Whistling Vivaldi

By Deborah L. Rhode

In Parallel Times, Brent Staples describes one of his early strategies for coping with racial stereotypes while a graduate student at the University of Chicago. As a large African American male living in a high crime neighborhood, Staples became aware of the anxiety that he triggered among white residents. To avoid problems, he began ?going out of his way onto side streets to spare [other individuals] the sense that they were being stalked.? When that proved too inconvenient, Staples discovered another solution: whistling Vivaldi.

So too, many law students and faculty have developed the metaphorical equivalent of whistling the classics. The burden of change often has been on ?outsiders,? rather than on the institutions that have failed adequately to accommodate them. Honest discussions of that problem in today?s political climate are extremely difficult, and risk leaving everyone uncomfortable or unsatisfied. After multiple discarded drafts of this column, I almost retreated into a safer subject. With a topic like ?The Challenges of Technology for Legal Education,? I too could strike up Vivaldi.

Yet avoiding discussion of the problem won?t advance its solution. Although law schools have made considerable progress over the last two decades on diversity-related issues, recent research underscores the difficulties still confronting many women, men of color, gay and lesbian students, and other traditionally disadvantaged groups. 1 While these studies indicate significant variations among law schools, the findings, taken together, suggest reason for continued concern.

Recent legislative and judicial restrictions on affirmative action have refocused our attention on diversity-related issues in student admissions and faculty appointments. But such issues have not assumed equal prominence in other aspects of law school policy. Most institutions still confront major challenges along two dimensions worth highlighting here. One involves the marginalization of diversity-related topics in classroom teaching. Another concerns the silencing and harassing conduct that prevent communities in which diversity is truly valued.

Such communities require respect for perspectives from all points of the political spectrum. In many law schools, traditionally subordinate groups are not the only ones whose members are silenced. Concerns about political correctness also stifle those with conservative and moderate views. Students from all backgrounds who feel suppressed sometimes retaliate in kind, which both perpetuates the problem and chills discussion of its dynamics.

The difficulties we face are not unique to legal education and they are not readily solved. But one purpose of organizations like the Association of American Law Schools is to help us meet the challenges remaining. Despite the divisiveness of these issues, legal educators generally share a common goal: to create institutions in which diversity of all kinds commands support, and members share a commitment to tolerance, equality, and mutual respect.

Curricular Priorities
Recent studies of diversity issues by bar associations, legal scholars, and Law School Admission Council researchers reveal certain common patterns. One involves the failure to address topics involving race, class, gender, and sexual orientation in the core curriculum. The coverage that does occur often looks like an afterthought: a brief digression from the ?real? subject. Some professors exclude topics that are of obvious importance, such as rape, domestic violence, same-sex marriage, or racist speech, because the issues appear too volatile.

Such concerns are understandable. I have not yet managed to repress my own worst teaching experience. As a visiting professor, I attempted to include issues of racial and gender bias in a large, mandatory legal profession course. For some students, the discussion appeared far too ?pc? and the professor far too feminist. For others, she was not nearly feminist enough, and the dialogue appeared insensitive to the dynamics of discrimination. I can readily see why many faculty prefer safer, more doctrinal topics.

Yet diversity-related issues demand our concern, and recent studies suggest ways to minimize classroom difficulties. Some problems can be averted by not putting women, minority, gay and lesbian students on the spot with questions about their particular experiences. Such implicit requests for the ?woman?s point of view? or the ?African-American perspective,? however well intentioned, come at a cost. They ignore the diversity within these groups and heighten the discomfort of students who do not want to act as spokespersons. Those who do speak under such circumstances also risk being dismissed as biased or self-interested.

A second pitfall is to present topics involving race, gender, class, or sexual orientation in purely doctrinal terms. For example, surveys of gay, lesbian, and bisexual students report widespread frustration with the treatment of cases like the Supreme Court?s sodomy decision in Bowers v. Hardwick. Many faculty exclude ?difficult issues? from class discussion, or fault students for not separating their ?personal politics? from their legal analysis. This is a dispiriting and disempowering message, particularly to individuals who hope to use legal training to advance their personal commitments on diversity-related issues. More promising strategies include assigning supplemental material that reflects diverse views, and including roleplaying exercises that protect students in voicing controversial views.

