TOWARD A PEDAGOGY OF DIVERSITY*
Charles R. Lawrence, III
Georgetown Law Center

I. TALKING TO STUDENTS ABOUT BEING A SCHOLAR

[W]hat is the role of the word--the spoken word, the preached word, the whispered-in-the nighttime word, the written word, the published word--in the fight for black freedom?⁵²

A group of students at Stanford have asked me to speak on minority scholarship and I have begun my presentation with this quote from There Is A River,⁵³ Vincent Harding’s compelling and inspirational history of black radicalism in America. I have told the panel’s organizers that I am neither willing nor able to attempt even a cursory description of the multifaceted work of my colleagues of color, but that I would be glad to ruminate on my own work as well as my aspirations for that work. I have recently assigned several chapters from Harding’s book to one of my classes, and his portrayal of the tradition of "radical teaching among dominated African peoples"⁵⁴ has given focus to my reflections concerning my own scholarship.

I feel an immediate kinship with the tradition that Harding describes and names "the Word."⁵⁵ It is a tradition of teaching, preaching, and healing; an interdisciplinary tradition wherein healers are concerned with the soul and preachers with the pedagogy of the oppressed;⁵⁶ a tradition that eschews hierarchy in the face of the need for all of us who seek liberation to be both teachers and students. The Word is an articulation and validation of our common experience. It is a vocation of struggle against dehumanization, a practice of raising questions about reasons for oppression, an inheritance of passion and hope.

By contrast I am struck by the strong sense of alienation that I have felt from the role of "scholar." Some of this may be self-deprecation, a lingering self-doubt about whether I am up to playing the part.⁵⁷ But I sense that the primary source of my resistance to this role lies in the question of whether the character of this tradition is in direct opposition to that of the Word. The scholar is "objective." He views his work as a value-free inquiry, an effort to clarify the world rather than to change it. He is guided by an orthodoxy that equates objectivity with emotional disengagement, cognitive distance, and moral indifference.⁵⁸ It is the work of those who remain cool and distant in the face of suffering or anger because it is not their liberation, their humanity, which is at stake.

I tell my audience that my talk will be a brief account of what I strive to do in my work. It will be an account of aspirations: a description of my efforts to join this tradition and to begin to frame a paradigm for its praxis in legal academia. I briefly outline the elements of this paradigmatic work--the special gifts that people of color bring to our work, the ingredients that give it special character. In this initial effort I borrow generously from Professor Mari Matsuda’s richly insightful piece, We the People: Jurisprudence in Color,⁵⁹ in which she notes that our work "is grounded in the particulars of a social reality that is described by the experiences of people of color."⁶⁰ The work is "consciously historical and revisionist."⁶¹ It recognizes the subjectivity of perspective and the need to tell stories that have not been told and that are not being told. Our voices and the voices of our parents and grandparents are valuable not just because they tell a different story, but because as outsiders we are able to see more clearly that what we see is not all that can be seen.

But we are not wholly outsiders, and I remind myself and the student audience that the burden of belonging and not belonging that is part of being black in America⁶²--the quality of a heritage of slave foremothers and slave-master forefathers--is also a gift, a talent that must be engendered in our work.⁶³ This burden/gift of dual subjectivity enables those who bear it to recognize and articulate social realities that are unseen by those who live more fully within the world of privilege.⁶⁴ But our duality can also be experienced as disabling when the seduction of privileged status or internalization of insider values threatens to subvert the Word’s liberating insight.

Finally, I note that our scholarship must strive to be both pragmatic and utopian. Our work must respond to the immediate needs of the oppressed and subordinated.⁶⁵ Education must involve both action and reflection. Theory must be informed by active struggle, and in turn it must inform that struggle. But we are also keepers of the dream. We are gifted by an ability to imagine a different world--to offer alternative values--if only because we are not inhabited by the delusion that we are well served by the status quo.⁶⁶

None of this is new to me, but the students have forced me to articulate what my work is and what I would like it to be. The process of having to describe the nature of my "scholarly agenda" has been extremely helpful. It is not just that I have been forced to clarify my thoughts; more importantly, the articulation is a reaffirmation. It has served me well to name this work that is so important to me, to describe its parts, and to explain why I value it. The seeds of this paper lie in this self-affirming experience.

