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Transformative Teaching:
From the Classroom to the Culture

By Rachel F. Moran

This column culminates my year of writing on the theme of "transformative law," described in my Presidential Address as using legal tools to challenge and reconfigure social institutions.  I began by promoting a "citizen-lawyer" ethos within our profession, honoring Robert Gordon’s admonitions that lawyers take responsibility for the integrity of our society’s legal framework rather than becoming mere captives of clients’ interests.  I planned to address three areas of transformative law that were specific to academic lawyers: transformative professional training, transformative scholarship, and transformative classroom teaching.

 In writing about transformative training, I cautioned against sacrificing the politically challenging nature of the clinical legal education movement because of increasing demands for quantifiable outcome measures.  In writing about transformative scholarship, I noted tensions between the impetus to reform advocacy and the need to maintain academic respectability.  Now, in discussing transformative teaching, I return to some of my initial themes, for teaching is the primary means by which we will – or will not – shape the ethos of new generations of practitioners, who may or may not consider themselves "citizen-lawyers."

 This year, the term "wise Latina" became a catchphrase in debating the appointment of the nation's first Hispanic, and only third female, Supreme Court Justice.  Having known Sonia Sotomayor when we were both students at Yale, I followed the confirmation process with an extra measure of interest.  By the hearings’ end, I was struck by the parallels between determining what characteristics are desirable in our finest jurists and determining what characteristics are critical to our finest teachers of law. 

Here, I will draw insights from three prominent public controversies over the Sotomayor nomination: whether she stood by her “wise Latina” remark; whether she associated herself with President Obama’s remarks about the importance of empathy in judicial decision-making; and whether her disagreement with her mentor, Judge Jose Cabranes, over a controversial case involving affirmative action was significant.  These disputed issues illuminate each aspect of transformative education that I will discuss: who enters the classroom, what happens in the classroom, and what is taken from the classroom. 

(1) What we bring to the classroom: the argument for diversity

To refresh our recollections of Justice Sotomayor’s statement about being a “wise Latina,” here is the key passage that proved deeply contentious:

Justice O'Connor has often been cited as saying that a wise old man and wise old woman will reach the same conclusion in deciding cases. … I am [] not so sure that I agree with the statement. First, as Professor Martha Minow has noted, there can never be a universal definition of wise. Second, I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life.1

Professor Ben Bratman has noted that Sotomayor’s statement, from which she ultimately distanced herself, was entirely defensible as originally constructed.2  The very decision that would raise controversy over her nomination, Ricci v. DeStefano,3 was in part a case about how much an employer may value the benefit of the differing perspectives that accompany workplace diversity.  We know that workplace diversity fosters broader understanding.4  Both the predominantly white plaintiffs in Ricci and the black firefighters whose professed interests they opposed sought justice from the courts (which are themselves a workplace); beyond that, they sought understanding.  Having Justices from a limited range of experiences impedes, even if it does not preclude, that understanding.  Having Justices from a diversity of experiences fosters such understanding.  Diversity on the bench is therefore crucial.

What is true for judges is also true for law students and for professors.  This was the rationale for affirmative action presented in Regents of the University of California v. Bakke5and Grutter v Bollinger,6 the two critical cases that respectively expressed and endorsed the diversity rationale for affirmative action.  Truncating the range of experiences among either students or faculty – based on race, gender, sexual orientation, class, disability, national origin, and many other characteristics – threatens the capacity of law schools to generate a professional class that can cope with an increasingly diverse world.  Then-Judge Sotomayor might be faulted only for leaving out some context: on a court where almost every Justice was Latina, an additional “wise Latina” might well be less likely to help the full Court reach a better conclusion than a white male who could offer what would, in that counterfactual world, be a unique perspective.  Of course, Justice Sotomayor can hardly be faulted for leaving out that bit of context; our country was and is far from being overrun by Latina judges.

Diversity remains a core value of the AALS – one that it strives to promote through its site visits, conferences, reports, and a committee specifically dedicated to these issues.  We should certainly redouble our efforts on that front.  Justice Sotomayor was herself the product of a time of great access for people who, like herself, were of modest means.  She was the first member of her family ever to attend law school.  This diversity of socioeconomic experience was a function of such initiatives as the G.I. Bill and the once-revolutionary and much-admired California Master Plan for public education, which ensured that people from all walks of life would, to a substantial extent, be able to reach their highest level of educational achievement based on ability and energy rather than economic resources.

