By Elliott S. Milstein
Given the high level of attention that the AALS and most law schools have devoted to attracting racial minorities, it is encouraging that the American Bar Association, thanks to the leadership of its president William Paul, is calling upon the profession to do the same. Nevertheless, it is sobering that minority lawyers constitute only one in 25 lawyers in this country and that the successes we can claim for our efforts are threatened by the sustained attack on affirmative action programs. Among the many reasons for the urgency of our efforts to create a diverse bar is that the legitimacy of our legal system depends upon the ability of all segments of society to believe they can call upon it for justice.
It is also true that, as we look around the world, we see the agonies of societies caught up in the pathological violence that accompanies racial, ethnic, and religious conflict. I am more convinced all the time that as a society we will thrive in our multiracial, multicultural reality only if we can preserve our common commitment to the rule of law. We are bound together not by a race, a religious creed, or an ethnicity but by our Constitution and the legal system that flows from it.
The theme of this centennial year for the AALS focuses on one of
the prongs necessary to the preservation and legitimation of our system
of justice-legal representation for all.1
At the same time, I do not
believe our goals concerning justice, diversity and representation for
all can be achieved unless we do a better job of transmitting our precious
Constitutional values to younger generations and attracting a diverse
group of them to join our profession.
Most of our work in bringing minority students to law school has involved
recruitment of them while they are in their later years of college and
identifying creative ways to eliminate the barriers that prevent them
from coming. Indeed, the AALS Task Force on Diversity, appointed by
our past-president, Gregory Williams, and co-chaired by Professors
David Chambers and Elizabeth Patterson, is working now on a set of
proposals that will assist law schools in achieving their diversity
goals. But a presentation by Professor Taunya Lovell Banks at the
ABA?s Colloquium on Diversity 2 reminded us that we must create a
pipeline to educate youngsters to interest them in and prepare them
for the legal profession if we are to succeed. And while she emphasized
the importance of pre-primary school experiences on later success in
the rest of school, she also called for an increase in the quantity and
quality of law-related education in middle school and high school.
Perhaps law schools as institutions are limited in their capacity to
improve directly the pre-primary education of the kids least likely to
receive much of it, but it is clear that we can make a contribution to
what students in high school learn about the Constitution and the legal
system.
Without our participation the public schools do not have the capacity
to teach the Constitution as anything other than lifeless dogma and
ideology. Although Thurgood Marshall spoke often of the importance
to his development of being forced as punishment in high school to
memorize the Constitution,3 that is surely not the best we can do.
Wouldn?t teaching it in a way that permits students to confront the
basic questions of value and principle that inhere in it be of more
interest and be more meaningful? Current studies show appalling
levels of civic and constitutional illiteracy among high school
students. The National Assessment of Educational Progress recently
found that most high school students are not even minimally proficient
in our nation?s Constitution. This ignorance isn?t surprising since
the schools are struggling to find enough teachers simply to teach math
and English. And so, if we honestly believe that it is the ideals and
principles of law that are the glue of America, then can we as law
professors and lawyers assume the responsibility to teach young people
to understand, appreciate, question, and use the law?
Of course the idea of teaching law to the young is not a new one.
Even prior to the American Revolution some of the colonies required it
and state educational requirements relating to the study of the Constitution
spread after it.4 However, there is a growing sense today that the
teaching that is occurring is insufficient or ineffective.
Some law faculty have worked for years on this problem, believing
they have a civic and professional responsibility to bridge this gap.
The principal champion of law professors and law students making a
commitment to the public schools has been Street Law, which was
launched at Georgetown University Law Center in 1971 in the ferment
of the time. Professors Edward O?Brien and Richard Roe and their
colleagues at other law schools send students into high schools and
juvenile correction facilities to give a practical hands-on course in
the law. These efforts gave rise in 1975 to the National Institute
for Citizen Education in the Law, which has spread the gospel of legal
consciousness all over the nation and-now, with its human rights focus
-around the world, most notably South Africa.
The benefits to local schools of receiving the enthusiasm and idealism
of our students are obvious. At my home institution, 30 upper-level
students named Marshall-Brennan Fellows have won the hearts of public
school teachers and principals all over Washington, D.C. by spending
hundreds of hours teaching students a constitutional literacy course
based on my colleague Jamin Raskin?s fascinating new book, We the Students.
The course (and the book) is built around the many Supreme Court
cases dealing with high school students, so it is of particular and
immediate interest and applicability to those kids. As Justice Brennan
remarked in 1964 in a wonderful speech calling on high schools to
teach the Constitution: "One is continually aware of the importance of
the public school as an arena of legal controversy."
Our students also counsel their students on college and career choices,
run essay, creative arts and moot court competitions related to the
Constitution, and generally enrich the life of the schools. We are not
solving the teacher shortage by any means, but we are at least playing
a part in restoring the public schools as places of intellectual
excitement. And, of course, the benefits to the law students are
palpable. Law students who teach Constitutional law to high school
students will learn more deeply than they would have by simply reading
and discussing cases. In answering their students? questions, they
must confront the ambiguities and complexities and contradictions of
Constitutional doctrine and theory at a level no hypothetical could
ever approximate. In addition, I have watched students gain
tremendous confidence and poise from teaching three or four times a
week. They also get immersed in the tremendous issues of public
education that are so much on the dockets of federal and state courts.
The high school students receive a crash course in legal knowledge,
critical thinking and conflicting values. 5 When law students teach
West Virginia v. Barnette, they show the high school students how to
sort out their emotional reactions, political opinions, and
Constitutional analyses in the context of a controversial issue from
their milieu. They can be taught how to develop the skills of
persuasive argument, effective story-telling and legal rhetoric, as
well as to recognize logical fallacies and irrational appeals. If law
is the language of democracy, we can teach young people to think not
necessarily like lawyers but-perhaps even better-like democratic
citizens.
There are, of course, many practical and pedagogical issues in creating
and administering a program to send our students to high schools to
teach law. In one model students may undertake the work as part of a
pro bono program, tailored to law students? abilities and interests
and designed to inculcate in future lawyers the value of pro bono
service. Law schools may also find ways to fund students for their
work. Still others may surround them with an academic experience for
the law students that justifies credit. In any event, ensuring the
quality and continuity of the teaching program is a challenge that
requires experimentation and innovation. But the spirit of
pragmatism in education associated with John Dewey teaches us that,
through experiment, dialogue and adventure, we can not only improve
the character of our society and ourselves, but also develop
educational models more effective than those that exist for carrying
our own existing pedagogical mission.
On Wednesday, May 3, I will appear at the Supreme Court with ABA
President Paul to lend support to his Law Day speech expounding on a
recent ABA Resolution encouraging "every lawyer to consider it part of
his or her fundamental professional responsibility to further the
public?s understanding of and confidence in the rule of law and the
American system of justice." I think the ABA?s resolution is correct,
and hope that law schools will find new ways to contribute. We can
begin a serious dialogue about "access to legal knowledge" as a
critical "access to justice" issue.
* This article appeared in the April 2000
AALS Newsletter