II. TALKING TO COLLEAGUES ABOUT HOW I TEACH

Shortly after the panel on scholarship I am given an opportunity to carefully consider another aspect of my work. A group of my colleagues has been meeting on a regular basis to develop a coordinated set of readings and courses for students interested in preparing themselves to work with subordinated people.⁶⁷ I have been asked to talk about my course Racism and American Law. The course has evolved rapidly in recent years, and once again I find myself forced to find words for ideals, objectives, and strategies that I have been improvising in the midst of the pressures of class preparation and teaching and without the luxury of deliberate contemplation. The careful cross-examination by my colleagues helps me to concretely conceptualize aspects of my teaching that are largely intuitive. Again, this initial effort is cursory, only suggesting themes that are central to my pedagogical aspirations.

In its early incarnations my course on race discrimination law was in some respects a traditional civil rights law course. My chief goal was to hook students on the idea of becoming civil rights lawyers and to start them down the road to becoming good ones. It was primarily a how-to course. We gave more careful consideration to race cases they have studied in constitutional law, with an eye toward creative manipulation of existing doctrine. I introduced my students to the federal and state statutes that would become the staple of their civil rights practices, and I assigned written and oral exercises designed to teach lawyering skills. We talked a good deal about the real-life experience of the parties to the cases and our own potential clients. We noted the values manifested in the cases and statutes and explored the values that prompted our interest in becoming legal activist.

What made the course different from many other civil rights courses was its instructor and its primary text. In 1974, I was one of a too-small group of persons of color teaching law. Civil rights courses were almost as rare as black professors, and most of them were taught by white professors. From the start I used my friend Derrick Bell’s book, Race Racism and American Law.⁶⁸ This book of cases and materials was a groundbreaking effort at exploring the role of law in creating and remedying racial injustice. (It remains, along with Bell’s second edition, a unique effort.) It manifested both Bell’s critical skepticism about the achievements of civil rights law and his commitment to using the law as a vehicle for social change. Professor Bell’s "racism hypos" added an important pedagogical contribution to this significant piece of scholarship. These hypothetical legal problems required students to develop creative and novel legal arguments, outside the scope of existing doctrine, sufficiently powerful to win redress for racial injuries. The hypotheticals provoked discussions that forced both teacher and student to reflect upon the connections among the intellectual, political, and emotional aspects of race and law.

Two recurring dilemmas presented themselves during the early years of teaching this course. One was a methodological problem and the other a substantive one; each pushed my teaching in the same direction. The methodological problem was straightforward and familiar. There was simply too much to teach. The substantive legal doctrine was massive, complex, and rapidly changing. Introducing the basic doctrine, carefully analyzing that doctrine, and putting the doctrine into context via a brief introduction to the wealth of literature from the social sciences were all time-consuming. Training in lawyering skills is also intensive and time-consuming. Finally, one cannot talk about race in America without addressing the personal experience, feelings, and values of class participants.⁶⁹

The substantive problem posed an even more serious challenge. In 1974, when I first taught this course, the story I told my students was one of a difficult but victorious legal battle. Despite the Burger Court there was reason for optimism among those engaged in civil rights litigation.⁷⁰ But each succeeding year brought new Supreme Court decisions that made my message less hopeful and more bleak.⁷¹ I was often tempted to encourage my students by explaining a new and horrible decision as an aberration--by suggesting that it was the product of a poor litigation strategy or of the Supreme Court majority’s faulty understanding of sound doctrine. But these explanations were unsatisfactory and dishonest. I soon abandoned them in favor of an approach that encouraged students to see developing civil rights doctrine as the natural and foreseeable product of an enterprise whose function it was to maintain fundamental patterns of race and class in American society.

Alan Freeman’s brilliant piece of doctrinal deconstruction, "Legitimizing Racism Through Antidiscrimination Law,"⁷² was a cornerstone text in my course. It argued persuasively and with considerable documentation that even those cases that seemed to advance the cause of minorities served an ideology that promoted racist and class-based structures.⁷³ Derrick Bell’s second edition of Race Racism and American Law appeared two years after the Freeman article. It too was impatient with legal doctrine, seriously challenging the liberal myth that the civil rights struggle has been a long and slow but always progressing march toward full equality. Professor Bell argued that when blacks were successful it was only because their interests happened to coincide with those of powerful whites.⁷⁴ This approach to the doctrine served to assuage my conscience and brought with it the benefits of speaking truth, but it also presented serious pedagogical problems. If the truth appeared to be so hopeless and the pursuit of legal remedies counterproductive, what was I doing teaching this stuff?