Professor Conrad Johnson of Columbia Law School has noted a decline in enrollment among Black and Mexican-origin students who ought to have a chance to become a future generation's Sotomayors.7  Over a recent fourteen-year span, while such students have applied to law school in constant numbers, improved their scores on standardized tests, and competed for places in entering classes with 4000 more seats, their numbers declined both in relative and absolute terms, Johnson reports.  Among the many reasons for this is a lack of access to resources.  One large obstacle to maintaining a diverse legal academy, then, is that what we win in the courts we may lose at the bursar's office.  Diversity depends, increasingly, on the ability and willingness of law schools to value students from all backgrounds enough to ensure that students' financial straits do not render their admission and enrollment impossible.

Achieving diversity in legal academia is not simply an obligation, but an opportunity.  Professor Susan Sturm, who will participate in a panel on “transformative teaching” at the upcoming 2010 Annual Meeting, has long collaborated with Professor Lani Guinier in reflecting on legal education.  They have written, for example, on their experiences with creating “multiracial learning communities” in law school classrooms, in which students attend to internal and external sources of power (including racial identity, gender, and social class) in shaping the group's membership, the dynamics of group interaction, and the content of the inquiry.8 They report that confronting racial difference and its effect on power and perspectives galvanizes students, teaches them to speak before critical audiences, and sharpens their problem-solving skills.  Students learn to “experiment, not just dominate,”9 in discussion.  In the process, these groups build cooperative and close relationships between students and their work, their professors, and – most unusually in law school classrooms – each other.

Part of the benefit of diversity, then, is that it forces confrontation with and understanding of differing perspectives and assumptions.  This, too, played its role in the Sotomayor saga.

(2) What we do in the classroom: the role of empathy

Professor Michael Hunter Schwartz has created a website devoted to documenting what legal educators are doing right.10  He has collected the names of exemplary American law professors, nominated by peers, former students, and other admirers, as preparation for an extensive qualitative analysis of powerful teaching methodologies.  Schwartz will speak on the “transformative teaching” panel at the upcoming 2010 Annual Meeting, sharing some early observations from his research.  His work suggests that another signal term in the Sotomayor saga – “empathy” – is also critical to transformative teaching, insofar as it means identifying with one’s students to better understand their hopes and needs.

President Obama initially inserted the term “empathy” into the Supreme Court confirmation debate, stating:

I will seek somebody with a sharp and independent mind and a record of excellence and integrity.  I will seek someone who understands that justice isn't about some abstract legal theory or footnote in a case book; it is also about how our laws affect the daily realities of people's lives -- whether they can make a living and care for their families; whether they feel safe in their homes and welcome in their own nation. 

I view that quality of empathy, of understanding and identifying with people's hopes and struggles, as an essential ingredient for arriving at just decisions and outcomes.  I will seek somebody who is dedicated to the rule of law, who honors our constitutional traditions, who respects the integrity of the judicial process and the appropriate limits of the judicial role.  I will seek somebody who shares my respect for constitutional values on which this nation was founded and who brings a thoughtful understanding of how to apply them in our time.11

When Judge Sotomayor was nominated, the highlighted portion of the President’s announcement quickly became the basis for concerns that her empathy would extend only to Latinos or the poor, and that such selective concern would undermine the rigorous and objective approach required of judges.

In analyzing Aristotle’s writings on compassion, Martha Nussbaum has noted concern over emotions rooted in empathy within in our judicial system.  Compassion could complicate the administration of justice, as “people's sympathies are unpredictable and inconstant; they may have antecedent biases against certain types of defendants and in favor of others that will influence the way in which they hear the defendant's story.”12  She concludes, though, that empathy and compassion (the latter of which adds to empathic understanding a level of identification with other people’s plights) are critical tools to help decision-makers appreciate how others see the world from distinct perspectives.13

This is especially critical, Nussbaum argues, in legal education, where emphasis on rational analysis may impede comprehension of others’ motivations.14  While, as with the judiciary, cultivation of empathy has raised concerns about weakening analytical rigor, empathy has increasingly been celebrated as a necessary component of classroom teaching.  In part, it is fundamental to courses on negotiation, mediation, and deal-making in both litigation and transactional practice.  Beyond that, proponents of empathy argue that it makes law students into better lawyers.

