CLR 30 1 (Fall 2023)(AS edits).pdf

A JOURNAL OF LAWYERING AND LEGAL EDUCATION

VOL. 30 / NO. 1 FALL 2023

SYMPOSIUM

PROMOTING JUSTICE: ADVANCING RACIAL EQUITY THROUGH

STUDENT PRACTICE IN LEGAL CLINICS

Deborah N. Archer

INTRODUCTION TO THE SYMPOSIUM

RACE AND ENTREPRENEURSHIP: RECLAIMING NARRATIVES

ADVANCING RACIAL JUSTICE THROUGH CIVIL AND

CRIMINAL ACADEMIC MEDICAL-LEGAL PARTNERSHIPS

Yael Zakai Cannon

& Vida Johnson Antonio

M. Coronado

ENVISIONING REPARATIVE LEGAL PEDAGOGIES CRITICAL

CLINICAL FRAMES: CENTERING ADOLESCENCE,

RACE,TRAUMA, AND GENDER IN PRACTICE-BASED

PEDAGOGY

Edua

rdo R. Ferrer &

Kristin N. Henning

Jan

el A. George

REFLECTIONS ON THE LAUNCH OF A RACIAL JUSTICE

CLINIC AND THE BRAVERY OF LIONS

TEAMWORK MAKES THE DREAM WORK:IMPROVING

COMMUNITY LAWYERING THROUGH A POLICY AND

TRANSACTIONAL LAW CLINIC PARTNERSHIP

Jennifer Li

TECH SUPPORT: WIRING TECHNOLOGY LAW CLINICS TO

SERVE RACIAL JUSTICE

Laura Moy

CLINIC

AL LEGAL

EDUCATION ASSOCIATION

ASSOCIATION OF

AMERICAN LAW

SCHOOLS

NEW YORK UNIVERSITY

SCHOOL OF LAW

Priya Baskaran

& Alicia

Plerhoples

CLINICAL LAW REVIEW

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OURNAL OF

AWYERING AND

EGAL

DUCATION

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CLINICAL LAW REVIEW

A J

OURNAL OF

AWYERING AND

EGAL

DUCATION

Volume 30 Fall 2023 Number 1

SYMPOSIUM

PROMOTING JUSTICE: ADVANCING RACIAL EQUITY THROUGH

STUDENT PRACTICE IN LEGAL CLINICS

NTRODUCTION TO THE

YMPOSIUM

Deborah N. Archer 1

ACE AND

NTREPRENEURSHIP

: R

ECLAIMING

ARRATIVES

Priya Baskaran & Alicia Plerhoples 7

DVANCING

ACIAL

USTICE

HROUGH

IVIL AND

RIMINAL

CADEMIC

EDICAL

-L

EGAL

ARTNERSHIPS

Yael Zakai Cannon & Vida Johnson 29

NVISIONING

EPARATIVE

EGAL

EDAGOGIES

Antonio M. Coronado 65

RITICAL

LINICAL

RAMES

: C

ENTERING

DOLESCENCE

, R

ACE

, T

RAUMA

AND

ENDER IN

RACTICE

BASED

EDAGOGY

Eduardo R. Ferrer & Kristin N. Henning 113

EFLECTIONS ON THE

AUNCH OF A

ACIAL

USTICE

LINIC AND THE

RAVERY OF

IONS

Janel A. George 151

EAMWORK

AKES THE

REAM

ORK

: I

MPROVING

OMMUNITY

AWYERING

HROUGH A

OLICY AND

RANSACTIONAL

LINIC

ARTNERSHIP

Jennifer Li 187

ECH

UPPORT

: W

IRING

ECHNOLOGY

LINICS

ERVE

ACIAL

USTICE

Laura Moy 205

INTRODUCTION TO THE SYMPOSIUM

EBORAH

N. A

RCHER

We are living through an inflection point in American history.

America’s foundational principles, and the mechanisms we rely on to

defend them, are under profound and sustained attack. The work to

advance civil rights and racial justice in America has never been easy.

But some days, some years, it can feel like we are losing more than we

are winning. And the losses become harder to bear.

During times like these, many of us who care about racial justice

may find it difficult to keep the struggle going; to get up and keep

fighting. On my office wall, I have posted several quotes and phrases

that give me the kick I need when I am finding it difficult to keep

moving forward. One is from civil rights leader Mary McLeod Be-

thune. It says: “If we have the courage and tenacity of our forebears,

who stood firmly like a rock against the lash of slavery, we shall find a

way to do for our day what they did for theirs.” This is our chal-

lenge—it is what I wake up thinking about in the morning and what

helps me get through the challenges of the past several years. Our

forebearers faced steeper challenges and longer odds. We must find

the strength to do our part for the next generations, just as our

forebearers set the table for us.

To find that strength, we must start by acknowledging the breadth

of the challenges we face. As clinicians, if we claim that the clinics we

teach are fighting for racial justice, or that our clinics are anti-racist,

our work must rise to the level of that fight.

America is fundamentally an idea, an ethos, a set of principles

and demands. The story of America is, at its heart, the story of Ameri-

cans’ struggle to protect and implement those principles and demands.

Who gets to feel like they belong? Who gets to benefit from the un-

precedented wealth of this nation? Who has access to the opportuni-

ties that being in America offers? Who gets to receive the equal

protection of our laws? Who gets to live with safety and dignity? And

who gets to decide the answers to these questions?

You cannot seriously wrestle with these questions without under-

standing systemic racism.

Systemic racism is America’s operating system. And what is so

* Margaret B. Hoppin Professor of Clinical Law and Associate Dean for Experiential

Education and Clinical Programs, New York University School of Law. President, Ameri-

can Civil Liberties Union.

2 CLINICAL LAW REVIEW [Vol. 30:1

remarkable, and so heartbreaking, about America, is how durable and

effective that operating system has been. The systems of racial separa-

tion and oppression have thrived, in part, because they are so mallea-

ble. Systemic racism is creative. Systemic racism constantly evolves.

America ratified the Fifteenth Amendment and guarantees Black

men the right to vote, and America responds with poll taxes, grandfa-

ther clauses, and voter identification laws.

America makes Jim Crow and housing discrimination illegal, and

America responds with redlining, racially exclusionary housing poli-

cies, the criminalization of poverty, and living while Black.

America makes slavery illegal, and America responds with mass

incarceration, police brutality, and racial terror.

The genius of America’s systemic racism lies in its ability to

adapt.

In his famous poem, Let America Be America Again, Langston

Hughes wrote:

O, let America be America again—

The land that never has been yet—

And yet must be—the land where every man is free.

The land that’s mine—the poor man’s, Indian’s, Negro’s, ME—

This is our constant struggle—bridging the gap between the

American that was promised—and the America that is. We have the

power to make America be America.

To bridge that gap, and to respond to the creative and evolving

nature of racial oppression, our work as law school clinicians must

evolve. Yet so much—I would say too much—of clinical legal educa-

tion looks like it did when I was a law school student almost 30 years

ago.

Over the past several years, we have seen a transformation in the

national dialogue on racial justice. Activists and advocates have shone

a piercing light on practices that are not only part of America’s racist

past, but that remain central to America’s present de-humanization of

Black bodies, Black communities, and Black identity. And I have

found myself encouraged over these past few years, as more and more

Americans have been unable to deny the ugly truth that the light has

made clear and plain. More Americans have come to understand that

the source of Black America’s problems are not in Black people, but

in the racism systemically woven into the fabric of America. Activists

and advocates are pulling on the threads that connects so much of

America’s systems, laws, and structures—the need to control, regu-

late, exclude, and devalue Black people.

But what role will we as clinical faculty play in meeting the de-

mands for racial justice? Are we doing our part to finally transform

Fall 2023] Introduction to the Symposium 3

these systems?

Too often, and sometimes exclusively, clinical education is fo-

cused on specific acts of injustice before us: a wrong done by one per-

son, or business, or institution against another. And our efforts are too

often limited to correcting that individual wrong. Too often, we de-

clare victory when we hold one person accountable for their evil

actions.

Now do not get me wrong. Individual cases are important. And

certainly, for the plaintiff whose illegal eviction is overturned or who

receives damages for their illegal termination, the individual case

means everything. But we also know that those cases do not usually

change the systems that lead to illegal evictions or terminations.

I want more clinicians to join the fight to challenge structural ra-

cial inequality. It is not enough to speak to our students about sys-

temic and structural racism. We must give them the tools to challenge

those systems and structures.

We bring cases challenging student suspensions, but don’t have a

strategy to address the racism that requires parents to send their chil-

dren to under-resourced, heavily-segregated public schools which con-

sistently under-prepare their students for college and life and put

them on track for involvement with the criminal legal system. Impor-

tantly, we are challenging acts of employment discrimination. But lim-

iting our clinics to individual employment discrimination cases misses

the racism of systems that require people to live an hour and a half

away from decent jobs because their communities are ill-served by

public transportation. It ignores the racism of a lack of access to su-

permarkets providing affordable and healthy food, while your chil-

dren are sick because they are exposed to environmental stressors,

and you cannot access regular health care. Indeed, we are fighting

evictions and helping to keep people, families, and communities sta-

ble. But that work does not address the long-time damage to commu-

nities of color that were ripped apart through highway development

and systemic underdevelopment, at an incalculable cost to wealth,

health, and community. It will be difficult if not impossible, to find a

single actor to hold responsible for these harms. But these are all faces

of systemic racism.

Systemic racism speaks to the fact that the systems on which our

society functions—the economic, education system, health care, trans-

portation, criminal legal system—and our structures—physical, cul-

tural, and social—are all infused with and impacted by the racism

within which they were created and maintained.

To effect change, then, not only for our individual clients but for

their communities and for the generations that follow, we must iden-

4 CLINICAL LAW REVIEW [Vol. 30:1

tify the systems that come together to drive racial inequality—and

challenge them.

I want us to challenge ourselves to think about how we can work

with people of color to advocate for systemic change and to build

power. This will require a deeper focus on systems and power, and the

complexities facing impacted communities who envision a more just

future.

We need to tear down the legal and policy foundations of racial

inequality.

This includes, of course, a commitment to reconcile with the past.

The roots of racism in 2023 have a direct line to the racist policies and

practices of the past. We cannot dismantle racism today unless we take

the time to acknowledge and explore those connections. You cannot

have healthy fruit if you won’t root out the poison in the tree.

This includes work to address slavery and its legacy. Slavery was

a system of theft. It was theft of life as people were stolen, enslaved,

and brutalized. Slavery was theft of property through forced labor. It

was the theft of identity and home, as people were repeatedly ripped

from the community and culture that are central to human experience.

It was theft of happiness, dignity, and potential. Slavery became im-

printed onto the DNA of the nation and remains the foundation of

racial inequality. After the abolition of slavery, new systems of white

supremacy evolved in its place, to continue the theft and exploitation

that were at slavery’s core.

Today we see the vestiges of slavery in mass incarceration and

mass criminalization. We see it in police violence and brutality. We see

it in the racial wealth gap and the education gap. The systems that

replaced slavery are all operating in the same vein—as systems of

theft. Theft of life, theft of property. Theft of identity and home. Theft

of happiness, dignity, and potential. They have adapted, as racism al-

ways does. But their work is the same.

Tearing down the legal and policy foundations of racial inequality

also requires us to support communities of color as they build true

political power and tear down the barriers to full participation in the

democratic process. In so many areas of civil rights and civil liberties,

we are fighting a battle of ideas. But those on the side of racial justice

will find it difficult to win if those who currently exercise dispropor-

tionate political power are able to use it to systemically disenfranchise

people of color, to silence their ideas and undermine their interests.

Systematic barriers to democratic participation not only undermine

the ability of people to color to protect their interests; it discourages

those people from participating in what they rightfully experience as a

rigged contest. And that is how democracies die: when people believe

Fall 2023] Introduction to the Symposium 5

they don’t have any political power and worse when they may in fact

be right.

Law school clinics must also engage in the struggle to build eco-

nomic prosperity. Gaps in wealth between people of color and white

households expose accumulated inequality and discrimination, as well

as differences in power and opportunity that can be traced back to this

nation’s inception. Economic justice and racial justice are two sides of

the same coin. Economic justice work is critical because it supports

our ability to access and enjoy other civil rights and civil liberties. As

Dr. King put it, “What does it profit a man to be able to eat at an

integrated lunch counter if he doesn’t have enough money to buy a

hamburger?” Racial justice requires stable jobs and incomes, afforda-

ble housing, the provision of basic financial services, and meaningful

and equal access to the mainstays of an economically vibrant life.

And we need to challenge justice by geography. We are only as

strong as our individual parts, and as a country we are only as strong

as our individual states. There is work we all must do to build a future

where “we the people” means that everyone, everywhere, can access

their fundamental rights, regardless of where they live; where every-

one, everywhere can live a choice filled life with dignity and respect.

Justice by geography has been a part of America’s story from the

very beginning. Place and space have long decided whether one is free

or faces injustice and whether one has access to opportunity. This

truth is as clear today as it has ever been. Our country’s union is

barely being held together, and the nation’s past and present are being

mapped across regional lines. We live in two Americas, and geography

increasingly determines whether one receives the full rights of citizen-

ship and belonging.

Today, the right to vote, the right to make healthcare decisions,

and the right to marry whom you love depends on whether you live in

California or Arkansas, Florida or Illinois. Black voters stood in the

baking sun for hours to vote in a Senate race simply because they are

Georgians. Classrooms have been censored and students have been

silenced and fed an alternate version of American history—one that

erases the legacy and reality of racial inequality and systemic racial

oppression—because they live in Florida. Fighting for justice by geog-

raphy requires us to support the people and communities fighting the

fight against white supremacy in many of the communities that per-

fected it—many of the communities at the forefront of creative resis-

tance to racial justice and equality.

We all must rise to the moment. At this inflection point in our

history, clinical legal educators must take advantage of this window of

opportunity to deepen and expand our work to challenge racism in all

6 CLINICAL LAW REVIEW [Vol. 30:1

its forms. We have an opportunity to tear down the architecture of

inequality and build the foundation for equality, challenging the sys-

tems and structures through which racism continues to constrain the

life outcomes of some and expand the life outcomes of others. Or we

can squander the legacy of our ancestors, and watch our nation go

backwards.

If we are all serious about racial justice, there are two questions

we must ask ourselves. What are we prepared to help dismantle? And

what are we prepared to help build? You and your universities have

extraordinary power and influence. Use those resources to tear down

the infrastructure of racial inequality and help to build a new Ameri-

can infrastructure—one with equity and justice at its core.

Law professors often speak about the power of our scholarship to

shape the law. The work we do in our clinics has as much potential, if

not more. Challenging deeply embedded racial inequality will involve

a reimagining and rethinking about how we can use the law to

strengthen communities of color and allow the people who live in

those communities to thrive. We must rethink what it means to chal-

lenge imbedded systems of racial inequality. Our civil rights laws have

the potential to dismantle the structures and systems that stand as

monuments to institutional racism. But to do so, we must re-envision

these laws as tools for community equity and distributive equality. We

must also grapple with how civil rights laws can more effectively ad-

dress the intersectional harms and the mingling of public and private

discrimination.

Toward the end of his poem, Langston Hughes makes a promise.

It is a promise we are all called upon to embrace every day.

America! O, yes,

I say it plain,

America never was America to me,

And yet I swear this oath—

America will be!

As we think about racial justice work, we have to recommit to

doing the work—all of the work—to make America be America.

RACE AND ENTREPRENEURSHIP:

RECLAIMING NARRATIVES

RIYA

ASKARAN

& A

LICIA

LERHOPLES

This essay makes the case for engaging in counter-narratives and

inclusive storytelling within the transactional clinic curriculum. The au-

thors leverage lessons from Critical Race Theory to amplify the voices

and experiences of underrepresented entrepreneurs and marginalized

communities in both clinic seminar and selected casework. In doing so,

we challenge hegemonic narratives of entrepreneurship and expose our

law students to the presence and impact of interlocking systems of sub-

ordination that minimize the existence and contributions of entrepre-

neurs of color. We challenge our law students and ourselves to become

more creative and thoughtful lawyers to a more inclusive and diverse set

of client-entrepreneurs.

NTRODUCTION

The myths and misconceptions surrounding entrepreneurship

promote a homogenous vision synonymous with whiteness.

This nar-

rative minimizes the lived experiences of numerous entrepreneurs of

color, devaluing their contributions because they do not match the

popular perceptions of entrepreneurial success.