I did not have a ready answer to this question. Nor did Alan Freeman, who has posed a similar query in a thoughtful review of Bell’s new book.⁷⁵ I turned to my students, employing the well-worn professor’s ruse of anticipating the students’ most difficult question by posing it to them. It was this act of desperation that marked the advent of my pursuit of the pedagogical paradigm that is the subject of this paper.

In 1983, while teaching my course as a visiting professor at Stanford, I began by assigning Freeman’s article and candidly explaining to students the nature of my dilemma. I was hoping that they could help me find the ways to help them become effective advocates for liberation while living and working within institutions and cultures that appeared hell-bent on perpetuating racist domination. I asked them to keep Freeman’s challenge in mind as they approached the readings, exercises, and discussions throughout the course.

I did have some intuitions of my own that suggested ways of changing my approach to teaching these materials, ways that might help free us from our sense of powerlessness and frustration in the face of debilitating doctrine and ideology. I thought that an important first step might be to find a way to get students to think more expansively about what it means to be a civil rights lawyer.⁷⁶ It was fairly obvious that if the courts were becoming less receptive to legal arguments that advanced the cause of civil rights, we should look for other venues in which to press our case. But what was called for was more than a change of institutional forum. If retrenchment in the federal courts was a reflection of political climate or predictable historical forces, it would not suffice to go to Congress, administrative agencies, state courts, or state legislatures with the same arguments. We had to imagine how best to create change in the political climate. Contemplating methods likely to effect such change required that we reevaluate not only our image of the appropriate role for lawyers but also our image of ourselves and our relation to the dominant culture.

I took my first steps in implementing this methodology with some trepidation. My students had invested a good deal of time and energy in learning to "think like a lawyer" and to value the mode of thought, the professional role, and the self-image that characterize traditional lawyering. I was not at all certain that my students would respond well to a pedagogical approach that encouraged them to place less stock in these hard-earned prerogatives. I began by introducing a simulation that would extend throughout the course of the semester. The simulation divided the class into seven groups of five students each. Each group was assigned to represent a specific interest group or constituency within the minority community.⁷⁷ Students were asked to think of themselves in the role of an attorney who had volunteered to work with clients to determine how the client group might best effectuate needed social change.⁷⁸ The simulation was divided into two stages. In the first stage, the students assessed the client group’s current position in the political arena and the effectiveness of existing legislation, judicial precedent, and administrative remedies available to the constituency they represented.⁷⁹ In the second stage, each group mapped out a proposed long-term strategy, including a list of short-term goals and specific activities its members planned in pursuit of those goals.⁸⁰

In a memorandum describing the simulation I indicated that this exercise was designed to simulate a process by which lawyers concerned with the struggle for racial equality in America might work as a group to develop long- and short-term strategies for legal reform. I told the students that I hoped to broaden their perspective of how individuals with legal skills might contribute to the process of social change and political and legal reform.⁸¹ I said that it was also my intent to respond, in part, to Professor Freeman’s characterization of Professor Bell’s impatience with legal doctrine as "despairing." While I did not want to minimize in any way the harsh reality of American race relations or the legal establishment’s role as a handmaiden of racial oppression, I did think that such a realization counseled us to seek alternatives to reliance on legal doctrine rather than simply throwing up our hands in despair or adopting an attitude of self-righteous radical chic. As my third purpose I stated my desire to have them "experience and reflect upon the emotions (anger, guilt, frustration, hope, ambivalence, etc.) that accompany the pursuit of lofty ideals or strongly held commitments within a system where neither one’s ultimate goals nor the emotions one experiences in their pursuit are highly valued."⁸²

I asked each group to keep a detailed account of internal group process by appointing an individual to record what went on at group meetings. Each student was also required to write two or three pages following each group meeting reflecting on his or her ideas, role in the group, and feelings evoked by both the process and the substantive issues discussed.⁸³ The response to this simulation was overwhelmingly positive. Despite an early uneasiness and some grumbling about the openendedness and enormity of the task, students worked hard at it. Once they became convinced that I was more interested in what they could learn from the process than in a pretty product, they seemed to enjoy the exercise. More importantly, the simulation allowed them to view the limitations of the doctrine as a point of departure rather than as a despairing final chapter. Exploring alternative political strategies also helped them see the potential for telling our stories to different audiences, in different forums, and in ways different from traditional legal discourse.

