Intersectionality is not optional.

27 de agosto de 2017

If my experiences are anything like the average in law school, half of you will never have heard of “intersectionality”, and most of you who know what it means won’t have used it in the past two or three years that you’ve been in law school.  Very basically, intersectionality is the concept that describes the way in which oppressive modes of society (racism, sexism, homophobia, etc.) interact.  A person can be privileged (as a cisgendered man) while also being underprivileged (as a gay man, or a person with a disability, for instance).  Intersectionality demands that we examine all the ways in which we are advantaged and disadvantaged, and no matter how misunderstood we think we are, that we shut the hell up and think when we’re told we’re being hurtful to a disadvantaged group.

Are you getting irritated yet?  Do you think I’m talking down to you?  Just wait, I’m going to get worse.

Because I don’t care about offense.  I care about harm (to paraphrase this blogger here).  You’ll get over the fact that some blog writer called you a dumb racist.  In fact, getting defensive when someone tells you that you’re acting in an oppressive way is natural!  You can use it to your advantage to expand your intellect and practice.  Your clients, on the other hand, or the people on the other side of the bench, or the person you charge with a crime – those people will be harmedif you don’t stop for one cotton-picking minute and think about this thing we call privilege.

Privilege is difficult to define in the limited space I have here, but for my purposes I will tell you that privilege is the ability of an advantaged group to see itself as the default and/or to be unaware of the systematic abuses perpetrated against a disadvantaged group.  Now that we’ve had some definitions down, I’ll tell you why I’m bringing up privilege and intersectionality on a law blog and not on an equally awesome place like this.

As we enroll in law school, we are already enormously privileged.  Law school exists in part to provide a barrier to entry to the profession.  Few people are willing or able to spend thousands on tuition while taking three years away from the job market.  And that’s after four years of opportunity costs to attend an undergraduate school!  The very poorest among us are completely shut out from a legal education.  We students might tell ourselves that we are starving if we eat ramen noodles two days in a row, but in reality we are far removed from acute hunger and need.

Relatively high socioeconomic status is one characteristic that most law students share, and it allows us to close our eyes to the most hideous inequalities that we as agents of the legal system perpetuate.  This is how, to use a personal example, my classmates can rail against tax expenditure on education despite attending a generously subsidized public institution.  Students view tuition hikes and tax cuts as though they were changes to a TV schedule rather than problems that can totally cut off the underprivileged from education and legal careers.

Similarly, while law schools have tried (and not succeeded much) to recruit more people of color, they have ignored people with disabilities, people who identify as transgendered and transsexual, and people from the most impoverished areas of the country.  In three years of law school, I have had only two or three professors who were not white, rich, and able-bodied.  When we consider ethnicity and socioeconomic status in particular, students and faculty are more homogenous than the people in the community that we will eventually serve.  It is far too easy for us to assume our clients will be like us, to hand-wave away cultural conflict as interesting hypotheticals rather than a reflection of our own social makeup.

My personal experience – at a school fairly well known for liberalism and public service – has been a long series of confrontation with privilege.  Students still believe in the myth of social mobility.  We are asked only what the law is and the legal rapport for any given policy.  We are not educated on the social context or repercussions of the law.  Public policy is just a footnote for our professors.  We are never challenged about our comfortable social standing, our access to education, the way our practice might affect society at large.

To their credit, law schools do allow students to interact with underprivileged clients through pro bono and clinic work.  This approach, however, is problematic.  In the first place, the work is voluntary – and students pressed for time may not be able to enjoy an in-depth work experience.  Secondly, the pro bono structure encourages students to see low-paying clients as charity work, some good deed to soothe the soul in a patronizing white-man’s-burden kind of way.  The system certainly does not encourage students to undertake the radical re-imagining that our justice system really needs to rid itself of the parasite of privilege.

What law schools need is a program of coursework that forces students to look critically at the court system as a whole and confront systemic injustice.  We students must be educated on the ways in which the poor, the disabled, and the undocumented are disadvantaged in our system.  We must be asked to envision solutions and put them into practice beyond some band-aid thing like “have a bake sale”.

Furthermore, schools must become more diverse.  They must encourage more low-income and foreign students to attend, minority students to take leadership and bring in faculty with a view of law that has not been whitewashed.  Students cannot “think like a lawyer” if they have never been asked how their successes stem from their own privilege, or how their privilege might hurt others.  How can we adequately serve clients if we study only what the law says and not how it creates the backdrop of social norms that affects our clients?

If you are interested in reading more about privilege, race, intersectionality, and so forth, there are some fantastic law professors who blog on the topic.  I am particularly enamored of Feminist Law Professors, who treat sex issues along with race and disability.  I know some of you will comment, outraged, that I suggest teaching such touchy-feely subject matter in law school.  How dare I, you think, ask that you expand your horizons beyond contracts, business associations, and tax preparation?

“It takes time away from valuable classes, and it won’t help me on the bar at all!”

You poor things!

All I want is for you to put away your privilege for one minute here.  You’re paying $100k for an education; now’s the time during your privileged lives to think critically for once.

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