Why is our conceptu-

* Priya Baskaran, Associate Professor of Law, American University Washington Col-

lege of Law. Alicia Plerhoples, Anne Fleming Research Professor of Law, Associate Dean

for Clinics and Experiential Learning, Georgetown University Law Center. This essay is

part of the Promoting Justice: Advancing Racial Equity Through Student Practice in Legal

Clinics Symposium co-sponsored by the Georgetown Law Clinics and the Georgetown

University Racial Justice Institute. For exceedingly diligent research assistance, we thank

Taylor Fisher and Adria Weaver.

Lynnise E. Phillips Pantin, The Wealth Gap and the Racial Disparities in the Startup

Ecosystem, 62 S

. L

OUIS

U. L.J. 419, 427 (2018). Although this essay focuses on race, the

authors recognize that the dominant narratives surrounding entrepreneurship also exclude

and ignore intersectional experiences connected to gender, sexual orientation, immigration

status, neurodiversity, and socio-economic status.

See generally Elizabeth MacBride, White Men Are Now the Minority of Business

Owners in the United States, F

ORBES

(May 23, 2021) https://www.forbes.com/sites/elizabeth

macbride/2021/05/23/white-men-are-now-the-minority-of-business-owners-in-the-united-

states/?sh=22c5c5431582 (“The demographic shift in the makeup of the entrepreneurial

class in the United States has been largely overlooked, because the U.S. Census Bureau

analysis is centered on employer businesses, where white men are a shrinking proportion

of owners but still make up about 60% of all business owners. Narratives about business

owners also tend to focus on a tiny minority of companies, fast-growth tech companies.”);

Jordan Weissman, Entrepreneurship: The Ultimate White Privilege? T

TLANTIC

(Aug.

16, 2013), https://www.theatlantic.com/business/archive/2013/08/entrepreneurship-the-ulti-

8 CLINICAL LAW REVIEW [Vol. 30:7

alization of entrepreneurs so painfully narrow? More importantly,

how does this misconception limit our lawyering to entrepreneurs who

do not fit the archetype? Lawyers of entrepreneurs—primarily trans-

actional and intellectual property attorneys—cannot lawyer towards

emancipatory ends if we erase the experiences, challenges, victories,

and stories of diverse individuals negatively impacted by economic

systems and policies.

This essay uses key lessons from Critical Race Theory (CRT) to

disrupt the dominant narrative of who we recognize as an entrepre-

neur.

CRT scholars have documented three categories of counter-sto-

ries: personal stories, third-party narratives, and composite stories. All

three alternative narratives “facilitate social, political, and cultural co-

hesion, as well as survival and resistance among marginalized

groups.”

Personal stories document and acknowledge “the exper-

iences of persons of color and how they experience racial discrimina-

tion, insult, injury or disadvantage.”

Third-party narratives transform

“a particular, individual experience” into a bridge or shared experi-

ence with others.

Finally, “composite stories or narratives represent

an accumulation, a gathering together, and a synthesis of numerous

individual stories.”

When viewed collectively, these stories challenge

and change the dominant narrative as well as the underlying legal

landscape that elevates certain sectors, individuals, and communities.

This essay makes the case for engaging in counter-narratives and in-

clusive storytelling within the transactional clinic curriculum, and pro-

vides practical tools for doing so. We also showcase the role of case

mate-white-privilege/278727/ (noting the underlying study limits the dataset of entrepre-

neurs to self-employed individuals with incorporated businesses, effectively eliminating

smaller entrepreneurs like “bodegas” and similar enterprises). See also Rosanna Garcia &

Daniel W. Baack, The Invisible Racialized Minority Entrepreneur: Using White Solipsism to

Explain the White Space, J. B

. E

THICS

(2022), https://link.springer.com/article/10.1007/

s10551-022-05308-6 (discussing the prevalence of “white solipsism” to erase and marginal-

ize racial minorities in entrepreneurship).

Counter-stories facilitate social, political, and cultural cohesion, as well as survival

and resistance among marginalized groups. Therefore, they need not be created only as a

direct response to majoritarian stories.

Lisa R. Merriweather Hunn, Talmadge C. Guy & Elaine Manglitz, Who Can Speak

for Whom? Using Counter-Storytelling to Challenge Racial Hegemony, in P

ROCEEDINGS OF

THE

DULT

DUCATION

ESEARCH

ONFERENCE

244 (2006), https://newprairiepress.org/

aerc/2006/papers/32.

Id. at 245.

Id.

Imani Perry, Cultural Studies, Critical Race Theory and Some Reflections on Meth-

ods, 50 V

ILL

. L. R

. 915, 922 (2005) (noting that Critical Race Theory challenges “norma-

tive standards and ideologies that serve to marginalize and oppress peoples of color” by

“exposing the norms that serve to marginalize us (notions of merit, color blindness without

considering privilege, wealth versus income, etc.”)).

Fall 2023] Reclaiming Narratives 9

selection in introducing and developing counter-narratives to our law

students, challenging them to develop into more creative and thought-

ful lawyers.

I. N

ARRATIVES OF

NTREPRENEURSHIP

A. The Dominant and Data-Driven Narratives

Law students encounter entrepreneurship narratives long before

they begin law school. Bill Gates, Steve Jobs, Jeff Bezos, and Elon

Musk are household names. Entrepreneurship is nearly synonymous

with Silicon Valley in the American lexicon. Entrepreneurship success

stories that reach main stream media and permeate American culture

focus on entrepreneurs who have built companies and become part of

the billionaire class. “Conventional wisdom tells us that entrepreneurs

are very special people. They are heroes who stand alone and over-

come great odds to build companies through superhuman efforts.”

Scott Shane’s The Illusions of Entrepreneurship grounds the dom-

inant entrepreneurship narrative in reality by empirically describing

what typical entrepreneurship actually looks like.

Shane describes

the typical entrepreneur as a middle-aged white man with no special

qualities who is “just trying to make a living, not trying to build a high-

growth business.”

Additionally, entrepreneurship is common:

Shane’s data shows us that 11.1% of U.S. households have a self-em-

ployed head and 11.3% of households own a business.

Entrepre-

neurs are people who “just[ ] want to earn a living and support [their]

family.”

They are not overwhelmingly computer scientists or tech

engineers; it is much more likely that their entrepreneurial venture is

a “low-tech endeavor, like a construction company or an auto repair

shop” started as a “sole proprietorship financed with $25,000 of his

savings and maybe a bank loan that he guarantees personally.”

Shane’s data shows us that the dominant narrative of entrepre-

neurship in the United States is false. Data proves that entrepreneur-

ship more typically encompasses mundane solo businesses.

Nonetheless, the data also concludes that U.S. entrepreneurship is

largely dominated by white men. In drawing data from the entirety of

America, Shane presents a data-driven narrative that more recent

COTT

A. S

HANE

, T

LLUSIONS OF

NTREPRENEURSHIP

: T

OSTLY

YTHS

HAT

NTREPRENEURS

, I

NVESTORS

AND

OLICY

AKERS

IVE

40 (2008).

Id.

Id. at 41.

Id. at 3.

Id. at 4.

Id. at 3-4.

10 CLINICAL LAW REVIEW [Vol. 30:7

data supports.

However, just as we should not learn to lawyer to the

dominant but false narrative of entrepreneurship, critical race theory

requires that we not learn to lawyer solely to the typical entrepreneur

when diversity exists. One can think of entrepreneurship on a bell

curve. The dominant (but false) narrative sets a white, college-edu-

cated, “jet-setting, Silicon-Valley residing engineer who, along with a

couple of his buddies, has raised millions of dollars of venture capital

to start a new company to make a patent-protected gizmo” at the top

of the bell curve as the typical entrepreneur. Shane’s research resets

the narrative with a middle-aged self-employed white man engaging in

a “low-tech endeavor”

at the top of the bell curve. Critical race theo-

rists ask what entrepreneurs sit on the rest of the bell curve? How do

we lawyer to them? What laws, practices, and systems have prevented

entrepreneurs who do not fit the dominant or data-driven narratives

from accessing and having lawyers who are equipped to represent

them and their various forms of entrepreneurship?

B. Counter-narratives

As used by critical race theorists, storytelling draws upon the

lived experiences of an individual or community.

Stories are inher-

ently personal; a necessary counterbalance to supposedly anodyne

laws and regulations. CRT uses narratives to challenge dominant

norms and assumptions, centering the experiences of diverse individu-

als and groups.

CRT uses these counter-narratives to deconstruct

harmful defaults and “embedded preconceptions that marginalize”

diverse groups and “conceal their humanity.”

These alternative sto-

ries also reconstruct and reimagine a more just outcome and circum-

stances. By doing so, “well told stories describing the reality of Black

See MacBride, supra note 2 (“[W]hite male business owners comprise about 41% of

the 30.5 million total owners of small businesses in America.”).

HANE

, supra note 9, at 3.

This essay uses the definition of “narrative theory” connected to critical race theory.

In CRT, “narrative voice, the teller, is important to critical race theory in a way not under-

standable by those whose voices are tacitly deemed legitimate and authoritarian. The voice

exposes, tells and retells, signals resistance and caring, and reiterates what kind of power is

feared most—the power of commitment to change.” Derrick A. Bell, Who’s Afraid of Crit-

ical Race Theory?, 1995 U. I

. L. R

. 893, 907 (1995). See also Leslie Espinoza & Angela

P. Harris, Embracing the Tar-Baby—LatCrit Theory and the Sticky Mess of Race, 85 C

A-

LIF

. L. R

. 1585, 1630 (1997) (“Critical theorists tell stories, both ‘real’ and ‘fictional.’

Arguably, the most significant impact of critical theory has been the reformation of legal

analytical practices through the use of stories. Outsider tales provide an opportunity to

breach the limits of language in describing oppression. They lead to the creation of new

language. That which has not yet been named can be understood.”)

See generally R

ICHARD

ELGADO

& J

EAN

TEFANIC

RITICAL

ACE

HEORY

: A

NTRODUCTION

(2001).

Id. at 50.

Fall 2023] Reclaiming Narratives 11

and brown lives can help readers to bridge the gap between their

world and those of others.”

In the absence of meaningful narratives, hegemonic norms and

dominant perspectives are reinforced. Stories laud successful entre-

preneurs pulling themselves up by their bootstraps.

We never con-

sider or acknowledge that many may be barefooted. We erase entire

populations of entrepreneurs by closing our ears to their stories.

Worse, we compound the negative impacts by entrenching hegemony

and stifling divergence.

We create laws and policies based on partial

information and lopsided narratives, utterly failing to build nuanced

and resilient entrepreneurial ecosystems.

In our clinics in Washington, D.C., we see a real divergence from

both the hegemonic, false narrative of entrepreneurship and from

Shane’s data-driven narrative of entrepreneurship. Whereas Shane’s

data tells us a lot about the average entrepreneur in America, the

faces of entrepreneurship in D.C. look different—42.2% of small busi-

nesses in D.C. are owned by racial minorities and 47.8% are owned by

women; 33.1% of small businesses in D.C. have one or more Black

owners.

78% of D.C. small businesses have no employees.

It be-

comes clear that even the data-driven narrative is place-based, and not

universal. Our transactional clinics practice in and draw clients from

this diverse entrepreneurial environment.

II. T

OSTS OF

XCLUSION

Excluding narratives that do not fit the dominant or data-driven

story of entrepreneurship has long-lasting consequences for communi-

ties, clients, attorneys, and the legal profession as a whole. From an

economic development and investment perspective, this myopia can

lead to strategies that do not generate true, inclusive economic

Id. at 49.

Horatio Alger, Jr. was a novelist famed for portraying rags to riches stories, where

impoverished youth were able to attain great wealth thanks to their resilience and work

ethic. See generally The Horatio Alger Society, Horatio Alger, Jr.—Biography, http://

www.horatioalgersociety.net/100_biography.html (last visited May 19, 2023).

“Dominant narratives carry multiple layers of assumptions that serve as filters in

discussions of racism, sexism, classism, and so on. In short, majoritarian stories privilege

Whites, men, the middle and/or upper class, and heterosexuals by naming these social loca-

tions as normative points of reference.” Hunn, Guy, & Manglitz, supra note 4, at 244.

Compare U.S. S

MALL

USINESS

DMINISTRATION

FFICE OF

DVOCACY

, 2022

MALL

USINESS

ROFILE

ISTRICT OF

OLUMBIA

2-3 (2022) (33.1% of small businesses

in D.C. have one or more Black owner) [hereinafter SBA DC P

ROFILE

] with S

HANE

, supra

note 9, at 143 (indicating that 4.24% of small businesses in the U.S. have Black owners).

SBA DC P

ROFILE

, supra note 23, at 2. Many more D.C. small businesses have no

employees than Shane’s data show. According to Shane, only “24 percent of the new busi-

nesses founded each year employ anyone (and only 16.9 percent of the self-employed hire

any employees).” S

HANE

, supra note 9, at 65.

12 CLINICAL LAW REVIEW [Vol. 30:7

growth. Economic investment in place does not always translate into

investment in communities, but can focus on physical resources that

can be rebuilt or redesigned to entice outside talent to move into un-

derdeveloped communities. In this regnant scenario, existing popula-

tions or community institutions are not recognized as assets. The

resulting economic development strategy actively devalues and ig-

nores the community, perpetuating exclusion, and compounding eco-

nomic hardship.

As educators, we are also aware of the broader costs to our pro-

fession when only servicing one category of client. In lawyering for the

status quo, we diminish our ability as attorneys to engage in creative

thinking and problem-solving. Deals become reductive, templates

abound, and we lawyer within narrow constructs that prevent innova-

tion. The following section outlines in greater detail the costs to both

clients and attorneys in maintaining hegemony in our transactional

work.

A. The Costs of Exclusion to Clients

Returning to the various narratives of entrepreneurship, we must

interrogate the costs of exclusion from these narratives to clients and

to the broader field of business law. First, who are we excluding by

adhering to the status quo?

1. Exclusion by Place: Black Communities

In his book, Know Your Price, Andre Perry notes the importance

of understanding the interconnected nature of Black communities,

Black-owned businesses, and devaluation by public and private

forces.

He contends that “urban planning” and “urban development

efforts” in Black communities are extractive in nature. Rather than

investing in people and community, they see only the value of place as

defined by land, building, and other inanimate physical assets.

contrast, he notes how much of the development of Pittsburgh into a

tech hub is connected to investments in “the people of Carnegie Mel-

lon, University of Pittsburgh, Google,” in addition to physical assets.

The failure to recognize Black individuals and their communities

as worthy of investment only entrenches and perpetuates past harms.

Numerous leading historians, legal scholars, and economists have

highlighted the lasting impact of racist federal and state policies that

NDRE

M. P

ERRY

, K

NOW

OUR

RICE

: V

ALUING

LACK

IVES AND

ROPERTY IN

MERICA

’

LACK

ITIES

34-41 (2020).

Id. at 40 (noting the “invisibility of black institutions, firms, social clubs” in targeted

economic strategies).

Id. at 39.

Fall 2023] Reclaiming Narratives 13

resulted in massive devaluation of Black communities.

One Brook-

ings Institute analysis estimates that homes in Black communities are

devalued at $48,000 per home on average, resulting in $156 billion in

cumulative losses nationwide.

The roots of this devaluation are en-

twined with racist public policy and private divestment, channeling re-

sources, funds, and employment opportunities away from Black

communities. As Perry emphasizes, this significant devaluation is

money that could be spent starting businesses, saving for college, and

growing the general economic health of the community.

Exclusion also prevents any hope of remediation and future

growth. For example, there is much emphasis on developing the tech-

nology sector as a local economic development strategy. While data

has shown that there can be positive impacts, the capture of this eco-

nomic benefit by marginalized groups is minimal.

Much of this sec-

tor appears to focus on bringing in new firms to existing spaces, rather

than leveraging and investing in existing community members and as-

sets.

Perry underscores the consequences on communities and indi-

viduals by emphasizing that “[e]conomic growth and advancements in

technology are a direct result of strategic investments in people who

are trusted. Those who are not trusted are left behind.”