I found that there were similar benefits to be gained by asking students to consider the issues in Bell’s hypotheticals from the perspective of nontraditional roles. Instead of asking students to prepare briefs and oral arguments for presentation to an appellate court, I asked them to prepare a presentation for a legislative committee, a community meeting, a high school class, or a dinner discussion with friends. When students assumed nonlawyer roles to discuss the issues presented in legal hypotheticals, several important things happened:

1. Students were able to experience how the hierarchy of lawyer-client relationships distorted both the lawyer’s and the client’s view of whether there had been an injury, how the injury had occurred, the strategy for addressing that injury, and the appropriate remedy. They also experienced firsthand how this distortion was even more severe when the client was a poor or otherwise subordinated person.⁸⁴ Thus, when students were asked to assume the role of a good friend of a community board chair who had dropped by the house for drinks and coffee and just happened to be a lawyer, the discussions were much different from when students assumed the role of a lawyer representing the board in litigation. Students playing the role of the community board chair reported that the discussions with the "good friend" were also much more helpful.⁸⁵

2. Students also discovered how significantly the law shaped the way they thought about human problems, how using dominant legal discourse or "thinking like a lawyer" caused them to devalue or deem irrelevant certain observations, feelings, ideas, and ideals that seemed important to them when they self-consciously assumed a nonlawyer’s role.⁸⁶ It also became apparent that more often than not these devalued aspects of their intelligence were those that they associated with their identities as members of oppressed or marginalized groups.⁸⁷

3. Students more easily recalled and related personal experience. They were also more effective and articulate in conveying these experiences. This increased facility was directly related to my assigning value to the experience and giving authority to the role. Creating a role that enabled them to play themselves, or some part of themselves, gave legitimacy to their subjective view. It made their positioned perception relevant and important to the task of determining how best the law might describe and analyze the issues presented by the hypothetical. I often placed the hypothetical in a setting in which my students had been directly involved and then asked them to play themselves.⁸⁸ When role-playing exercises or simulations are brought closer to home, participants gain an additional benefit. Reflection is brought closer to praxis and student/teachers may experience the liberation of giving authority to ideas by acting on them.

In the years since 1983 I have moved steadily toward increasing the number of exercises and readings that encourage and legitimate the telling of students’ stories. My materials surround cases and law review articles with narrative--with history, social science, and literature that makes no pretense to objectivity.⁸⁹ The law remains, but we are always involved in testing its ability to incorporate and respond to our experience. Where the law fails we look for ways to create new analytic constructs that are more faithful to the reality we experience. We work to resist the inclination to think ourselves crazy and join the crowd in proclaiming the beauty of the emperor’s new clothes. We struggle to find ways to be more articulate, more forceful, and more passionate in describing what we see so that others may share our vision. Bell’s text has become a supplementary reading and his book of allegorical essays, And We Are Not Saved,⁹⁰ is now required reading.

In 1986 I began using a pedagogical method that has significantly improved the work I do with my students toward the promulgation of the Word.⁹¹ Each week students are required to write a brief essay recording their reactions to some portion of the readings for that week or to the impact of the readings as a whole. I ask that the students use these essays, which I call reflection pieces, as a vehicle for reporting gut reactions or feelings evoked by the readings. I tell them that I do not want legal analysis. Reflection pieces are due the day before the class meets. I read them, make comments on most, and refer to them during the class, often selecting a few to read in part or in full.⁹²

Reflection pieces serve several purposes. Students come to class prepared. But more than that, they come having already engaged in the process of experiencing the harmony or dissonance between their own perspectives and the perspectives described in the readings. The assignment privileges experience and the forceful articulation of that experience. Each week I am newly impressed by the thoughtfulness of these pieces. I am struck by their honesty, by my students’ willingness to risk making themselves vulnerable, and by their bravery in their criticism of my manifested bias or myopia as well as that of the cases or the authors assigned. The power of these pieces is not just in their usefulness as a method for discovering new insights gained from a diversity of experience and perspective, but in the authority they give to the voices of those who have come to experience themselves as lacking authority.

This student-centered, student-generated pedagogical method is what I describe to my colleagues who have asked to hear about my teaching.