In 1993, Professors Angela Harris and Marjorie Shultz offered an important defense of emotion’s role in law school classrooms. They recognized that law teachers generally treat rationality and feeling as opposites and assume that “rationality is appropriate in legal reasoning whereas feeling is not.”15  Drawing on Nussbaum’s work, Harris and Shultz have contended that “idealized justice …  embodies wisdom and compassion.  Supreme Court justices who are publicly revered are not simply cold calculating machines of ‘smartness’ but deeply humane people who struggle to do the right thing. …  Our society extols justice as blind, but also celebrates it when it is deeply seeing.”16

Cultivating empathy and compassion may benefit students, but for teachers it requires accepting some loss of control and superior status. Harris and Shultz argue that the cost is worth the gain in teaching quality, concluding that “the risk of injury (although it certainly exists) is outweighed by the potential benefits of truly engaged, passionate, and rich intellectual debate.”17

A strong teacher should be able to identify with her students and to empathize with their perspectives of the world – both outside of the classroom and within.  Empathy for one's students requires a sense of humility not always valued by the legal academy.  It is one thing for teachers to "hide the ball" in positions of power; it is quite another to recognize that the "ball" – what students are successfully learning during a semester – is also hidden from us.  Empathy both requires and fosters authentic concern for the well-being of one's students.  Transformative teaching involves the ability to see and to feel what our students are experiencing.

This is not easy work.  It is a far cry from reading off lecture notes; it is incompatible with stereotypes of self-indulgent and preening legal pedagogy of any stripe.  To actually see and feel our students’ perspectives may be arduous and frustrating and can leave us emotionally vulnerable – but I think it is what distinguishes the best teachers from the rest.

1. What we take from the classroom – transforming legal culture

The third attack on Justice Sotomayor’s nomination regarded the unpublished opinion she endorsed in Ricci,the “New Haven Firefighters Case.” The opinion dismissed white firefighters’ claims of reverse discrimination in a brief paragraph.  The Supreme Court later overturned the decision by a 5-4 vote.  Obviously, raising the issue of affirmative action in the nomination of the first Latina Justice was intrinsically fraught, but critics gave the issue extra prominence by identifying a Latino colleague on the Second Circuit whose view opposed Sotomayor’s – a contrast made especially powerful because this Judge, Jose Cabranes, was Sotomayor's self-acknowledged mentor.  Cabranes had hired Sotomayor as a research assistant at Yale and urged her to work for Robert Morgenthau, the Manhattan district attorney.  A fellow student recalled Cabranes as “an entirely different species of cat”18 given his open-door policy and habit of introducing students as his friends.  By the time Sotomayor joined Cabranes on the federal bench, he realized that “[t]he mentee was all grown up” and their jurisprudential philosophies had diverged. Despite their differences, Cabranes recalled that “I wanted to put her on the right path, and I don’t think I was wrong.”19

As this account suggests, the best professors have the capacity to be influential mentors.  They take an interest in their students’ careers and aspirations.  These teachers hope, by instruction and example, to interest students in important problems, in innovative intellectual approaches to addressing them, and in persistent effort to resolve them.  What they do not do is try to generate carbon copies of themselves.  Mentorship does not and should not lead to a lockstep recapitulation of the professor's ideas, but to an exchange and evolution of ideas, a process that at its best may last for decades.

The third member of our upcoming panel on transformative teaching, Elizabeth Schneider of Brooklyn Law School, exemplifies mentorship as a transformative enterprise.  Schneider has been a leading light in applying feminist theory to the legal interests of women.  As detailed in her 2000 book on domestic violence,20 she has focused on changing how courts, prosecutors, defense attorneys, and other actors view the role and the rights of victims of domestic violence.  She has mentored students who have made their own marks in the profession, such as Professor Cheryl Hanna of Vermont Law School, who has since become her collaborator, along with two other professors, on a casebook on Domestic Violence and the Law.21  Professor Hanna will be joining Professor Schneider on the panel to discuss the role and importance of mentoring in academic lives.