Perry under-

scores that the recipients of economic investment “have no deep ties

See generally Audrey G. McFarlane, The New Inner City: Class Transformation, Con-

centrated Affluence and the Obligations of the Police Power, 8 U. P

. J. C

ONST

. L. 1 (2006);

Michelle Wilde Anderson, Cities Inside Out: Race, Poverty, and Exclusion at the Urban

Fringe, 55 UCLA L. R

. 1095 (2008); R

ICHARD

OTHSTEIN

, T

OLOR OF

: A

ORGOTTEN

ISTORY OF

OVERNMENT

EGREGATED

MERICA

(2017);

Deborah N. Archer, The New Housing Segregation: The Jim Crow Effects of Crime-Free

Housing Ordinances, 118 M

ICH

. L. R

. 173 (2019); Norrinda Brown Hayat, Section 8 Is

the New N-Word: Policing Integration in the Age of Black Mobility, 51 W

ASH

. U. J. L. &

’

. 61 (2016); R

ASHMI

YAL

-C

HAND

, C

OLLABORATIVE

APITALISM IN

MERICAN

ITIES

: R

EFORMING

RBAN

ARKET

EGULATIONS

(2018); Anika Singh Lemar, An Op-

portunity Zone Falls in a Forest, 48 F

ORDHAM

. L.J. 1183 (2021); Jade A. Craig, “Pigs

in the Parlor”: The Legacy of Racial Zoning and the Challenge of Affirmatively Furthering

Fair Housing in the South, 40 M

ISS

. C. L. R

. 5 (2022); D

ESTIN

ENKINS

, T

ONDS OF

NEQUALITY

(2021); T

HOMAS

UGRUE

, T

RIGINS OF THE

RBAN

RISIS

(1996).

Andrew M. Perry, Jonathan Rothwell & David Harshbarger, The Devaluation of

Assets in Black Neighborhoods: The Case of Residential Property (Nov. 27, 2018), B

ROOK-

INGS

, https://www.brookings.edu/research/devaluation-of-assets-in-black-neighborhoods/.

Subprime mortgages are another example of the devaluation of Black communities. See

Bernadette Atuahene, Predatory Cities, 108 C

ALIF

. L. R

. 107, 124 (2020).

ERRY

, supra note 25, at 57.

See Neil Lee & Stephen Clarke, Do Low-Skilled Workers Gain from High Tech Em-

ployment Growth? High-Technology Multipliers, Employment and Wages in Britain, 48 Re-

search Pol’y 1, 10 (2019).

Black residents of Pittsburgh experienced a double-digit decline in median wage dur-

ing the tech boom period (2005 to 2015). In contrast, white workers realized an 8% gain in

wages. Metro Monitor 2017 Dashboard (2017), B

ROOKINGS

https://www.brookings.edu/in-

teractives/metro-monitor-2017-dashboard/.

ERRY

, supra note 25, at 41,

14 CLINICAL LAW REVIEW [Vol. 30:7

to Black communities” effectively limiting growth and investment. By

erasing the story of Black-owned businesses as entrepreneurship, we

perpetuate a harmful cycle of race and place-based devaluation. We

ignore the value these enterprises bring to the community, minimizing

their contributions and ultimately deeming them as unworthy of in-

vestment. This causes immediate harm and hardship, but it also causes

larger systemic and societal harms by maintaining practices that ex-

tract value from marginalized communities.

2. Exclusion by Scale: Small and Necessity Entrepreneurs

In addition to excluding entire communities, the dominant narra-

tive erases entire classes of entrepreneurship because of the scale of

an enterprise or the economic sector in which the labor is per-

formed.

Many excluded entrepreneurs are subject to interlocking

systems of subordination based on gender, nationality, race, and

class.

For example, there is no room in our story of successful entre-

preneurship for self-employed entrepreneurs in the domestic and

care-taking economy. This sector provides essential services from

home daycares, residential and commercial cleaning services, and

home healthcare workers. These sectors are heavily staffed by women

and racial minorities.

Often the entrepreneurs and workers in this

ERRY

, supra note 25, at 39 (stating that “[i]nclusive growth can’t happen without

investment in existing talents and social network within the neighborhoods where they

reside”).

Timothy Bates, William E Jackson & James H. Johnson, Advancing Minority Re-

search on Minority Entrepreneurship, 613 A

NNALS

. A

CADEMY

. & S

. S

. 10,

11–12 (2007); Steven J. Gold, A Critical Theory Approach to Black American Entrepre-

neurship, 39 E

THNIC

& R

ACIAL

TUD

. 1697, 1685 (2016).

Susan R. Jones, Alleviating Poverty—What Lawyers Can Do Now, 40 H

. R

. 11,

13 (2014) [hereinafter Jones, Alleviating Poverty] (“For some, like immigrants and people

with criminal records, microbusiness may be their only option for earning income, a phe-

nomenon known as necessity entrepreneurship. For others, it’s an alternative to a second

or third job.”); see also Susan R. Jones, Representing Returning Citizen Entrepreneurs in the

Nation’s Capital, 25 J. A

. H

OUSING

& C

OMM

. D

. L. 45, 52 (2016)

(“[E]ntrepreneurship is especially important for returning citizens in D.C. who have been

incarcerated in jurisdictions outside of the city and may lack the necessary social capital to

obtain gainful employment. . . . [S]upported by shared workspaces, business incubators and

accelerators, microbusiness training and loan programs, and community development fi-

nancial institutions, entrepreneurship in D.C. is rapidly advancing, necessitating special ef-

forts to include returning citizens in the entrepreneurial eco-system. . . . [S]elf-employment

through entrepreneurship is a form of necessity entrepreneurship for some returning

citizens.”).

See generally E

NOBONG

RANCH

, O

PPORTUNITY

ENIED

: L

IMITING

LACK

OMEN

EVALUED

ORK

(2011); see also Nina Banks, Black Women’s Labor Market History

Reveals Deep-Seated Race And Gender Discrimination, E

CON

. P

’

NSTITUTE

: W

ORKING

CON

. B

LOG

(Feb. 19, 2019), https://www.epi.org/blog/black-womens-labor-market-history-

reveals-deep-seated-race-and-gender-discrimination/; PHI, U.S. Home Care Workers: Key

Facts (2019), https://www.phinational.org/resource/u-s-home-care-workers-key-facts-2019/.

Fall 2023] Reclaiming Narratives 15

sector have been steered into these jobs by historical and structural

forces based in race, class, and gender subordination.

One such obvi-

ous example is care work in the healthcare industry. While paid care

work is still predominantly performed by women, “[w]omen of color

are concentrated in the most physically demanding direct care jobs

(nursing aide, licensed practical nurse, or home health aide), along

with the “back-room” jobs of cleaning and food preparation in hospi-

tals, schools, and nursing homes.”

Another vital example of care

work is childcare. The vast majority of home-based daycare owners

are also women. Data from California and Wisconsin is illustrative: (i)

98% of the home-based Family Childcare Center (FCC) owners in

California (surveyed from a representative sample) are women

and

(ii) 99.6% of the home-based family providers surveyed in Wisconsin

are women, with 21% being Black, “a share well above the state’s

Black population share of 6%.”

Despite being tracked into undervalued sectors, these entrepre-

neurs build businesses under these unlikely and stressful circum-

stances. You may find yourself thinking, these are workers, not

entrepreneurs! However, this is yet another fallacy of the hegemonic

narrative. These day care owners are entrepreneurs as Shane defines

entrepreneurs—they are taking on “the activity of organizing, manag-

ing, and assuming the risks of a business or enterprise.”

Numerous

entrepreneurs are self-employed and may even be the only full-time

employees of their enterprises.

They still pay taxes, provide impor-

tant goods or services, and contribute to their local economy and com-

munity. We should not erase their value merely because their scale is

Evelyn Nakano Glenn, From Servitude to Service Work: Historical Continuities in the

Racial Division of Paid Reproductive Labor, 18 S

IGNS

1–43 (1992), http://www.jstor.org/

stable/3174725 (discussing the historical development of reproductive labor that ultimately

results in the disproportionate representation of women of color in low-level reproductive

labor positions); see also Marina Zhavoronkova, Rose Khattar & Mathew Brady, Occupa-

tion Segregation in America, C

FOR

. P

ROGRESS

(Mar. 29, 2022), https://

www.americanprogress.org/article/occupational-segregation-in-america/.

Janet Dill & Mignon Duffy, Structural Racism and Black Women’s Employment in

the US Health Care Sector, 41 H

EALTH

FFAIRS

265 (2022), https://www.healthaffairs.org/

doi/10.1377/hlthaff.2021.01400.

Anna Powell, Elena Montoya & Yoonjeon Kim, Demographics of the California

ECE Workforce, C

FOR

TUDY OF

HILD

ARE

. (Jan. 13, 2022), https://

cscce.berkeley.edu/publications/data-snapshot/demographics-of-the-california-ece-

workforce/.

Leah Awkward-Rich, Ceri Jenkins & Laura Dresser, Wisconsin’s Early Care and Ed-

ucation Workforce: Summary Report on the Survey of Family Providers, W

. D

EPT

. C

HIL-

DREN

& F

AMILIES

4–5 (Sept. 2021), https://dcf.wisconsin.gov/files/childcare/pdf/pdg/wi-ece-

workforce-family-provider-report.pdf.

HANE

, supra note 9, at 2.

See supra note 24 and accompanying text.

16 CLINICAL LAW REVIEW [Vol. 30:7

different from Sam Walton

or Nipsey Hussle.

Likewise, many of

these entrepreneurs also qualify as “necessity entrepreneurs.” Neces-

sity entrepreneurship refers to individuals who enter self-employment

or entrepreneurship “due to low income, lack of job opportunities,

and limited government support.”

Often necessity entrepreneurs

are undervalued because their entrepreneurial activities do not gener-

ate large-scale economic gains or growth.

Again, erasing the value of these entrepreneurs results in the per-

petuation of harmful hegemonic norms and investment strategies. In-

vestment dollars and government programs are tracked towards

entrepreneurs and firms that will have a return on investment. Invari-

ably, these firms and entrepreneurs are not burdened by the same

race, class, gender, and class based systemic forces that have uplifted

certain individuals and communities. These recursive policies thus fo-

cus on luring new firms rather than investing in existing community

members in the name of entrepreneurship as economic development.

When we define success as “going public”

or achieving “uni-

corn”

status, we reinforce hegemonic norms, limiting entrepreneur-

ship to a certain privileged subset. Worse, by doing so, we erase the

labor and contributions of thousands of people. This is both culturally

and legally problematic. Erasure of marginalized entrepreneurs means

continuing to perpetuate harmful myths that work against the interest

of individuals and communities of color by continuing to ignore and

devalue them. Additionally, it prevents any large-scale law reform or

creative lawyering because by ignoring their stories, we ignore the

problems, barriers, and challenges raised by the experiences of these

entrepreneurs.

Richard S. Tedlow, Sam Walton: Great From the Start, H

ARV

. B

. S

CHOOL

: W

ORK-

ING

NOWLEDGE

APERS

(July 23, 2001), https://hbswk.hbs.edu/item/sam-walton-great-

from-the-start.

Julian Mitchell, The Art of Being Self-Made: A Conversation with Nipsey Hussle,

ORBES

(Mar. 1, 2018), https://www.forbes.com/sites/julianmitchell/2018/03/01/the-art-of-

being-self-made-a-conversation-with-nipsey-hussle/?sh=232c9d55a07f.

Laura Serviere, Forced to Entrepreneurship: Modeling the Factors Behind Necessity

Entrepreneurship, 22 J. B

. & E

NTREPRENEURSHIP

37, 41 (2010).

Priya Baskaran, Respect the Hustle: Necessity Entrepreneurship, Returning Citizens,

and Social Enterprise Strategies, 78 M

. L. R

. 323, 344–347 (2019).

“Going public” refers to selling shares to the public as a means of raising funds. This

is commonly connected to an Initial Public Offering (IPO). See Richard A. Mann, Michael

O’Sullivan, Larry Robbins & Barry S. Roberts, Starting from Scratch: A Lawyer’s Guide to

Representing A Start-Up Company, 56 A

. L. R

. 773, 828–29 (2004).

Lynnise E. Pantin, Race and Equity in the Age of Unicorns, 72 H

ASTINGS

L. J. 1453,

1455 (2021) (noting that “unicorn” status refers to an enterprise receiving a one billion

dollar valuation on the private market).

Fall 2023] Reclaiming Narratives 17

3. Importance of Counternarratives for Excluded Entrepreneurs

In contrast, an inclusive definition of entrepreneurship unveils

persistent structural and systemic forces that engender necessity en-

trepreneurship. We give voice to excluded, impacted entrepreneurs.

Richard Delgado and other critical race theorists emphasize the dan-

gers of narratives in “silencing” divergent views and experiences.

The act of silencing is a type of racial gaslighting—leaving marginal-

ized communities to “suffer in silence” and isolation.

Counternarra-

tives are a beneficial tool to positively impact both individual

entrepreneurs and usher in systemic reforms.

By giving voice to the

voiceless, counternarratives can act as a means of healing—allowing

excluded entrepreneurs to reclaim their narratives and value. Addi-

tionally, it forces the rest of us to listen. The counternarrative provides

alternative evidence, facts, and theories to explain exclusion and agi-

tate for a “paradigm shift.”

We understand that the mountain of sys-

temic and historic barriers make entrepreneurship a necessity for

many. We understand the limits of entrepreneurship in the absences

of social safety nets like housing, healthcare, and public education.

We are forced to acknowledge that—much like interest—injustice

compounds.

B. The Costs of Exclusion to Attorneys

1. Attorney-Client Relationship

The dominant narrative of entrepreneurship—the white, male,

cisgender, neurotypical, tech entrepreneur—is harmful not only to the

ELGADO

& S

TEFANIC

, supra note 18, at 49.

Id.

Melissa Hauber-Ozer, Meagan Call-Cummings, Sharrell Hassell-Goodman & Elisa-

beth Chan, Counter-Storytelling: Toward a Critical Race Praxis for Participatory Action

Research, 36 I

’

J. Q

UAL

. S

TUD

DUC

. 1175–1190 (2023) (noting that CRT-based

storytelling “can help to surface and communicate experiential knowledge of oppression”

and be used to advocate for meaningful social change), https://doi.org/10.1080/

09518398.2021.1930252.

ELGADO

& S

TEFANIC

, supra note 18, at 50.

For a full discussion of common criticisms of entrepreneurship as an effective strat-

egy, see generally Rashmi Dyal-Chand & James V. Rowan, Developing Capabilities, Not

Entrepreneurs: A New Theory for Community Economic Development, 42 H

OFSTRA

. 839, 843 (2014) (exploring the failures of entrepreneurship initiatives in benefitting

low-income individuals and in creating “widespread and reliable local economic develop-

ment and poverty relief”); Pantin, supra note 1 (summarizing the structural barriers that

have prevented black-owned businesses from competing successfully in the American mar-

ket). For a historical overview of entrepreneurial endeavors, see generally Robert W. Fair-

lie & Alicia M. Robb, Why Are Black-Owned Businesses Less Successful Than White-

Owned Businesses? The Role of Families, Inheritances, and Business Human Capital, 25 J.

. E

CON

. 289 (2007); W. Sherman Rogers, The Black Quest for Economic Liberty: Le-

gal, Historical, and Related Considerations, 48 H

. L.J. 1 (2004).

18 CLINICAL LAW REVIEW [Vol. 30:7

entrepreneur, but also to the attorney-client relationship in the trans-

actional legal clinic. We have seen the disappointment time and time

again on the face of a law student who holds assumptions about entre-

preneurship yet finds themselves sitting across the table from a clinic

client who does not fit the dominant narrative. Clients who, for exam-

ple, are selling packages of used clothing to the families of returning

citizens so that they can have clean clothes to wear home when they

are released from prison. Or clients who want to organize a worker

cooperative among several cleaning crews to improve the female own-

ers’ personal safety and financial security. In our collective experi-

ence, we see law students entering our clinics with some version of the

dominant narrative of entrepreneurship in their minds. They do not

necessarily think that they will represent the next Steve Jobs, but they

tend to expect a college-educated client who is a natural-born leader,

charismatic, and confident. They expect a client with a fully-formed

business plan. But as Shane points out “there’s no good evidence that

new businesses founded by people with these characteristics perform

any better than other start-ups. Believing these myths might focus

your attention on the very things that you shouldn’t spend your time

on.”

The reality of our clinic clients is much messier than students an-

ticipate. There is no fully-formed business plan with a market analysis

and financial projections. Usually, there is no business plan at all! Fur-

thermore, the client is likely already to have begun operating without

any business entity formed or regulatory filings. The business may be

the client’s “side hustle” to supplement their existing low-wage job.

