Excerpt from “The Alchemy of Race and Rights – Diary of a Law Professor”
Harvard Univeristy Press, 1991
By Patricia Williams
From Chapter 5
CRIMES WITHOUT PASSION
[Note: The following is from a memo Williams wrote to her law school administrators, regarding the content of law school exam scenarios, some of which she lists, e.g., " - a tax exam that asks students to calculate the tax implications of Kunta Kinte's master when the slavecatchers cut off his foot... a securities-regulation exam in which the professor muses about whether white-collar defendants should go to jail, since 'unlike ghetto kids' they are not equipped to fare in that environment... a constitutional-law exam in which students are given the lengthy text of a hate-filled polemic entitled 'How to be a Jew-Nigger' and then told to use the first amendment to defend it... a description of the 'typical c riminal' as 'a young black male with an I.Q. of 87 who is one of eight children and has always lived on welfare and who spends his time hanging outin pool halls with his best friend Slick'... numerous criminal-law exams whose questions feature exclusively black of Hispanic or Asian criminals and exclusively white victims... many questions depicting gay men as the exclusive spreaders of AIDS, asking students to find the elements of murder... many, many questions in which women are beaten, raped, and killed in descriptions pornographically detailed (in contrast to streamlined questions, by the same professors, that do not involve female victims)..." The response of the administration to the memo below from Williams was that she was called "didactic, condescending, and 'too teacherly'." -SG]
MEMO excerpt follows:
I have been looking at law-school exams and studying them as a genre of legal writing involving complex relations of power and influence. I am interested in opening duscussion about the extent to which what we write into exams, as much as what we teach, conveys stereotypes, delimits the acceptable, and formulates ideals. I have been reviewing a collection of exams that exploit race and gender and violence in ways that I think are highly inappropriate. By “inappropriate” I mean that they use race, gender, and violence in ways that have no educational purpose, that are gratuitoous and voyeuristic, and that simultaneously perpetuate inaccurate and harmful stereotypes as “truthful.” This is accomplished by a variety of devices:
1. Compartmenalizing the relevant from the irrelevant is one of the primary skills law students are expected to master during their education. Frequently, professors employ red-herring facts from which the legally dispositive kernel facts must be clearly identified. But in the exams about which I am concerned, race, ethnicity, class, and gender are irrelevant even to the process of winnowing the relevant from the irrelevant. They finction as sheer gratuity. Their mention has absolutely nothing to do with the manipulation of rules necessary to resolve the fact patterns as con structed. [Here is where I respectfully disagree with the sister... they are not gratuitous. This is training lawyers to consciously exclude any real systems of social power that operate prior to the law, the subject of another blog piece on the trial of Hasan Akbar. -SG]
Furthermore, in the one or two questions in which a specified characteristic (e.g., a “gay male prositute” being tried for murder in the spread of AIDS) is arguably important to the disposition, or reflective of some current controversy in the law, students are specificallyinstructed n ot to consider it, or to consider it only to a limited extent (e.g., that same exam contained the following instructions: “while se’re all concerned about homophobia, don’t consider it in answering this problem”). I found exams whose basic message was M. is black, N. is a white racist, but you, you’re colorblind. O. is battered wife, P. is her vicious spouse-battering husband, but you, you must not consider provocation if O. hits P.
It is thus that information that is quite important in real life and real courtrooms becomes unimportant for purposes of answering a law school exam. Students are left to deal with raised issues of race and gender as unframed information, as mere backdrop — in a society where large numbers of people hold powerful, if not always spoken, impressions that “most blacks are criminals” or “women can’t be raped by their husbands” or “all Chicanos belong to gangs.”
The message that is reinforced by such exams is that while racist, sexist stereotypes may be part of life, it’s not important — or important *not* — to deal with them in the law. (And yet of course we know it is.) [But we also know that liberal law is designed to *stabilize* systems of power (class, gender, national oppression) that operate prior to law. -SG] Or that it’s not so important that it can’t be severed, caged, and neatly suppressed. Actual importance is thus not legitimated.