Even in the face of transformative change, the importance of one-on-one mentoring persists.  Every faculty member can enhance a student's prospects with support and guidance.   Sometimes this involves conveying information, but often it also requires being a good listener who can understand the student's own hopes and concerns.  Students sometimes lose sight of their reasons for becoming lawyers in the crush of reading casebooks, briefing and outlining, writing assignments and taking exams.  The impact of the current economic crisis on the legal market only exacerbates the tendency to focus on short-term needs and obligations while discounting long-term goals and aspirations.

Schneider's work highlights the importance not merely of changing her students by sparking their interest in an underdeveloped field of inquiry, but of changing the environment in which they will operate professionally.  Her work enables judges, prosecutors, and defense attorneys to perceive fully the interests of women, particularly victims of violence.  This contribution is critical not only for its value to education, but for helping to transform legal culture.

This focus is critical beyond the academy itself.  In this and my previous columns – on fostering “citizen-lawyers,” on defending the engaged status of our clinics, and on celebrating the power of applied scholarship – I have focused on how we may transcend tendencies towards academic insularity and focus our talents on changing our society and our profession.

We pursue this aim not merely for its own sake, but because such transformation is what cements our successes as legal educators.  We can create the best-educated, most empathic students possible even without a transformative emphasis.  But if they then enter a legal profession that does not value – indeed, that stultifies – their perspectives, abilities, values, and goals, our victory as educators is Pyrrhic.  Studying law is then only a temporary haven from the difficulties of professional life rather than a springboard into changing the practice of law.

Even the best seeds require good soil to thrive.  By producing students who desire systemic change and civic obligation, and who put those beliefs into practice, we foster an environment where the students we send into the world can reach their highest potential.  This does not happen automatically; many students complain that for them it does not happen at all.  But consciously adopting transformation of our profession as an affirmative goal – consciously inculcating in our students that they leave school aiming not to become others' passive tools but to remain their own moral agents – best serves this end.  So conceived, transformative teaching is an enormous enterprise that goes well beyond the classroom –an enterprise of enormous worth.

Society demands a lot from its lawyers.  We should demand a lot from ourselves.

So ends a year of thinking about transformations.  Despite the hardships today’s economy imposes on our students and many graduates, American law schools have much to celebrate.  We have continued to transform ourselves in response to changing needs.  We are innovating in every facet of legal education; we are privileged to make a difference in people's lives.  As we help students to find their best selves, we find our own.

I began my first column with thanks and want to close this final column in the same spirit. I express my sincere gratitude to all of those who made this a transformative year for me.  First, of course, there are the wonderful people at the Association, who make it possible for each President to acquire the sense of continuity and breadth of perspective necessary to succeed.  I especially want to single out Susan Prager, Jane LaBarbera, Elizabeth Patterson, and David Brennen, all of whom provided me with wise advice and unflagging support.  I also am extremely grateful to my fellow members of the Executive Committee, who have been wonderful colleagues and outstanding leaders as we navigate the complex challenges facing legal education today.  In addition, I want to acknowledge the efforts of every faculty member and dean who has volunteered to provide service to the Association during my Presidential year.  These individuals are the lifeblood of the organization, and their generosity and good fellowship make it a joy to be a part of this effort.

Finally, I must make special mention of Gregory Diamond, who ably assisted me in thinking through our profession’s transformative potential.  Greg is a former academic social scientist who came to law as a second career and left his practice in the summer of 2006 to devote himself to political change (including two years of unpaid work in state and national electoral politics).  Greg began working with me shortly after the 2008 election, ready to recommit himself to his profession as a citizen-lawyer – and finding that early-career lawyers were being ejected from law firms like ballast.  He, and I vicariously, had to grapple with what maintaining an orientation towards social transformation means in troubled economic times.  (His story has a happy ending; he landed a satisfying job with transformative potential and decent compensation.  Many others, we know, have been less fortunate this year.)  His experiences and perspectives from outside the academy have enriched and given immediacy to our discussions and explorations of what it means to become a lawyer today.