Students experience some cognitive dissonance as they process their

assumptions versus reality in their client interviews. Successful clinic

students are able to reflect on their assumptions, pivot, and serve their

client using client-centered lawyering. For some students, this pivot

takes more time—and maybe the entire semester—including partici-

pation in structured reflections and clinic rounds. We have had stu-

dents doubt their client’s ability to start and run a successful business,

largely based on how differently their client presents themselves

against the dominant narrative of entrepreneurship.

This cognitive dissonance conveyed as doubt certainly affects the

attorney-client relationship. Here, an illustration may help. Two stu-

dents in one of our clinics became incredibly focused on the client’s

bottom line. They set as the goal for the client that their business

would be profitable in five years. During clinic rounds, it became ap-

parent that this goal was set by the clinic students, not the client. In-

HANE

, supra note 9, at 5.

Fall 2023] Reclaiming Narratives 19

deed, the client was building a social enterprise—a double-bottom line

business—and cared equally about their social mission and financial

success. The client was also from a background that does not fit the

dominant or data-driven narrative of who an entrepreneur is. Clinic

rounds were used to identify this dissonance between the clinic stu-

dents’ goals for the client and the client’s actual goals. Some of the

clinic rounds discussion delved into the identity of the client—particu-

larly their neurodivergence and personal reasons for starting their

business. The students were then able to shift how they approached

their representation of the client to become student lawyers in service

of their actual client, rather than an archetype.

2. Creative Lawyering & Law Reform

Counternarratives are essential for creative lawyering. The indus-

try standard dictates the structure, tools, and defaults needed to best

serve the dominant actors and power players in an entrepreneurial

ecosystem.

Marginalized, underrepresented, and ignored entrepre-

neurs must create their own creative solutions—legal and non-legal—

to navigate a world designed for other interests.

In our experiences, entrepreneurs are particularly creative when

it comes to raising capital and finding other resources for their enter-

prises. For example, many underrepresented entrepreneurs must be

extremely innovative when procuring funds to build or grow their bus-

iness. The standard sources include financial institutions like banks,

self-financing, outside investors, and crowdfunding.

Each of these

mechanisms has its own shortcomings, but we limit our discussion in

this essay to the two leading forms of capital for our clinic clients—

financial institutions and self-financing. Financial institutions may re-

quire a certain credit score, personal guarantees, or collateral that

may make it impossible for many entrepreneurs to secure financing.

Furthermore, Black communities and households are often histori-

cally devalued, impacting the worth of any collateral they may pos-

Renee Hatcher, Solidarity Economy Lawyering, 8 T

ENN

. J. R

ACE

, G

ENDER

& S

UST

. 24, 35 (2019) (“The current statutory framework is largely designed to regulate ad-

verse self-interests of economic actors in the mainstream economy, like the employer/em-

ployee, landlord/tenant, and producer/consumer relationship. As such, our laws often fail

to account for the diverse economic arrangements.”).

See, e.g., Alicia E. Plerhoples, The Promise of Social Enterprise for Poor Communi-

ties, in T

AMBRIDGE

ANDBOOK OF

OCIAL

NTERPRISE

(Benjamin Means &

Joseph W. Yockey eds., 2018) (making the case for social entrepreneurship as a creative

and superior form of enterprise for economic development in marginalized communities in

order to build and retain wealth within such communities and prevent gentrification.).

EORGE

W. K

UNEY

& B

RIAN

K. K

RUMM

, T

NTREPRENEURIAL

LINIC

ANDBOOK

, Chapter 5 (2013).

Id.

20 CLINICAL LAW REVIEW [Vol. 30:7

sess.

Self-financing, sometimes also called bootstrapping

, has

similar limitations. An entrepreneur’s ability to self-finance is directly

linked to their personal assets and those of their personal networks.

The legacy of racism in the United States has led to a racial wealth

gap,

which in turn makes it exceedingly difficult for Black entrepre-

neurs to self-finance.

Their homes, credit, savings, and those of their

friends have been systemically and intentionally undervalued by pub-

lic and private actors.

When the inputs needed to run your business

are difficult to access because of capital shortages, entrepreneurs get

creative.

Marginalized enterprises may explore resource sharing, bartering,

ICTOR

WANG

, S

AMEEKSHA

ESAI

& R

OSS

AIRD

, K

AUFFMAN

OUND

., A

CCESS

APITAL FOR

NTREPRENEURS

: R

EMOVING

ARRIERS

10-14 (2019) (indicating that

studies have shown bias in lending practices and their impact on Black businesses), https://

www.kauffman.org/wp-content/uploads/2019/12/CapitalReport_042519.pdf; see also Gene

Marks, Black-Owned Firms Are Twice As Likely To Be Rejected For Loans. Is This Dis-

crimination? G

UARDIAN

(Jan. 16, 2020), https://www.theguardian.com/business/2020/jan/16

/black-owned-firms-are-twice-as-likely-to-be-rejected-for-loans-is-this-discrimination.

Likewise, much has been written on the historic devaluation of assets in Black communi-

ties. See, e.g., Jonathan Rothwell & Andrew M. Perry, Biased Appraisals and the Devalua-

tion of Housing in Black Neighborhoods, B

ROOKINGS

(Nov. 17, 2021), https://

www.brookings.edu/research/biased-appraisals-and-the-devaluation-of-housing-in-black-

neighborhoods.

Elizabeth Pollman, Startup Governance 168 U. P

. L. R

. 155, 170 (2019) (noting

“founders often ‘bootstrap’ the business using their own funds, and those of family and

friends, to finance development efforts and early operations.”).

Pantin, supra note 1, at 443 (defining the friends and family round of investing).

The racial wealth gap refers to disparities in economic security along racial lines in

the Unites States. It refers to both the intergenerational transfer of wealth and the value of

assets owned by a household. Benjamin Harris & Sydney Schreiner Wertz, Racial Differ-

ences in Economic Security: The Racial Wealth Gap, U.S. D

’

REASURY

(Sept. 15,

2022), https://home.treasury.gov/news/featured-stories/racial-differences-economic-security

-racial-wealth-gap#:~:text=Several%20key%20contributors%20to%20the,accumulation

%20of%20wealth%20over%20time. At its core, the racial wealth gap displays inequality

compounded over time, manifesting in very real poverty and continued exclusion based on

race. The American racial wealth gap is the combined legacy of Jim Crow and extractive,

racialized capitalism writ large. For a discussion of the connection between the en-

trepreneurial eco-system and racial wealth gap, see Pantin, supra note 53, at 1496–97. This

should not be confused with income inequality, which refers to disparities in individual

income. Although this too has a major negative impact across lines of race and gender, the

racial wealth gap is a far bleaker indicator of inequality.

Phillip Gaskin & Demetric Duckett, Leveraging Entrepreneurship to Close Racial

Wealth Gaps, K

AUFFMAN

OUND

. C

URRENTS

LOG

(Oct. 20, 2020), https://

www.kauffman.org/currents/leveraging-entrepreneurship-to-close-racial-wealth-gaps-liv-

ing-cities/.

For a riveting discussion of the private sector manipulations to undervalue certain

communities through the municipal bond market, see D

ESTIN

ENKINS

, T

ONDS OF

NEQUALITY

: D

EBT AND THE

AKING OF THE

MERICAN

ITY

(2022). For a discussion of

the role of redlining as an extractive and racially-motivated federal policy, see Priya Bas-

karan, Thirsty Places, 2021 U

TAH

L. R

. 501, 511–541 (2021); R

OTHSTEIN

, supra note 28.

Fall 2023] Reclaiming Narratives 21

time-sharing, and other creative, low-cost, sustainable techniques.

addition to the practical and operational considerations, many entre-

preneurs are also motivated by the ethos behind these practices. Re-

source sharing is an act of collaboration and solidarity, not merely a

cost-effective solution in the moment.

As interest in the sharing

economy grows, so do the creative operational and legal solutions ac-

companying this new, non-traditional way of doing business.

This

poses an interesting problem for transactional lawyers. Relying on the

industry standard makes creative solutions impossible.

The industry

standard assumes enterprises have access to sufficient capital and re-

sources, thus a lack of these resources is indicative of a risky or un-

worthy venture. The industry standard fails to consider the systemic

forces that marginalize entrepreneurs; nor does it explore the merit

worthiness of the actual business plan or underlying concept. The

standard, built to exclude these types of enterprises, generally deter-

mines the venture is unsatisfactory based on the status quo. Thus law-

yering—in accordance with the industry standard—further

disenfranchises and erases marginalized entrepreneurs. It can also be-

come banal.

Navigating a bank loan, securitizing collateral, advising clients on

the risks—these are all important but standard deliverables for a

transactional attorney. The exciting work involves more novel and dy-

namic legal problem solving. For example, an early-stage venture may

seek assistance negotiating and drafting a resource-sharing agreement

with a community development corporation.

We are suddenly in un-

charted waters, with no templates or form documents, relying on our

research, critical thinking, and drafting skills to create agreements.

In addition to direct representation, law reform and legal advo-

cacy efforts are becoming an increasingly important core competency

for creative lawyers. Many entrepreneurs—particularly those operat-

ing in the social enterprise, solidarity economies, and community

spaces—need advocates who will help them challenge the law when it

is insufficient.

Only by listening to the experiences of entrepreneurs

For an illustration of this phenomenon with a hypothetical client, see Hatcher, supra

note 56, at 30.

Jenny Kassan & Janelle Orsi, The Legal Landscape of the Sharing Economy, 27 J.

NVTL

. L. & L

ITIG

. 1,15–17 (2012).

See Hatcher, supra note 56.

Id. at 31 (“[Sharing economy] lawyers must have a broad understanding of the full

range of legal structures. Otherwise, the tendency may be to propose those structures with

which they are most familiar, leaving other potential options unexplored.”

This scenario is adapted from a client matter. For examples of similar situations, see

ANELLE

RSI

, P

RACTICING

AW IN THE

HARING

CONOMY

(2012).

Hatcher, supra note 56, at 25 (noting the important role of lawyers as outdated legal

regimes are “ill suited for these new types of enterprise. So, while solidarity economy prac-

22 CLINICAL LAW REVIEW [Vol. 30:7

and understanding how the law fails them can we work towards

reform.

An important example of this work is the Community Enterprise

& Solidarity Economies Law Clinic at the University of Illinois Chi-

cago Law School.

The Community Enterprise & Solidarity Econo-

mies Law Clinic “focuses specifically on helping people build

community enterprises—worker-owned cooperatives, non-profits, or

small businesses that operate for the benefit of an underserved com-

munity.”

The clinic provides much needed legal expertise in the vari-

ous legal systems enterprises must navigate. In particular, social

enterprises immersed in the solidarity economy require guidance on

traditional substantive areas—employment law, securities law, intel-

lectual property, tax law, etc. However, as Professor Renee Hatcher

notes—lawyers engaged in this work must interface with “a wide

range of legal issues far beyond these traditional bodies of business

law.”

This places such lawyers in an important and novel role. As

attorneys working with social enterprises are “well positioned to iden-

tify the insufficiencies of the law,” they can advocate for reforms that

better serve their clients.

As part of their law reform and creative lawyering efforts, the

Community Enterprise & Solidarity Economies Law Clinic joined lo-

cal coalitions to advocate for the creation of a new entity structure

suitable for worker cooperatives.

An early pain point for many en-

terprises pursuing worker cooperative models was an outdated and

unclear state statutory regime. The existing statutory vehicle—the Illi-

nois Co-operative Corporation Act

—was created to serve producer

and consumer cooperatives.

Worker cooperatives in Chicago faced

titioners are reimagining the economy and means of economic exchange, solidarity econ-

omy lawyers are attempting to reimagine the law to reflect the needs of their clients.”)

Id.

Community Enterprise & Solidarity Economy Clinic, U

NIV

. I

. C

., https://

law.uic.edu/experiential-education/clinics/community-enterprise/ (last visited Sept. 5,

2023).

Community Enterprise & Solidarity Economy Clinic - Clinic Brochure 2, U

NIV

. I

LLI-

NOIS

HICAGO

, https://uofi.app.box.com/s/zi55z2stog25hm2oojloqmuvu59ebe0p (last vis-

ited Sept. 5, 2023).

Hatcher, supra note 56, at 31.

Id.

A worker cooperative is a type of enterprise that prioritizes the interests of worker

owners over the interests of investors. These stated interests may be value driven as well as

economic. In this manner, the enterprise model operates very differently than standard

business entities, which traditionally prioritize the interest of investor. Worker Coopera-

tives may also subscribe to the core principles shared by all cooperatives. Priya Baskaran,

Introduction to Worker Cooperatives and Their Role in the Changing Economy, 24 J. A

OUSING

& C

OMM

. D

. L. 358 (2015).

805 Ill. Comp. Stat. 310 (2020).

LLINOIS

ORKER

OPERATIVE

LLIANCE AND THE

OHN

ARSHALL

Fall 2023] Reclaiming Narratives 23

numerous challenges when attempting to form under this inadequate

statutory regime. In particular, the law made it difficult to raise funds

from worker-owners without quickly conflicting with state securities

laws. Additionally, the existing statutory regime made it impossible to

attract outside investors, a common source of funding for small busi-

nesses.

Another hurdle was a lack of clarity between owners of a

cooperative enterprise and employees. Muddling these two distinct

categories of actor—owner and employee—carried tax consequences

and made it difficult for immigrant entrepreneurs to form or join co-

operative enterprises.

The Community Enterprise & Solidarity Economies Law Clinic

successfully advocated for the passage of the Limited Worker Cooper-

ative Association Act in Illinois.

The LWCA Act created a new en-

tity specifically designed for worker cooperatives. Among the benefits

of the new statute was an exemption to the Illinois Securities Law of

1953, making it easier to raise capital and add worker-owners.

The

statute also clearly delineated that worker-owners are not default em-

ployees.

This provision is particularly important for enterprises

where owners may have mixed and varied documentation statuses.

By engaging in much needed legislative advocacy, the Community En-

terprise & Solidarity Economies Law Clinic embodied the type of cre-

ative lawyering most needed by their clients. Rather than accepting

the status quo, the lawyers challenged an ineffective regime. The re-

sult was an important step in helping foster community based, wealth-

building enterprises that place underrepresented and marginalized en-

trepreneurs at the forefront.

CHOOL

USINESS

NTERPRISE

LINIC

, C

OOPERATION

HICAGO

: B

UILDING

HI-

CAGO

’

ORKER

OOPERATIVE

COSYSTEM

14 (2018) (on file with author).

Id. 12-14.

NIV

. C

HICAGO

LLINOIS

, Worker Cooperatives will now have their own corporate

entity in Illinois (June 7, 2019).

Pathway to a People’s Economy, Illinois Limited Worker Cooperative Act, P

EOPLES

CONOMY

ORG

(last visited Sept. 7, 2023).

805 I

. C

OMP

. S

TAT

. 317/70 (2020).

805 I

. C

OMP

. S

TAT

. 317/12(c) (2020).

La Risa Lynch, Worker Cooperatives Face Particular Challenges in Illinois, C

. R

(Oct. 17, 2018), https://www.chicagoreporter.com/worker-cooperatives-face-particular-

challenges-in-illinois/.

Pathway to a People’s Economy, Illinois Limited Worker Cooperative Act, P

EOPLES

CONOMY

ORG

, https://peopleseconomy.org/illinois-resolution/ (last visited Sept. 7, 2023).

(“To provide explicit recognition to worker cooperatives in Illinois. To provide more op-

portunity and structure for worker-owners to maintain control over their businesses, spe-

cifically for startup cooperative businesses in working class Black & Brown communities in

Chicago.”).

24 CLINICAL LAW REVIEW [Vol. 30:7

III. P

EDAGOGICAL

TRATEGIES

A. Storytelling – Alicia’s Clinic

How do the authors’ clinics break the hegemonic narrative of the

entrepreneur in an entrepreneurship clinic? With D.C.-specific data,

storytelling comparing dominant, data-driven, and alternative narra-

tives of entrepreneurship, and by representing clients that demon-

strate the diversity of entrepreneurship. The Social Enterprise &

Nonprofit Law Clinic (SENLC) introduces students to the dominant,

data-driven, and alternative narratives of entrepreneurship immedi-

ately. The first assignment for clinic orientation asks students to read a

few chapters in Scott Shane’s The Illusion of Entrepreneurship as well

as review the U.S. Small Business Administration’s data on small busi-

nesses in D.C. Students must then reflect, through written answers to

discussion questions, on their understanding of who becomes an en-

trepreneur in the United States versus who becomes a small business

owner in D.C. and to consider the reasons for the discrepancies. The

goal of this assignment is to orient students to D.C.’s demographics

and the likelihood—based on those demographics—that their client

will not be an upper-class white male, cisgender, neurotypical tech

entrepreneur.

