is inevitable or unavoidable. Transformative justice and sustained peace, however, takes hard work and collective effort to achieve in any context. To move forward together — and not to "get back to normal" — this country must confront its violent past and present as we've seen some companies do. We must understand and change the myriad ways in which laws and legal institutions contribute to ongoing, systemic oppression against certain groups while privileging others, namely white Americans.
A legal education is not a neutral, objective commodity. The context in which legal theory is taught, the cases professors choose as examples, and the nature of class discussions all contribute to the way the next generation of lawyers understand and approach their work.
Legal educators are in a unique position — and, thus, have a unique responsibility — to teach and encourage future lawyers to identify and confront injustices, discrimination and violence against individuals and groups across the United States. Professors must interrogate illegal acts perpetrated by powerful actors that undermine the rule of law and democracy; lawyers should see themselves as watchdogs for human and civil rights no matter what practice area they choose to pursue.
This is only part of the challenging work that needs to be done to upend settler colonial structures that perpetuate identity-based discrimination and violence in the United States, but it is a necessary step toward transformative justice. Right now, there are gaps that the U.S. legal curriculum is not currently addressing — gaps around which students and society as a whole are demanding constructive conversations and reform.
When law students read headlines about the Trump administration's attempts to dismantle the Deferred Action for Childhood Arrivals program and other protections for undocumented immigrants, they should understand the ways in which exclusion and deportation work as punishment and what the Constitution requires of the executive branch. This can be taught in a reframing with Trump v. Hawaii, for example, the "travel ban" case where the U.S. Supreme Court held that President Donald Trump's executive order that suspended entry of foreign nationals from seven countries was a lawful exercise of the president's statutory authority.
When they see police brutality, racialized violence and systemic inequalities, they must understand the evolution of criminal procedure law and policing practices that have contributed to mass incarceration, which can be taught in examining the evolution of the probable cause standard into the more subjective reasonable suspicion standard in Terry v. Ohio, where the Supreme Court ruled that police offers are entitled to stop, question and frisk individuals when they have reasonable suspicion that an individual is dangerous and engaged in some form of criminal activity.
When they see sports teams appropriate Native American culture through their team names and mascots, or major consumer brands use imagery steeped in stereotypes, they should understand how the Constitution — under the First Amendment free speech principles — has protected these organizations and actually enabled and perpetuated racism, which law professors should acknowledge in their teaching of Matal v. Tam, which focused on trademarks that could be considered disparaging.
The list of cases that cover these issues and the ways in which law professors can address students' concerns are not few and far between. While professors want to meet these demands, they must seek out available tools and think critically about these cases in order to innovate their curriculum and classroom discussions.
As a legal educator, I feel a responsibility to my students to teach them to recognize and respond to structural inequalities. That is why I recently helped my law school develop an open-access resource, Confronting Structural Violence: Law Teaching Guides, that is available to professors across schools and practice areas.
We intentionally grounded the guides in cases many professors already teach and designed them to cover topics that are dominating headlines across the country — in addition to those mentioned earlier, we analyze cases about voting rights (Harper v. Virginia Board of Elections), citizenship and race (Elk v. Wilkins) and federal plenary power (Chae Chan Ping v. United States, known as the Chinese Exclusion case), among others.
As the protests continue against the backdrop of the ongoing COVID-19 pandemic and the growing economic crisis, fear, uncertainty and insecurity will continue to occupy more of the public discourse. If that fear and insecurity is stoked with dehumanizing tropes pitting neighbors against neighbors, the United States will continue down a polarizing path to hell.
If instead, however, professors, policymakers and other leaders begin a national conversation, interrogating our legal and institutional structures while calling for transformative change, the global pandemic and its compounding consequences could act to unite the country against the many common threats it is facing, including the police violence, persistent racism and structural violence.
Jocelyn Getgen Kestenbaum is an associate professor of clinical law at Yeshiva University's Benjamin N. Cardozo School of Law and director of the Cardozo Law Institute in Holocaust and Human Rights. She recently helped develop Confronting Structural Violence: Law Teaching Guides, an open-access teaching resource for law professors.
"Perspectives" is a regular feature written by guest authors on access to justice issues. To pitch article ideas, email expertanalysis@law360.com.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the organization, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
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