Educational Climate
A similar, more powerful message comes for ?overreaction? and ?overemotionalism,? and have acquired labels like ?feminazi,? ?dyke,? or ?manhater.? Women student organizations have received comparable nicknames and their posters, along with those of gay and lesbian groups, have been removed or defaced. Students who express conservative views have been labelled racists or misogynists. Emails, graffiti, anonymous flyers, and comments on course evaluations present students and faculty of color as unwelcome or undeserving intruders. In Law School Admission Council surveys, a majority of African American students, and a third of women, Asian American, and Hispanic students reported experiencing discrimination in law school. Almost two thirds of gay, lesbian, and bisexual students reported homophobic incidents.

What is especially disturbing about such patterns is the tendency among some faculty to dismiss their significance or to ridicule others who do not. Even modest efforts to improve the classroom climate have prompted some counter-productive responses. For example, when one law school published guidelines endorsing gender-neutral language in class discussions, a male professor responded by changing all ?man? endings to ?person,? as in ?Doberperson Pincher.? Moreover, when some faculty fail to respond to inappropriate hissing or classroom comments, they fail also to create a culture of equality and mutual respect.

Sustaining such cultures requires active efforts to encourage tolerance and to promote wider participation. These efforts may invite rethinking of other classroom structures. The hyper-competitive ethos of many law school courses undermines self esteem and discourages involvement among less confident or assertive students. All too often, the search for knowledge becomes a scramble for status in which too many perspectives fall by the wayside. A wide variety of studies find that female students participate less in class than their male colleagues and that women of color are particularly likely to feel alienated and unsupported by their law school experience.

Strategies for Change
A critical first step in addressing these issues is for faculties to identify areas of concern in their institutions. To that end, law schools can gather qualitative and quantitative data about the experience of particular groups. A significant number of institutions have undertaken or participated in such studies and a 1998 ABA report, Don?t Just Hear It Through the Grapevine, provides a good overview of information that has and can be collected. Law schools also can create diversity-related initiatives and monitor progress. These initiatives could include workshops, lectures, and curricular integration projects. Individual faculty can increase coverage of topics involving race, class, gender, and sexual orientation and incorporate teaching approaches that encourage wider student participation.

Class discussion of diversity-related issues poses special challenges, but also offers special rewards. Many faculty effectively use supplemental readings, visitors, case studies, role-playing exercises, cooperative problem solving projects, and small subgroup discussions. Such approaches can provide students with opportunities to share deeply felt concerns and with models of how constructive conversations can occur. Law schools can encourage such dialogue by offering resources for course development and including questions on diversity-related issues in student course evaluations.

These strategies will emerge only if we also rearrange educational reward structures. Valuing diversity must become a central mission, not just in theory but in practice.


1For an overview of prior studies, see American Bar Association Commission On Women in the Profession, Don?t Just Hear It Through the Grapevine: Studying Gender Questions at Your Law School (1998); Elusive Equality: The Experiences of Women in Legal Education (1996). Two recent studies by the Law School Admission Council include Gay and Lesbian Issues Work Group, ?Results from a Survey of Lesbian, Gay, and Bisexual Student Attitudes About Law School,? Journal of Legal Education (forthcoming, 1998); and Linda Wightman, Women in Legal Education: A Comparison of the Law School Performance and Law School Experiences of Women and Men (1996). A large scale study currently underway is Richard Sander, et al., Interim Report, National Study of Student Performance in the First Year of Law School, (U.C.L.A. unpublished paper, 1998). For a more extended discussion of these themes, see ?Whistling Vivaldi: Legal Education and the Politics of Progress,? 23 New York University Review of Law & Social Change 217 (1997).(Back to Article)


* This article appeared in the August 1998 AALS Newsletter

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