For clinic orientation, students also listen to three episodes of the

well-known How I Built This (HIBT) podcast hosted by NPR’s Guy

Raz. The HIBT podcast features entrepreneurs who tell their stories

of the beginnings of their business or brand, what challenges they

overcame, and how their business ultimately became successful. The

HIBT podcast uses narrative told directly by an entrepreneur. Each

episode on the clinic’s syllabus presents a different perspective of

what it means to be an entrepreneur. One of the selected HIBT pod-

cast episodes highlights the founders of Luke’s Lobsters, one of whom

is Luke Holden, who was two years out of college and working as an

analyst at an investment firm when he wrote a business plan and

started selling lobster rolls in Manhattan. Luke started Luke’s Lob-

sters in 2009 with $30,000, of which 50% came from his own savings

and 50% came from his father who owned a seafood company in

Maine.

The second podcast that clinic students listen to features Wendy

Knopp, founder of Teach for America (TFA), a charitable organiza-

tion. Wendy conceived the idea of TFA as her senior thesis at

Princeton University. After graduating, she worked on TFA full

How I Built This With Guy Raz, Live Episode! Luke’s Lobsters: Luke Holden and

Ben Conniff, NPR (Nov. 7, 2019), https://www.npr.org/2019/11/06/776829547/live-episode-

lukes-lobster-luke-holden-and-ben-conniff.

Fall 2023] Reclaiming Narratives 25

time.

Finally, the third podcast that students listen to highlights

Daymond John, founder of the clothing company FUBU. Daymond

John did not go to college; after high school, he waited tables at Red

Lobster as he started FUBU.

Students listen to these podcasts and in

class we discuss each narrative—what were the keys to each entrepre-

neur’s success and who supported them financially, creatively, reputa-

tionally, or otherwise? We pinpoint the similarities and differences in

each narrative—Luke Holden leased a space for his restaurant while

Daymond John sold hats and T-shirts on a corner without a vendor’s

license. But both were able to leverage their parents’ monetary sup-

port—Luke Holden through his father’s cash investment from his re-

tirement account and Daymond John through his mother’s second

mortgage on their family home.

Wendy Knopp’s narrative does not indicate how she supported

herself financially while starting Teach for America but students have

plenty of opinions about the socio-economic status of a Princeton

graduate who has access to Ross Perot to pitch her ideas. When dis-

cussing Wendy Knopp’s story, we consider that not all entrepreneur-

ship results in a for-profit venture—nonprofit founders can be

entrepreneurial too. We discuss the legality and illegality of some of

the entrepreneurs’ actions while starting their businesses—Daymond

John once trespassed at a trade show to get his product in front of the

right buyers—and whether it’s likely or not that any of the entrepre-

neurs had lawyers as they were getting their businesses off the ground.

We discuss the race, class, and age of the entrepreneurs and how they

fit or do not fit into the dominant narrative, Shane’s data-driven nar-

rative, or the U.S. Small Business Administration’s data on who an

entrepreneur is.

This assignment and class discussion—done on the first day of

clinic orientation—begins our student lawyers down the path of ques-

tioning their assumptions about entrepreneurship. It puts the entre-

preneurs’ stories first in an attempt to shift students from thinking of

themselves as the center of the narrative (clients are the center of the

principal-agent client-attorney relationship). It also exposes students

to non-white, non-male, non-middle-to-upper class entrepreneurs and

broadens the idea of entrepreneurship to include nonprofits and other

forms of organizations. This assignment is not a panacea. The HIBT

podcasts still represent a small slice of the diversity of entrepreneur-

ship and we are constantly looking to improve this assignment with

How I Built This With Guy Raz, Teach for America: Wendy Knopp, NPR (July 8,

2019), https://www.npr.org/2019/07/05/738989797/teach-for-america-wendy-kopp.

How I Built This With Guy Raz, FUBU: Daymond John, NPR (Nov. 4, 2019), https://

www.npr.org/2019/11/01/775448775/fubu-daymond-john.

26 CLINICAL LAW REVIEW [Vol. 30:7

counternarratives—told in first person—that represent entrepreneurs

in other service industries such as home care work or home-based

child care work. Until then, this is a first step that we then build on

throughout the semester as students represent their clients.

B. Client Selection – Priya’s Clinic

The Entrepreneurship Law Clinic (ELC) at American Univer-

sity’s Washington College of Law is committed to serving the full

spectrum of D.C. small businesses and social enterprises. Some of the

most challenging and innovative legal work originated from our

micro-entrepreneurs, solo shops thinking creatively about building,

operating, and growing their enterprises. These entrepreneurs ap-

proached every obstacle with creativity and revolve, forcing students

to think critically and dynamically about possible solutions. The ELC

developed a relationship with the D.C. Small Business Development

Center (DCSBDC) based out of Howard University.

The DCSBDC

is committed to assisting entrepreneurs of all sizes, including many

nascent enterprises. Through our close collaboration, the ELC is di-

rectly connected with numerous early-stage businesses in need of a

variety of legal services. An important part of our current docket in-

cludes assisting self-employed entrepreneurs in the care-work space.

Here, we use care work to refer to general domestic work including

housekeeping, childcare, and elder care. These enterprises are often

unable to afford legal services despite operating in important and thus

heavily regulated sectors. Again, because of the demographics of D.C.

and the care-work industry, we represent many women of color entre-

preneurs. Our clients include doulas,

nannies, and elder-care

specialists.

Students interfacing with these clients have opportunities to draft

contracts for services in plain English and empower clients to advo-

cate for themselves. The immersive experience underscores the impor-

tance of lawyering for present and future transactions as students

build dynamic documents to grow with a client’s enterprise. Students

also confront, alongside their clients, the frustration of financing and

regulatory systems created for large scale enterprises. They commiser-

ate with clients who encounter limits due to financial constraints and

District of Columbia Small Business Development Center, D

CSBDC

ORG

, https://

dcsbdc.org/about-dcsbdc/ (last visited Sept. 9, 2023).

A “doula” is a trained professional who provides non-clinical physical, emotional,

and informational support to birthing parents, often with an emphasis on person-centered

care with particular sensitivity towards racial, ethnic, and cultural diversity considerations.

Maryland Department of Health, Medicaid Doula Program, M

ARYLAND

GOV

, https://

health.maryland.gov/mmcp/medicaid-mch-initiatives/Pages/DoulaProgram.aspx (last vis-

ited Sept. 7, 2023).

Fall 2023] Reclaiming Narratives 27

appreciate local government resources in Chocolate City

committed

to supporting and uplifting D.C.’s small businesses.

Although many law students come to the ELC in hopes of work-

ing on global transactions with multinational corporations, they leave

with a firm foundation in lawyering that exceeds their initial expecta-

tions. Certainly, the skills they acquire—drafting, research, time-man-

agement, interviewing, client counseling, and negotiation—is a huge

asset. However, it is their ability to engage in complex problem solv-

ing and analysis, coupled with embracing their role as advocates, that

has a profound and lasting impact. Working with these clients trans-

forms students from transactional mercenaries to client-centered at-

torneys, championing their clients’ enterprises one deal at a time.

ONCLUSION

This essay has documented the dominant and data-driven narra-

tives of entrepreneurship and used critical race theory to present

counter-narratives as well as explore the costs—to clients, communi-

ties, and attorneys—of exclusion of the true diversity of entrepreneur-

ship. In our clinics, we expand our law students’ conceptions of

entrepreneurship through narrative, case selection, in-class rounds,

and other pedagogical strategies so that they can employ more crea-

tive lawyering and problem solving as they represent their clients.

Washington, D.C., presents a diverse entrepreneurial environment to

engage in inclusive lawyering. Nonetheless, entrepreneurial diversity

exists everywhere—from rural farms that have agricultural or worker

cooperatives

to care-work and other types of necessity entrepre-

neurship. One can employ an inclusive definition of entrepreneur-

ship—and provide legal services and resources to an inclusive set of

entrepreneurs—in any locality in the United States. Lawyering to an

inclusive set of entrepreneurs helps break down structural and sys-

temic barriers to entrepreneurship and economic development and

growth for underrepresented communities.

* * *

Chocolate City is a nickname for Washington, D.C., referencing the city’s role as a

center for Black political power, culture, and art. See Megan McArdle, Goodbye, Choco-

late City, W

ASH

. P

OST

(Aug. 14, 2021), https://www.washingtonpost.com/opinions/2021/08/

14/goodbye-chocolate-city/.

For examples of worker cooperatives on farms, see Worker Co-op Farms, U.S. F

ORKER

OOPS

, https://www.usworker.coop/blog/tag/workercoopfarms/ (last visited Sept.

9, 2023).

ADVANCING RACIAL JUSTICE THROUGH

CIVIL AND CRIMINAL ACADEMIC

MEDICAL-LEGAL PARTNERSHIPS

AEL

AKAI

ANNON AND

IDA

OHNSON

The medical-legal partnership (MLP) model, which brings attor-

neys and healthcare partners together to remove legal barriers to health,

is a growing approach to addressing unmet civil legal needs. But MLPs

are less prevalent in criminal defense settings, where they also have the

potential to advance both health and legal justice. In fact, grave racial

health inequities are deeply intertwined with both civil and criminal in-

justice. In both spheres, health justice is racial justice. Building on the

experiences of the authors in their respective civil and criminal law

school clinics at Georgetown University in Washington, D.C., this Arti-

cle argues that academic medical-legal partnerships provide a unique

vehicle for advancing racial justice by training future leaders in law and

healthcare to understand, address, and dismantle intertwined health in-

equities and injustice across both civil and criminal legal systems.

I. I

NTRODUCTION

- H

EALTH

USTICE AS

ACIAL

USTICE

In Washington, D.C., life expectancy in the city’s predominantly

white Ward 3 is 87 years.

Less than fifteen miles south and east, in

Ward 8, which is majority Black, life expectancy is only 72 years, a full

fifteen years shorter.

Other racial health disparities abound in D.C.,

with higher rates of asthma, cancer, maternal mortality, and other

health conditions among Black Washingtonians.

The disparities experienced by Washingtonians behind bars are

compounded by additional environmental and structural threats to

their health. For every year in prison, life expectancy decreases by two

* Yael Zakai Cannon, Associate Professor of Law and Director, Health Justice Alli-

ance Law Clinic, Georgetown University Law Center and Vida Johnson, Associate Profes-

sor of Law and Director, Criminal Justice Clinic, Co-Director of E. Barret Prettyman

Fellowship Program, Georgetown University Law Center. This essay is part of the Promot-

ing Justice: Advancing Racial Equity Through Student Practice in Legal Clinics Symposium

at the Georgetown University Law Center. The authors would like to thank Sessen

Berhane, Julia Byrne, Ashlei Anderson, Tiffany Okeani, and Sierra Campbell for their

excellent research assistance.

HRISTOPHER

J. K

ING

& P

ATRICIA

LOONAN

, G

. U

NIV

., H

EALTH

ISPARITIES

LACK

OMMUNITY

: A

MPERATIVE

ACIAL

QUITY

ISTRICT

O-

LUMBIA

1 (2020).

Id.

30 CLINICAL LAW REVIEW [Vol. 30:29

years.

With Black people about five times more likely to be sen-

tenced to prison time than their white counterparts,

there can be no

justice without health. Health justice is racial justice.

Health inequities, like legal ones, are deeply connected to social,

structural, economic and political determinants of health. Research

shows that as much as 80% of health is not driven by biology or medi-

cal care, but by the “social determinants of health,” which are the con-

ditions in which people live, work, learn, eat, and age.

These

determinants of health are not just social, they are structural and po-

litical,

shaped by laws and policies deeply rooted in structural ra-

cism.

Racism itself harms health,

as do destructive conditions such

as unsafe housing and incarceration.

As a movement and scholarly framework, health justice requires

the leveraging of law and policy to dismantle subordination as a root

cause of health inequities.

Building on a vision of health equity in

which all people have a fair and equal opportunity to achieve health,

the term “justice” centers the importance of law in facilitating such

equity. For people to achieve health and well-being, law must be used

to ensure access to safe and affordable housing, healthy neighbor-

hoods free of environmental hazards, housing and food security, and

Christopher King, Bryan O. Buckley, Riya Maheshwari & Derek Griffith, Race,

Place, and Structural Racism: A Review of Health and History in Washington D.C., 41

HEALTH AFFS

. 273, 274 (2022).

Leah Wang, Punishment Beyond Prisons: Incarceration and Supervision by State,

PRISON POL

’

Y INITIATIVE

(

May 2023), https://www.prisonpolicy.org/reports/

correctionalcontrol2023.html.

Sheila Foster, Yael Cannon & Gregg Bloche, Health Justice Is Racial Justice: A Legal

Action Agenda for Health Disparities, H

EALTH

FFS

. B

LOG

(July 2, 2020), https://

www.healthaffairs.org/content/forefront/health-justice-racial-justice-legal-action-agenda-

health-disparities.

Social Determinants of Health, W

ORLD

EALTH

., https://www.who.int/health-

topics/social-determinants-of-health#tab=tab_1 (last visited May 25, 2023).

ANIEL

E. D

AWES

, T

OLITICAL

ETERMINANTS OF

EALTH

7 (2020).

Ruqaiijah Yearby, Structural Racism and Health Disparities: Reconfiguring the Social

Determinants of Health Framework to Include the Root Cause, 48 J.L. M

. & E

THICS

518,

518 (2020).

Id. at 518-19.

Katherine Beckett & Allison Goldberg, The Effects of Imprisonment in a Time of

Mass Incarceration, 51 C

RIME

& J

UST

. 349, 354-358 (2022); Thalia Gonz ´alez & Emma

Kaeser, Race, Public Health, and the Epidemic of Incarceration, 13 N

. L. R

. B

ULL

. 1,

2-4 (2022); Frank Griffin, Administering Housing Law as Health Care: Attorneys as Health-

care Providers, 71 S.C. L. R

. 349, 351, 355-356 (2019); Dayna Bowen Matthew, Health

and Housing: Altruistic Medicalization of America’s Affordability Crisis, 81 L

& C

ON-

TEMP

. P

ROBS

. 161, 166-167 (2018); Emily A. Benfer & Allyson E. Gold, There’s No Place

like Home: Reshaping Community Interventions and Policies to Eliminate Environmental

Hazards and Improve Population Health for Low-Income and Minority Communities, 11

ARV

. L & P

’

. O

NLINE

S1, S3 (2017).

Lindsay F. Wiley, Ruqaiijah Yearby, Brietta R. Clark & Seema Mohapatra, Introduc-

tion: What is Health Justice?, 50 J.L. M

. & E

THICS

636, 636 (2022).

Fall 2023] Civil and Criminal Medical-Legal Partnerships 31

freedom from police violence, surveillance, and incarceration. Ulti-

mately, health justice should engage the law and lawyers, as well as

their interdisciplinary partners, in building the power of individuals

and communities affected by health inequities “to create and sustain

conditions that support health and justice.”

Medical-legal partnerships (MLPs) advance health justice by inte-

grating lawyers onto healthcare teams to address legal needs that

harm health and to advance policy change to promote health equity.

Most MLPs, including academic MLPs situated in universities, focus

on civil justice issues that impact health, such as income, housing, utili-

ties, education, employment, immigration, and family law.

But crimi-

nal injustice also contributes to health injustice. The MLP model, and

the academic MLP in particular, can be used to advance racial and

health justice by addressing the many legal needs and harmful policies

that impact the health and well-being of people in the criminal legal

system. Academic MLPs are uniquely positioned to advance racial

justice by educating the next generation of lawyers and health profes-

sionals to understand and address the connections between structural

racism, health, criminalization, and incarceration. Health justice

crosses civil and criminal legal spheres, and academic MLPs can and

should work towards health justice on both fronts.