III. UNDERSTANDING THAT PREACHING AND PRACTICE ARE ONE

Within the Word we find two dimensions, reflection and action, in such radical interaction that if one is sacrificed--even in part--the other immediately suffers. There is no true word that is not at the same time a praxis.⁹³

This rambling and disconnected conversation with my colleagues about my race discrimination course produces the same self-affirming results as did my talk with students about my scholarship. But it is the juxtaposition of these two conversation that is most enlightening. As I talk with colleagues about dialogue with my students, it becomes clear to me that all of these conversations are critical to what I have been striving to comprehend and articulate about my scholarship, and that I cannot, I should not, separate methodology from substance or objective. This was not a new idea to me; I had heard it from others and nodded my head in agreement.⁹⁴ I had even been a practitioner of this ideal, probably more so than most. But this was nonetheless a "eureka" type of experience. This was a way of understanding what might enable me to transmit my experience to others.

If the role of the Word includes its use and value as a unifying force, a statement of protest, an expression of courage, an organizing tool, the articulation of utopian dreams or a higher law, then our methodology must inspire and advance those uses and values. If the nature of the Word is that it is subjective, consciously historical, and revisionist; if it is both pragmatic (responding to the immediate necessities of survival and struggle) and poetic (responding to the immediate need of expression of feeling); if it must proceed from the specifics of experience and articulation of that experience toward the abstraction of theory; if it is reflection on action, informed by active struggle and in turn informing that struggle; if it is double voiced, expressing the ambiguity of those who know the experience of belonging and not belonging, then our methodology must be a vehicle designed to carry out these complex and varied tasks. Our way of speaking the Word, of gathering the Word, of spreading the Word, must be open. It must be a form that admits all comers, that does not have a dress code or a requirement that it be filed in triplicate.

One of the ways I have experienced this necessary relationship between substance and methodology, between reflection and action, is through my teaching and the way my teaching informs my scholarship. In fact my teaching (in the broadest sense, my dialogue with others) is the chief source of nourishment for my scholarship. The Word is praxis, not just in the more obvious ways the thoughtful work of a scholar provides strategy or frames new conceptual arguments for the activist lawyer or community organizer, but in the ongoing work of the scholar as teacher. By speaking and hearing the Word in our classrooms, in our offices, or in community meetings we transform our own understanding of our relationship with the world and thereby transform the world. In my teaching about law I try to leave space for, to encourage and value, the articulation of feeling and experience. This is particularly important in teaching law, where the story that is told within the dominant discourse has systematically excluded the experience of people of color and other outsiders and where we are trained to believe that the story told by those in power is a universal story.

Every new and important understanding or insight that I have reached and found a way to articulate in my writing has come from dialogue with my students and with teachers. The conversations that produce theory are those that identify and articulate dissonance between existing legal theory and our individual/collective feeling and experience. Articulate descriptions of what we experience and feel must be placed alongside the descriptions produced by dominant theorists. Where there is discord or where there are notes missing in the law’s written score, our conversations must be an improvisational search for notes that are harmonious with the way we experience the world.

Conversations, when they are real conversations, are open. They invite firsthand, subjective accounts of feeling and experience. These conversations must begin with our own stories, because unless we privilege what we see, hear, and feel we may never hear the discord, or when we do hear it we may interpret it as some problem with our own sensibilities. Our stories must be privileged because in the dominant discourse they have either been unheard or, when they have been heard, devalued.⁹⁵

* * *

These two stories, of scholarship and pedagogy, are actually one. They are united in the Word by an ethos of liberatory activism.

* * *

There is a third story in this Article. It is a story about resistance to the message and methods of the Word by those who dominate legal discourse--a story about the devaluation of this important work by the established legal academy. The Word and its would-be practitioners are too often met with hostility, belittlement, deprecation, disregard, and lack of understanding. I seek to clarify the objections that are voiced in criticism of and in opposition to this work. These objections are often expressed in neutral terms. The work is deemed unworthy, inappropriate, or lacking in merit without reference to the pedagogical principles, the intellectual ideology, or the political and moral vision that inform those judgments. By articulating the values that cause us to hold this work in high esteem and those that cause others to think it of little worth, I hope to make explicit what is at stake for all of us, to make explicit the norms that are contained in the white male academy’s evaluation of scholarship, and to argue that the alternative values advanced by the Word will better serve us all. This story is intended as a brief to my white colleagues in support of hiring, promoting, and learning from practitioners of the Word. But, more importantly, it is a message to my brothers and sisters that what they are doing is good and important, that there are others of us who understand the immense day-by-day effort required by this work, and that this work must be done whether it is valued by the dominant white academy or not.