Building on the experiences of the authors in their respective law

school clinics at Georgetown University in Washington, D.C. and the

research supporting the critical connections between racial inequities

in both legal systems and health, this Article argues that academic

medical-legal partnerships (A-MLPs) provide an important vehicle for

training future attorneys, physicians, and other health professionals to

advance health and racial justice not only through civil legal advocacy,

but also through criminal legal advocacy. The Article offers specific

approaches that A-MLPs should adopt in order to meaningfully pro-

mote racial justice in both the civil and criminal spheres.

A. Civil Injustice and Racial Health Inequities

Many areas of civil injustice lead to racial health inequities. Hous-

ing injustice provides a powerful example. Historically, redlining and

restrictive covenants kept Black people and other people of color out

of many neighborhoods and segregated them into areas with environ-

Id.

Yael Zakai Cannon, Medical-Legal Partnership as a Model for Access to Justice, 75

TAN

. L. R

. O

NLINE

73, 74 (2023).

Kate Marple, Chart: How Legal Services Help the Health Care System Address Social

Needs, N

’

FOR

.-L

EGAL

. P’

SHIP

(Jan. 21, 2015), https://medical-legalpartner

ship.org/mlp-resources/messaging-chart/.

32 CLINICAL LAW REVIEW [Vol. 30:29

mental hazards and substandard housing conditions.

Housing dis-

crimination, zoning ordinances and policies that promote

gentrification continue to further these inequities in housing and

neighborhood conditions.

Evictions and homelessness also dispro-

portionately impact people of color.

These housing injustices result in health injustices.

For example,

mold, rodents, and roaches in a home exacerbate asthma and other

respiratory conditions.

Lead in peeling paint and water can lead to

brain damage and developmental delays for young children.

Evic-

tions harm the health and mental health of children and adults.

Even

the threat of eviction is a powerful stressor that impacts health and

well-being.

Homelessness is tied to lower life expectancy and a num-

ber of health and mental health conditions, and can lead to traumatic

experiences for children that are linked to long-term health harms.

In Washington, D.C., racial inequities in housing that impact

health abound. Black residents are overrepresented in the population

of unhoused Washingtonians, making up 86.4 percent of this group,

while representing only 46.6 percent of the District’s population.

The rate of both eviction filings and executed evictions is substantially

higher in Wards 7 and 8, which are wards with the largest share of

Black residents and the highest poverty rates in the city.

In contrast,

the wards with the lowest filing rate – Wards 2 and 3 – had among the

lowest poverty rates and the smallest share of Black residents in the

Foster et al., supra note 6.

See id.; B

RUCE

ITCHELL

& J

UAN

RANCO

, NCRC, HOLC “R

EDLINING

” M

APS

ERSISTENT

TRUCTURE OF

EGREGATION AND

CONOMIC

NEQUALITY

(2018).

Foster et al., supra note 6.

Ericka Petersen, Building a House for Gideon: The Right to Counsel in Evictions, 16

TAN

. J. C. R. & C. L. 63, 68–69 (2020); Yael Cannon, Injustice is an Underlying Condition,

6 U. P

. J.L. & P

. A

FFS

. 201, 240–41 (2020).

Emily A. Benfer & Lindsay F. Wiley, Health Justice Strategies to Combat COVID-19:

Protecting Vulnerable Communities During A Pandemic, H

EALTH

FFS

. B

LOG

(Mar. 19,

2020), https://www.healthaffairs.org/do/10.1377/hblog20200319.757883/full/ (“Low-income

people are more likely to live in homes with poor air quality, mold, asbestos, lead, pest-

infections, and inadequate space to separate the sick from the well. . . . which have all been

linked to poorer health outcomes.”); Cannon, supra note 19, at 250.

Emily A. Benfer, Health Justice: A Framework (and Call to Action) for the Elimina-

tion of Health Inequity and Social Injustice, 65 A

. U. L. R

. 275, 294–95 (2015); Cannon,

supra note 19, at 245.

Petersen, supra note 19, at 69; Cannon, supra note 19, at 242.

Cannon, supra note 19 (2020), at 241–42.

Allyson E. Gold, No Home for Justice: How Eviction Perpetuates Health Inequity

among Low-Income and Minority Tenants, 24 G

. J.

OVERTY

L. & P

’

59, 61

(2016); Cannon, supra note 19 at 240–41.

Kate Akalonu, Homelessness & Racial Inequity, E

VERYONE

OME

DC (June 11,

2020), https://everyonehomedc.org/homelessness-racial-inequity/.

OSEN

& B

RIAN

ABE

, G

. U

NIV

., E

VICTION IN

ASHINGTON

, DC: R

A-

CIAL AND

EOGRAPHIC

ISPARITIES IN

OUSING

NSTABILITY

14 (2020).

Fall 2023] Civil and Criminal Medical-Legal Partnerships 33

city.

The city also has significant disparities in home ownership. Al-

though higher education is typically tied to higher incomes which

should make homeownership more attainable, in 2016, 80 percent of

white D.C. residents with a high school diploma or less were home-

owners, while less than 45 percent of all Black D.C. residents, regard-

less of their educational attainment, were homeowners.

Homeownership is associated with fewer health conditions and im-

proved psychological health; the connection between homeownership

and health outcomes for members of racial minority groups, however,

may be mitigated by the ongoing effects of structural racism and racial

biases.

Housing inequality and the legacy of redlining also present obsta-

cles to access to healthcare for minoritized communities and people

with low-income. Over the past two decades in Washington D.C., sev-

eral hospitals that historically served communities of color have shut

down essential healthcare services or closed down altogether.

For

example, in 2001, District of Columbia General Hospital, which was

known for its culturally nuanced care and medical education, closed

its inpatient services and trauma wards.

United Medical Center

(UMC), the only hospital in the predominantly Black wards east of

the Anacostia River, recently ended many of its services, including a

nursing facility and obstetrics ward, with plans to close the hospital by

the end of 2023.

The closing of these hospitals serving majority

Black communities in neighborhoods that are functionally medical

deserts created even more obstacles for families with low income to

access adequate primary care, emergency services, and prenatal

care,

and exacerbated health inequities in Washington, D.C., such as

Id.

ILOLO

IJAKAZI

, R

ACHEL

ARIE

ROOKS

TKINS

, M

ARK

AUL

, A

NNE

RICE

ARRICK

AMILTON

& W

ILLIAM

A. D

ARITY

, J

., U

. I

NST

., T

OLOR OF

EALTH IN

THE

ATION

’

APITAL

7 (2016).

See Selena E. Ortiz & Frederick J. Zimmerman, Race/Ethnicity and the Relationship

Between Homeownership and Health, 103 A

. J. P

. H

EALTH

e122, e127 (2013).

See King et al., supra note 4 (discussing the influence of structural racism on health

outcomes).

See id. at 277 (explaining that D.C. General Hospital was known for its culturally

nuanced care in providing inpatient and trauma for over 200 years in Washington D.C.

before closing down. The hospital was a “medical home for the disenfranchised, low in-

come, and uninsured”).

See id. at 278 (explaining that the closures were the result of a confluence of factors

including an “[i]nability to compete with more attractive and centralized medical

establishments’’).

See id. (stating that the absence of prenatal services east of the Anacostia River

creates “another obstacle in a citywide effort to reduce high rates of infant and maternal

mortality [in Washington D.C.]”).

34 CLINICAL LAW REVIEW [Vol. 30:29

grave racial disparities in maternal and infant mortality.

Food and income insecurity are also key social determinants of

health connected to civil injustice.

Income insecurity means that

some Americans must choose between buying food or paying other

essential bills, such as rent and utilities, leading to dangerous and un-

healthy phenomena that have been described as “heat or eat” or “the

rent eats first.”

Lack of nutritious food leads to a number of health

concerns including “obesity, low birthrate, iron deficiency, and devel-

opmental problems including aggression, anxiety, depression, and at-

tention deficit disorder.”

According to the D.C. Policy Center, 11%

of D.C. is in a food desert, with higher rates in the city’s predomi-

nantly Black wards (51% of food deserts are located in Ward 8 and

31% in Ward 7).

Consequently, Wards 7 and 8 only have four gro-

cery stores in their entire 17.1 square mile area.

In comparison, the

predominantly white Ward 3 of D.C. has zero food deserts.

Moreo-

ver, 29.3% of Latinx households with children and 21% of Black

households with children reported food insufficiency in April 2021.

In contrast, white households with children reported statistically no

food insufficiency in April 2021.

Income inequality is also a significant issue in Washington, D.C.,

where the median household income for white residents is $141,650,

See id. (explaining that the absence of prenatal services east of the Anacostia River

creates “another obstacle in a citywide effort to reduce high rates of infant and maternal

mortality”).

Maureen Black, Household Food Insecurities: Threats to Children’s Well-Being, A

SYCH

. A

’

(June 2012), https://www.apa.org/pi/ses/resources/indicator/2012/06/house

hold-food-insecurities; Cannon, supra note 19 at 219–20 (2020).

See Petersen, supra note 19, at 70 (“Soaring rents lead most low-income tenants to

spend over half of their income on rent, leading to excruciating budget choices and the

inability to afford other basic necessities, such as electricity, water, food, and medicine. As

a result, these low-income tenants frequently sacrifice food, medical care, and medications

to pay rent.”); Cannon, supra note 19, at 219–20 (“Food insecurity has cascading effects for

low-income Americans; it can force a choice between buying food or paying rent and other

important bills, such as utilities payments. This choice, sometimes called “heat or eat,” is

impossible because people need all of these necessities to thrive.”).

Cannon, supra note 19, at 219–20; Food Insecurity, H

EALTHY

EOPLE

2030, https://

health.gov/healthypeople/priority-areas/social-determinants-health/literature-summaries/

food-insecurity (last visited Sept. 5, 2023); Maureen Black, Household Food Insecurities:

Threats to Children’s Well-Being, A

. P

SYCH

. A

’

(June 2012), https://www.apa.org/pi/

ses/resources/indicator/2012/06/household-food-insecurities.

Daniel Ashat, Nicole Tepper & Caroline Pawlow, An Evaluation of Food Insecurity

in the D.C. Community, 2 G

. S

. R

SCH

. J. 78, 80 (2022).

Id.

D.C. O

LAN

. & D.C. F

OOD

’

OUNCIL

, T

OAD

HEAD

: 2021 U

P-

DATE ON

OOD

CCESS

& F

OOD

ECURITY IN THE

ISTRICT OF

OLUMBIA

3 (2021).

Id.

Fall 2023] Civil and Criminal Medical-Legal Partnerships 35

over three times higher than that of Black residents at $45,072.

Fur-

thermore, Black residents are nearly two times as likely to be rent-

burdened, meaning that housing costs cut into 30% or more of a

household’s income.

When compared with all racial and ethnic

groups, the percent of Black families in poverty is highest at 22%.

Unemployment percentages are highest in Wards with the highest

proportions of Black residents: Ward 5 (6.9%), Ward 7 (9.7%), and

Ward 8 (12.5%).

Black residents are also more likely to work in production, ser-

vice and sales industries that require manual labor, pay lower wages,

and have fewer benefits such as health insurance, paid leave, and re-

tirement plans.

Because over 50 percent of service occupations are

held by Black residents, Black residents were disproportionately nega-

tively affected by the restricted activity and closure of restaurant and

tourism industries during the COVID-19 pandemic.

Educational injustices are also drivers of poor health.

Gradua-

tion rates are lower for people of color, especially people of color with

disabilities,

and whether a person graduates high school is a strong

predictor of lifelong health.

School policing, exclusionary school dis-

cipline, and the school-to-prison pipeline, all disproportionately im-

pact Black students, indigenous students, and other students of color,

and all harm the health, mental health, and well-being of students.

Camille Busette & Samantha Elizondo, Economic disparities in the Washington, D.C.

metro region provide opportunities for policy action, B

ROOKINGS

NST

. (Apr. 27, 2022),

https://www.brookings.edu/blog/how-we-rise/2022/04/27/economic-disparities-in-the-wash-

ington-d-c-metro-region-provide-opportunities-for-policy-action/.

Id.

ING

& C

LOONAN

, supra note 1, at 10.

Id.

D.C. Racial Equity Profile for Economic Outcomes, D.C. P

’

ENTER

(Jan. 2021),

https://static1.squarespace.com/static/5ffa2eb4a24aef1e5b91c0d6/t/607df46d185dd55abe

40f644/1618867332939/.

Id.

Yael Cannon & Nicole Tuchinda, Critical Perspectives to Advance Educational Eq-

uity and Health Justice, 50 J.L. M

. & E

THICS

776, 778 (2022); Cf. Thalia Gonz ´alez &

Paige Joki, Discipline Outside the Schoolhouse Doors: Anti-Black Racism and the Exclu-

sion of Black Caregivers, 70 UCLA L. R

. D

ISCOURSE

40, 42 (2022) (asserting that criti-

cal race theory is a “powerful framework in the domain of education justice”).

Cannon & Tuchinda, supra note 49 at 780 (2022); N

’

FOR

DUC

. S

TATS

TUDENTS WITH

ISABILITIES

6 (2023), https://nces.ed.gov/programs/coe/pdf/2023/

cgg_508.pdf.

Cannon & Tuchinda, supra note 49 at 777; S. Jay Olshansky et al., Differences in Life

Expectancy Due to Race and Educational Differences Widening, and Many May Not Catch

Up, 31 H

EALTH

FFS

. 1803, 1806–07 (2012).

Cannon & Tuchinda, supra note 49 at 777;Thalia Gonz´alez, Race, School Policing,

and Public Health, 73 S

TAN

. L. R

. O

NLINE

180, 180 (2021) (“[S]chool policing is an

obvious public health issue. It sits at the nexus of two critical social determinants of health

— education and racism—and requires targeted attention as such.”).

36 CLINICAL LAW REVIEW [Vol. 30:29

In Washington, D.C., Black students make up 66% of the charter

and traditional public school student population, but receive 82% of

in-school suspensions, 90% of out-of-school suspensions, and 95% of

expulsions.

Only 74% of Black students and 68% of Latinx students

graduate high school in four years, compared to 94% of white stu-

dents.

When compared with all other races and ethnicities, non-His-

panic Black residents had the lowest percentage (31.1%) of bachelor’s

degree attainment at age twenty-five and older in Washington, D.C.

between 2017 to 2021.

These racial inequities are not limited to Washington, D.C., but

are evident around the nation, and all are impacted by law and policy,

such as laws in the areas of housing, public benefits, employment, and

education.

Rectifying these inequities requires the intentional and

active pursuit of health justice and the training of future lawyers and

health professionals to that end. Racial justice and health justice,

which are intertwined, necessitate housing justice, economic justice,

educational justice, and other forms of civil justice.

B. Criminal Injustice and Racial Health Inequities

Like our civil legal systems, our criminal legal system contributes

to ill-health and other life-threatening racial injustice. America is the

most criminally punitive and carceral of any other wealthy nation.

Our poor carceral medical system, the structural and social determi-

nants of health, and the punitive harms of the American criminal legal

system compound the problems of the other. These American failures

hurt people of color most of all, having also been more likely to be

subjected to the civil injustices described in the section above.

Ad-

Education, DC K

IDS

OUNT

, https://dckidscount.org/education/ (last visited Sept. 5,

2023).

Id.

People 25+ with a Bachelor’s Degree or Higher, D.C. H

EALTH

ATTERS

, https://

www.dchealthmatters.org/indicators/index/view?indicatorId=340&localeId=130951&locale

ChartIdxs=1%7C2%7C4. (last updated Feb. 2023).

See generally D

AYNA

OWEN

ATTHEW

, J

UST

EALTH

: T

REATING

TRUCTURAL

ACISM TO

EAL

MERICA

(2022); see also Sally Magnan, Social Determinants of Health

101 for Health Care: Five Plus Five, N

’

. A

CAD

. M

. P

ERSP

. 1, 1 (Oct. 9, 2017), https://

nam.edu/wp-content/uploads/2017/10/Social-Determinants-of-Health-101.pdf; Yael Can-

non, Closing the Health Justice Gap: Access to Justice in Furtherance of Health Equity, 53

OLUM

. H

. R

GTS

. L. R

. 517, 523 (2022).

See Foster et al., supra note 6.

See, e.g., Wendy Sawyer & Peter Wagner, Mass Incarceration: The Whole Pie 2023,

RISON

’

NITIATIVE

(Mar. 14, 2023), https://www.prisonpolicy.org/reports/

pie2023.html.

See E

LIZABETH

INTON

, L

HAE

ENDERSON

& C

INDY

EED

., V

ERA

NST

UST

., A

NJUST

URDEN

: T

ISPARATE

REATMENT OF

LACK

MERICANS IN THE

RIMINAL

USTICE

YSTEM

2 (2018); Kathryn A. Sabbeth & Jessica K. Steinberg, The Gen-

der of Gideon, 69 UCLA L. R

. 1130, 1145-57 (2023) (showing that people of color,

Fall 2023] Civil and Criminal Medical-Legal Partnerships 37

dressing any of these problems are steps towards racial justice. Ad-

dressing them all is vital to achieving it.

While medical professionals may know that “those with an incar-

ceration history report higher chronic health problems, lower self-re-

ported health, higher obesity, more infectious diseases, stress-related

illness, and psychological disorders,” judges and attorneys may not

fully understand the repercussions on health of those they incarcer-

ate.

So, without sharing that knowledge with the courts, advocates

do a disservice to their clients. Yet, most law students do not receive

that type of education in law school and medical students do not often

learn how they can play a role in addressing these issues, com-

pounding the injustice.

For every year of incarceration, prisoners lose on average two

years of their lives.

Even once liberated, at the end of their life, peo-

ple who have been imprisoned are sicker and need more care than

their counterparts who have been free. In the District of Columbia,

like in many cities, this impacts the Black community, more than any

other. While the District’s population is around 45% Black, Black in-

dividuals make up an overwhelming majority of the jail population.

Because D.C. is not a state and does not have its own prison facilities,

once a person is sentenced to prison time in a felony case, they are

sent to a federal Bureau of Prisons (BOP) facility to serve their

sentence.

There are more than 4,000 D.C. residents behind bars in the

BOP.

More than 11 percent of the prisoners in the BOP are over the

age of 55.

About 100 District residents live in federal medical pris-

ons.

Across BOP facilities, 95% of these District residents forced

especially Black women, are often disproportionately represented in the civil justice sys-

tem, as seen in eviction cases, child welfare cases, and certain debt collection cases).

Sebastian Daza, The Consequences of Incarceration for Mortality in the United

States, 57 D

EMOGRAPHY

577, 578 (2020) (examining the long-term association between

individual incarceration and mortality in a longitudinal study spanning nearly forty years).

Emily Widra, Incarceration Shortens Life Expectancy, P

RISON

’

NITIATIVE

LOG

(June 26, 2017), https://www.prisonpolicy.org/blog/2017/06/26/life_expectancy/.

Malcom B. Morse, True Justice: The Disturbing Truth About Incarceration in D.C.,

. J. L. & M

. C

RITICAL

ACE

ERSP

. (February 17, 2020), https://

www.law.georgetown.edu/mcrp-journal/blog/true-justice-the-disturbing-truth-about-incar-

ceration-in-d-c/.

Martin Austermuhle, D.C. Inmates Serve Time Hundreds of Miles from Home. Is it

Time to Bring Them Back?, A

. U. R

ADIO

. 10, 2017),

HTTPS

://

WAMU

ORG

STORY

/17/

08/10/

INMATES

SERVING

TIME

MEANS

HUNDREDS

MILES

HOME

TIME

BRING

BACK

D.C. C

ORR

. I

NFO

. C

OUNCIL

, A

NNUAL

EPORT

2019 2 (2019).

Statistics on Inmate Age, F

. B

UREAU OF

RISONS

, https://www.bop.gov/about/sta-

tistics/statistics_inmate_age.jsp (last visited May. 28, 2023).

Id.

38 CLINICAL LAW REVIEW [Vol. 30:29

against their will to live in the Bureau of Prisons are Black.

These

stark numbers show the racial injustice of the District’s legal system.

Food in BOP facilities is high in salt, sugar, and refined carbohy-

drates.

In a survey asking formerly incarcerated individuals about

their meals while in prison, sixty-two percent of respondents reported

that they rarely or never had access to fresh vegetables while incarcer-

ated.

The commissary food available for purchase is even worse,

with no fresh food available at all.

Furthermore, the partnerships

with private food service providers has lowered food quality standards

as a result of cost cutting efforts to maximize efficiency at a lower

cost.

These low-quality, high-calorie foods are a cheaper yet inade-

quate alternative to nutritionally dense food, which contribute to the

elevated rates of diabetes and heart disease among the incarcerated

population.

Studies show these nutritional deficiencies also cause declines in

an incarcerated individual’s mental health, citing a link between per-

sistent malnutrition and depression, aggression, and antisocial behav-

ior.

Moreover, the standards for medical treatment of prisoners are

very low. Similarly to food service provision, prison health care prov-

iders in the BOP, and in state prisons more broadly, have increasingly

prioritized efficiency at the expense of prisoners’ access to quality

medical care.

Medical treatment in the BOP is subpar.

There are no standards

Rachel Weiner & Justin Wm. Moyer, Inmates from D.C., who are mostly Black, fare

worse prison conditions, W

ASH

. P

OST

(February 8, 2022; 11:46 AM), https://

www.washingtonpost.com/dc-md-va/2022/02/08/bop-lawsuit-dc-inmates/#.

Jessica Carns & Sam Weaver, Two Cups of Broth and Rotting Sandwiches: The Real-

ity of Mealtime in Prisons and Jails, ACLU NEWS AND COMMENT. (Nov. 23, 2022),

https://www.aclu.org/news/prisoners-rights/the-reality-of-mealtime-in-prisons-and-

jails#:~:text=the%20typical%20prison%20diet%2C%20which,illness%20than%20the

%20general%20population.

Eating Behind Bars: Ending the Hidden Punishment of Food in Prison, I

MPACT

UST

(2020), https://impactjustice.org/wp-content/uploads/IJ-Eating-Behind-Bars-Executive

Summary.pdf (describing the scarcity of fresh and nutritious foods available in prisons).

Stephen Raher, The Company Store: A Deeper Look at Prison Commissaries,

RISON

’

NITIATIVE

(May 2018), https://www.prisonpolicy.org/reports/

commissary.html.

Eating Behind Bars: Ending the Hidden Punishment of Food in Prison, supra note 72

(explaining how the systematic slashing of prison food budgets on a national scale have

resulted in a widespread deterioration in the quality of food).

Id. (prison food consumption long term causes rises in cholesterol and body fat and

other diet-related diseases).

Id. (Research shows that the nutritional deficiencies in prisons can result in “an in-

creased risk of diet-related diseases”, immune suppression issues “making incarcerated

people more vulnerable to viruses such as Covid-19” and contribute to “a wide range of

mental health and behavioral issues.”).

Walter Pavlo, Federal Bureau of Prisons’ Medical Care Falls Short of its Own Policy,

ORBES

(Apr. 19, 2022; 11:41 PM);https://www.forbes.com/sites/walterpavlo/2022/04/19/

Fall 2023] Civil and Criminal Medical-Legal Partnerships 39

for the timely delivery of care and facilities are plagued with serious

staffing shortages that impact prisoners’ access to medical care.

With Black citizens more likely to be caged behind bars, and the

BOP’s terrible record of delivery of care, it is unsurprising that life

expectancy is shorter for Black residents and those who spend time in

prison.

The next generation of leaders in law and health need to under-

stand the connections between criminal, health, and racial injustice

and learn to advocate and collaborate to address those injustices. Aca-

demic MLPs are in a unique position to advance this important mis-

sion at both an individual and structural level. Freeing the people

trapped in this racist and punitive system is imperative to their health

and to racial justice. To that end, the American Public Health Associ-

ation has advocated for abolition of the carceral system as an impor-

tant public health strategy.

Because racial disparities in health and

the carceral system stem from centuries of oppression, legal scholars

like Amna Akbar have argued that individual-level advocacy will not

suffice to address “structural and historically rooted” issues.

As one

interdisciplinary team of MLP scholars put it, “carceral exposure . . .

has a significant negative impact on . . . health and well-being. . .”

federal-bureau-of-prisons-medical-care-falls-short-of-its-own-policy/?sh=46a8662b5eab.

Keri Blakinger, Prisons Have a Health Care Issue– And it Starts at the Top, Critics

Say, T

ARSHALL

ROJECT

(July 01, 2021; 6:00 AM), https://www.themarshallpro-

ject.org/2021/07/01/prisons-have-a-health-care-issue-and-it-starts-at-the-top-critics-say

(2021).

Advancing Public Health Interventions to Address the Harms of the Carceral System,

. P

. H

EALTH

’

(Oct. 24, 2020), https://www.apha.org/policies-and-advocacy/pub-

lic-health-policy-statements/policy-database/2021/01/14/advancing-public-health-interven-

tions-to-address-the-harms-of-the-carceral-system; E

RNEST

RUCKER

, A P

LAGUE OF

RISONS

: T

PIDEMIOLOGY OF

ASS

NCARCERATION IN

MERICA

163 (2d ed. 2013)

(“To employ a public health model of prevention we must also think beyond the usual

clinical model of care that is premised on’fixing what is broken’ in the individual case. In

the public health approach we need to consider each part of the epidemiological triad—not

just the host—by reducing exposure to the harsh punishment of imprisonment.”).

Amna A. Akbar, An Abolitionist Horizon for (Police) Reform, 108 C

. L. R

1781, 1839 (2020) (“Mass incarceration and broken-windows policing are only decades-old

phenomena, while racialized modes of exploitation, dispossession, and confinement have

existed since at least the dawn of colonialism and enslavement.”); Advancing Public Health

Interventions to Address the Harms of the Carceral System, A

. P

. H

EALTH

’

(Oct.

24, 2020), https://www.apha.org/policies-and-advocacy/public-health-policy-statements/pol-

icy-database/2021/01/14/advancing-public-health-interventions-to-address-the-harms-of-

the-carceral-system (“While efforts to improve health conditions both during and after in-

carceration are important, they do not address the root causes of incarceration or prevent

the associated negative health consequences. . . . Abolition requires that we take a critical

approach and investigate the root cause of the various levels of policy and the ingrained

frameworks that limit our conceptions of—and responses to—safety, punishment, and

violence.”).

Nicolas Streltzov, Ella van Deventer, Rahul Vanjani & Elizabeth Tobin-Tyler, Arti-

cle, A New Kind of Academic MLP: Addressing Clients’ Criminal Legal Needs to Promote

40 CLINICAL LAW REVIEW [Vol. 30:29

Improving prison conditions or even medical care in prisons is insuffi-

cient to address health inequities because physical incarceration has

powerful negative impacts on health.

The early exposure that A-MLPs provide to law and medical stu-

dents of the realities of the criminal, health, and racial injustice nexus

creates a formative experience for these new professionals, which can

counteract the siloing and traditional status quo of their industries.

Through their firsthand experiences, law and medical students also

gain insight into the importance of linking clinical experiences to ef-

forts for expansive and radical social change. With this education, the

next generation of legal and health leaders will be prepared to push

for structural reform in concert with their client/patient advocacy.

II. I

NTERPROFESSIONAL

CADEMIC

EDICAL

-L

EGAL

ARTNERSHIP

DVOCACY TO

DVANCE

EALTH AND

ACIAL

USTICE

CROSS

IVIL AND

RIMINAL

EGAL

DVOCACY

A. Academic Medical-Legal Partnerships (A-MLPs)

Medical-legal partnerships (MLPs) provide an important vehicle

for the advancement of health justice and racial justice.

MLPs inte-

grate lawyers onto healthcare teams to address health-harming legal

needs.

In a traditional MLP, lawyers train physicians and other

healthcare professionals to identify unmet legal needs that impact

health and refer patients to the attorney team for legal assistance.

The attorneys and healthcare providers collaborate to address those

legal needs, with attorneys helping the healthcare team understand

laws that serve as determinants of health and the legal rights of their

patients, and the healthcare team lending information and expertise in

support of legal advocacy.

MLPs also engage in patients-to-policy

advocacy, which involves the identification of gaps and problems with

Health Justice and Reduce Mass Incarceration, J.L. M

. & E

THICS

(forthcoming 2024)

(manuscript at 3) (on file with authors).

Megan Sandel, Mark Hansen, Robert Kahn, Ellen Lawton, Edward Paul, Victoria

Parker, Samantha Morton & Barry Zuckerman, Medical-Legal Partnerships: Transforming

Primary Care By Addressing the Legal Needs of Vulnerable Populations, H

EALTH

FFS

LOG

(Sept. 2010), https://www.healthaffairs.org/doi/10.1377/hlthaff.2010.0038 (describing

the “patients to policy” model of MLPs).

Cannon, supra note 56, at 561–62 (2022).

Id. at 61; Elizabeth Tobin Tyler & Joel B. Teitelbaum, Medical-Legal Partnership: A

Powerful Tool for Public Health and Health Justice, 134 P

. H

EALTH

. 201, 203

(2019).

Cannon, supra note 19 (2020), at 265 (2020); The Response, N

’

. F

EGAL

P’

SHIP

, https://medical-legalpartnership.org/response/ (last visited Sept. 5, 2023).

Cannon, supra note 14 (2023), at 78 (2023).

Fall 2023] Civil and Criminal Medical-Legal Partnerships 41

the law that necessitate systemic change and advocacy to pursue nec-

essary reforms.

A-MLPs are based in university settings and engage pre-profes-

sional learners in interprofessional MLP learning environments that

are often experiential.

They can also leverage their roles within re-

search institutions to develop research and scholarship to study the

impact of MLP advocacy and teaching and to explore the connections

between health and justice.

Many A-MLPs are housed in law school

clinics, where law students partner with medical, nursing, social work,

public health, or other health profession students and professionals in

seminars, case rounds, and/or casework on behalf of clients with low-

income.

Some A-MLPs also use the patients-to-policy advocacy ap-

proach to engage in work towards systemic reform.

MLPs have traditionally engaged in civil advocacy on behalf of

clients. The National Center for MLP has put forth the I-HELP

framework to capture the types of health-harming civil legal needs

most often encountered and addressed by civil legal aid, which include

Income, Housing & Utilities, Education & Employment, Legal Status,

and Personal & Family Stability.

The only criminally-related legal

issue explicitly included on the I-HELP chart is the clearing of crimi-

nal histories, through efforts such as sealing and expungement of crim-

inal records, in the Legal Status category.

Traditionally, criminal

justice-related advocacy was not within the purview of MLPs, most of

which involve civil legal advocacy by legal aid organizations or law

Yael Cannon, Unmet Legal Needs as Health Injustice, 56 U. R

ICH

. L. R

. 801, 862

(2022).

See V

ICKI

W. G

IRARD

, D

EBORAH

F. P

ERRY

, L

ISA

P. K

ESSLER

, Y

AEL

ANNON

RASHASTI

HATNAGAR

& J

ESSICA

OTH

, T

CADEMIC

EDICAL

-L

EGAL

ARTNER-

SHIP

: T

RAINING THE

EXT

ENERATION OF

EALTH AND

EGAL

ROFESSIONALS TO

ORK

OGETHER TO

DVANCE

EALTH

USTICE

’

FOR

.-L

EGAL

P’

SHIP

15 (2022); see Edward B. Healton, William M. Treanor, John J. DeGioia & Vicki W.

Girard, Training Future Health Justice Leaders – A Role for Medical-Legal Partnerships,

384 N

. J. M

. 1879, 1880 (2021).

ICKI

W. G

IRARD

et al., supra note 85, at 18.

Id. at 12.

Cannon, supra note 84, at 847 (2022); see generally Deborah N. Archer, Political

Lawyering for the 21st Century, 96 D

ENV

. L. R

. 399 (2019) (describing a practice of

political lawyering through which lawyers can “tackle both new and chronic issues of injus-

tice through a broad array of advocacy strategies”).

Marple, supra note 15.

ARSHA

EGENSTEIN

, J

ENNIFER

ROTT

& A

LANNA

ILLIAMSON

, T

TATE OF

THE

EDICAL

-L

EGAL

ARTNERSHIP

IELD

15 (2017) (explaining that “I-HELP

™

is a sys-

tem of categories designed by the National Center for Medical-Legal Partnership to cap-

ture the types of health-harming civil legal needs most often encountered and addressed by

civil legal aid. The I-HELP

™

categories are defined as Income and insurance, Housing and

utilities, Education and employment, Legal status, and Personal and family stability.”); see

also Marple, supra note 15.

42 CLINICAL LAW REVIEW [Vol. 30:29

school clinics.

This Article argues that the Academic Medical-Legal

Partnership model provides an important opportunity to advance ra-

cial justice by training the next generation of lawyers, doctors, and

other healthcare professionals not only to address the civil legal deter-

minants of health, but to address the criminal legal determinants of

health as well.

B. MLP Advocacy to Advance Racial Justice Across Civil and

Criminal Spheres

It was not until the COVID-19 pandemic that Georgetown Law’s

two criminal law clinics recognized that the MLP model could benefit

clients. Through the experience of litigating compassionate release

cases with clinical law students that involved review of and arguments

about clients’ medical records, these clinics realized that criminal de-

fense expertise was not sufficient to provide excellent delivery of legal

services. Faculty in the criminal clinics reached out to the already-ex-

isting Health Justice Clinic (HJA) A-MLP at Georgetown for help

connecting with faculty at Georgetown’s medical school who already

worked with HJA. The partnership between the medical school and

the law school grew to include criminal legal advocacy, helping the

partners in both schools see how A-MLPs could advance health and

racial justice through advocacy in civil and criminal legal systems.

MLPs focused on health and the criminal legal system are rare.

Of the over 400 medical-legal partnerships around the country, the

vast majority focus on civil legal issues.

Development of the tradi-

tional MLP model stemmed from the understanding that low-income

Americans were not guaranteed assistance of counsel in civil mat-

ters.

A new MLP approach is beginning to emerge to address crimi-

EGENSTEIN ET AL

., supra note 90, at 10 (finding that of MLP legal respondents to a

survey by the National Center for Medical-Legal Partnership, three-quarters were a civil

legal aid organization and one-fifth were a law school clinic), 15-16 (“[e]ighty-nine (89)

percent of MLP civil legal organizations received referrals from health care partners for

income and insurance needs, 88 percent had referrals for housing and utilities needs, and

92 percent had referrals related to personal and family stability. Slightly fewer reported

referrals for education and employment needs (83 percent) or needs related to legal status

(68 percent).”).

The Response, N

’

FOR

EDICAL

-L

EGAL

P’

SHIP

, https://medical-legalpartner

ship.org/response (last visited June 15, 2023).

Rahul Vanjani, Sarah Martino, Sheridan F. Reiger, James Lawless, Chelsea Kelly,

Vincent J. Mariano & M. Catherine Trimbur, Physician-Public Defender Collaboration- A

New Medical-Legal Partnership, 383 N

. J. M

. 2083, 2084 (2020) (explaining that

the MLP model stemmed from “the understanding that in the United States low-income

people have no guarantee of assistance in civil matters.” Despite efforts from Congress to

establish the Legal Services Corporation, “ a private 501(c)(3) organization that distributes

federal funding to civil legal aid organizations. . .. There is not enough funding. . ..to meet

the high demand for civil legal services.”).

Fall 2023] Civil and Criminal Medical-Legal Partnerships 43

nal legal needs in addition to civil legal needs.

Incorporating this

model into academic MLPs, where future lawyers and health profes-

sionals can learn to practice differently, provides a critical opportunity

for holistic advocacy to advance racial justice for people involved in

the criminal legal system.

While most academic MLPs focus on civil rather than criminal

legal advocacy, some have focused their civil legal advocacy on people

involved in the juvenile delinquency or criminal legal systems. For ex-

ample, the University of New Mexico Medical-Legal Alliance pro-

vides civil legal advocacy, along with health, behavioral health,

educational and other non-legal services delivered through partner

health clinics, to help at-risk youth stay out of detention.

Yale Law

school has an A-MLP with the Yale-New Haven Hospital working to

keep returning citizens out of the legal system through the delivery of

civil legal assistance.

Focusing on the civil justice issues that deter-

mine whether a person ends up in or cycles back into the carceral

system is important advocacy to advance racial justice.

Some non-academic MLPs have recently begun to advocate

around criminal legal issues. MLPs in Boston, Massachusetts

and

Rhode Island are based out of public defender offices that collaborate

with physicians to address common health-related social and legal

needs.

The partnership between the Rhode Island Public Defender’s

office and the Lifespan Transitions Clinic (LTC), a primary care pro-

gram within the Rhode Island Hospital Center, is an example of this

emerging approach to MLPs.

The MLP in Boston advocates on be-

half of their clients by asking doctors to write medical affidavits for

use in persuading decision makers to consider their client’s medical

MLP in Health Centers Guide Webinar Series Part 4: The Medical-Public Defender

Partnership, N

’

FOR

EDICAL

-L

EGAL

P’

SHIP

(June 28, 2022) https://medical-

legalpartnership.org/mlp-resources/medical-public-defender-partnership.

Julia Sclafani, From Detention to Deliverance, S

EARCHLIGHT

EXICO

(Oct. 21,

2020), https://searchlightnm.org/from-detention-to-deliverance.

Medical-Legal Partnerships, S

OLOMON

FOR

EALTH

L. & P

’

YAT

ALE

., https://law.yale.edu/solomon-center/projects-publications/medical-legal-partnerships

(last visited Sept. 5, 2023).

Press Release, “Our Patients Our Clients” (OPOC), collaboration between Boston’s

public defenders and the Internal Medicine Residency at Brigham and Women’s Hospital

(2023) (on file with author).

Streltzov et al, supra note 78, at 5-6; Vanjani et al., supra note 93, at 2085 (discussing

a new partnership between Rhode Island Public Defenders and a primary care medical

program).

Streltzov et al, supra note 78, at 5-6; Vanjani et al., supra note 93, at 2085 (“Despite

a shared mission of caring for people at their most vulnerable, collaboration between pub-

lic defenders and health care providers in aiding low-income people has not historically

been formalized in MLPs.”) .

44 CLINICAL LAW REVIEW [Vol. 30:29

conditions while they decide the issue of punishment.

100

While traditional MLPs address many of the civil issues that dis-

proportionately affect patients with involvement in the criminal jus-

tice system, this type of MLP model takes the advocacy one step

further, citing that the academic medical literature has “generally fo-

cused on screening and treatment among populations with such in-

volvement, rather than on preventing incarceration itself, as part of an

achievable or even tenable treatment plan.”

101

This medical-public de-

fender partnership works by creating an open field of communication

between physicians and public defenders.

102

For public defenders,

medical information serves as valuable evidence in advocating to keep

their client out of prison.

103

Many patients involved in this program

respond positively to having their physician involved in their legal

process, as it affords patients additional opportunities to discuss their

case or provide documentation that can positively affect outcomes.

104

Proponents of this model state that unlike certain forms of structural

inequality that traditional MLPs address such as homelessness and

food insecurity, incarceration itself as a determinant of poor health

has not “entered the standard medical lexicon.”

105

While these medi-

cal-public defender examples are not academic MLPs, their success

speaks to the benefits of integrating MLPs beyond civil advocacy.

Despite the fact that healthcare providers have become more

aware of the ways that involvement in the criminal justice system neg-

atively impacts patients’ health, physicians are understandably limited

in their ability to address these issues in their capacity as health care

providers. MLPs that engage in both civil and criminal advocacy are a

100

Kate Marple, Framing Legal Care as Health Care: How Legal Services Can Address

the Social Determinants of Health, N

’

TR FOR

. L

EGAL

-P’

SHIP

(2015), https://

medical-legalpartnership.org/wp-content/uploads/2014/02/How-Legal-Services-Help-

Health-Care-Address-SDOH-August-2017.pdf.

101

Vanjani et al., supra note 93, at 2084; Streltzov et al., supra note 78, at 4) (proposing

that medical-legal partnerships can “serve as a vital intervention to prevent or reduce crim-

inal system involvement, while also addressing social and structural determinants of

health”).

102

Vanjani et al., supra note 93, at 2084.

103

Streltzov et al., supra note 78, at 10 (“In numerous instances, judges reported being

moved by the medical reports to reduce or completely spare incarceration due to consider-

ation of the individual’s health.”); Vanjani et al., supra note 93, at 2085 (explaining how

this medical-public defender partnership enables doctors and attorneys new and effective

ways to advocate for the communities that they serve).

104

Vanjani et al., supra note 93, at 2086-88 (describing how this partnership has assisted

patients living with substance use disorders who are prone to have a long history in the

criminal justice system).

105

Vanjani et al., supra note 93, at 2085 (describing a “growing awareness [amongst

physicians] that incarceration and community supervision hinder patients’ attainment of

stable housing, meaningful employment, medication adherence and other determinants of

health”).

Fall 2023] Civil and Criminal Medical-Legal Partnerships 45

collaborative solution to this gap that has potential to reduce harm in

communities and improve health outcomes.

By approaching criminal cases and incarceration as obstacles to

health, and using their client’s medical information as evidence of in-

justice, defense lawyers in MLPs impart a new framework for judges

and the legal system to evaluate the utility of various forms of punish-

ment and rehabilitation. Medical providers impact their patient’s

health outside of prescribing medication and giving advice through the

medical expertise shared with the legal system through the MLP, thus

impacting their patient’s health in a substantial way. In particular, aca-

demic MLPs are uniquely positioned to advance racial justice by train-

ing lawyers and doctors to take this new approach through

collaborative advocacy before their careers even start.

1. A-MLP Civil Advocacy

Academic MLPs have long been engaged in civil legal advocacy.

Early university-based MLPs involved law school clinics at University

of New Mexico, Georgia State, and other law schools advocating to

address civil legal issues facing patients of their medical partners in

areas such as housing, family, education, and public benefits law.

106

While MLPs that address civil legal needs, including academic MLPs,

have traditionally framed their work through the lens of poverty,

scholars are increasingly calling on MLPs to explicitly work to ad-

vance racial justice, especially given the structural racism that drives

both health inequities and civil injustice and the histories of racism in

both medical and legal systems. In training the next generation of doc-

tors, lawyers, and other health professionals, A-MLPs provide a

unique opportunity to advance racial justice by educating learners

during a critical formational period prior to launching their careers.

In an A-MLP, students from law, medicine, and other health dis-

ciplines can learn about the complicated and compounding nature of

the issues facing clients as a result of structural racism, the intersecting

identities of many clients, and the need for intentional approaches

that advance justice on multiple fronts.

107

For example, in the Health

Justice Alliance Law Clinic at Georgetown University Law Center,

law and medical students learn about approaches from critical race

106

Vicki W. Girard, Yael Z. Cannon, Deborah F. Perry & Eileen S. Moore, Academic

Medical-Legal Partnerships: Centering Education and Research to Help Advance Health

Justice, J.L. Med. & Ethics (forthcoming 2023) (manuscript at 5) (on file with authors).

107

See Healton et al., supra note 85, at 1880; Georgetown’s Health Justice Alliance

Unites Law and Medical Centers to Advance Health Equity [Hereinafter Georgetown’s

Health Justice Alliance], G

. L.: N

EWS

(May 19, 2021), https://www.law.georgetown.edu/

news/georgetowns-health-justice-alliance-unites-law-and-medical-students-to-advance-

health-equity/.

46 CLINICAL LAW REVIEW [Vol. 30:29

theory and other critical legal studies, such as intersectionality and

counternarratives,

108

which help them to understand important con-

texts surrounding the issues they are confronting in their casework.

109

They learn about structural racism embedded in the laws, policies, and

systems in which they are operating, such as the racist tropes that

shaped welfare reform in 1996 and the ramifications of pro-gentrifica-

tion policies on communities of color.

Students develop interdisciplinary collaboration skills as part of

the intentionally antiracist pedagogy.

110

They experience the process

and product of including a “legal check-up” as part of a medical ap-

pointment that recognizes that the structural and social determinants

are the primary drivers of health and to see the role that law plays in

driving health inequities.

111

The students learn to identify problems

holistically and to see their clients as people, rather than legal issues

or medical diagnoses, who are in need of holistic advocacy to resolve

intertwined issues.

112

Moreover, students learn to help clients understand where the

challenges they are facing actually implicate legal rights and have legal

remedies, which is important to building the power of clients to self-

advocate and assert their rights in the long-term within systems that

often subordinate people of color.

113

Through low-barrier access to

justice that includes proactive legal screening in the familiar setting of

a pediatrician’s office, law and medical students learn how legal advo-

cacy can prevent crises, including preventing entry into systems that

cause racialized violence, such as eviction courts, the family regulation

system, and the school-to-prison pipeline.

114

For example, by screen-

ing for and identifying public benefits, housing voucher, and housing

conditions legal issues for families struggling to pay rent, the HJA

Law Clinic can advocate for increased benefits and rental assistance

and remediation of substandard housing conditions. Such advocacy

can work upstream to prevent outcomes of racial injustice, such as by

108

Cannon & Tuchinda, supra note 49 at 778 (citing Richard Delgado, Storytelling for

Oppositionists and Others: A Plea for Narrative, 87 M

ICH

. L. R

. 2411, 2438, 2415 (1989)).

109

See Michelle S. Jacobs, People from the Footnotes: The Missing Element in Client-

Centered Counseling, 27 G

OLDEN

ATE

U. L. R

. 345, 346-48 (1997); Richard Delgado,

Storytelling for Oppositionists and Others: A Plea for Narrative, 87 M

ICH

. L. R

. 2411,

2437-40 (1989).

110

See Anna Louie Sussman, Stronger Together, G

. L., Spring/Summer 2020, at 50,

54.

111

See Healton et al., supra note 85, at 1881; Vicki Girard, Yael Canon, Prashasti

Bhatnagar & Susan Coleman, How Medical-Legal Partnerships Help Address the Social

Determinants of Mental Health, 35 A

RCHIVES

SYCHIATRIC

URSING

123, 125 (2021).

112

See Cannon, supra note 14 at 78 (2023).

113

See id.

114

See id. at 82-83.

Fall 2023] Civil and Criminal Medical-Legal Partnerships 47

serving to prevent evictions,

115

which disproportionately impact Black

women and cause tremendous harms to the health and mental health

of families of color.

116

Law and medical students also learn to engage in a “patients-to-

policy” approach through which they identify gaps and problems with

the law and advocate for systemic reform that advances racial justice.

For example, after representing families whose children had been lead

poisoned in rental homes with substandard housing conditions, law

and medical students testified before the D.C. Council to advocate for

legislation that would prevent lead exposure and provide more ac-

countability for landlords to address a systemic problem that dispro-

portionately affects Black children in Washington, D.C., with grave

harms to their health and development.

117

Students also learn to build

the power of clients and communities to drive and advance a health

justice agenda by preparing their clients for legislative testimony and

connecting them with grassroots organizations mobilizing to advocate

for law and budget reforms that advance racial justice in a city where

racial inequities abound.

118

A-MLPs are uniquely positioned to promote racial justice by

training future lawyers and health professionals to approach their

work differently before their careers even start, while their profes-

sional identities, values, skills, and knowledge base are still in

formation.

2. A-MLP Criminal Advocacy

Criminal legal advocacy provides a new frontier for the advance-

ment of racial justice by MLPs—and for A-MLPs in particular. Ge-

orgetown University Law Center’s criminal clinics seized on this

opportunity during the COVID-19 pandemic by building on the work

of Georgetown’s Health Justice Alliance and joining that existing

partnership in A-MLP collaboration to advance racial justice through

criminal legal advocacy. Litigating the federal First Step Act’s com-

passionate release provisions and the D.C. Compassionate Release

statutes placed medical records of long-serving prisoners in the Bu-

reau of Prisons into the hands of lawyers and judges outside prison

walls.

119

Both statutes allow judges to revisit long prison sentences of

115

Id. at 74.

116

Sabbeth & Steinberg, supra note 59 at 1147-48.

117

See Sussman, supra note 113, at 50, 60; Healton et al., supra note 85, at 1881; Ge-

orgetown’s Health Justice Alliance, supra note 110.

118

See Yael Cannon, Equipping the Next Generation of Health Justice Leaders, H

ARV

L. S

. P

ETRIE

LOM

. B

LOG

(Sept. 20, 2021), https://blog.petrieflom.law.harvard.edu/

2021/09/20/health-justice-leaders/.

119

Ann E. Marimow, Sick, Elderly Prisoners are at Risk for Covid-19. A new D.C. Law

48 CLINICAL LAW REVIEW [Vol. 30:29

elderly and sick people who are still forced to live behind bars.

120

These statutes, and similar ones across the country, gave the legal

community an opportunity to address the suffering of the vulnerable

incarcerated community who have no choices with respect to their

medical care or the food they eat.

Initially, much of the litigation of compassionate release motions

was focused around removing older prisoners and those with medical

conditions from crowded prisons so they might avoid contracting

COVID-19.

121

Thousands of petitions were filed on behalf of people

serving sentences in the BOP.

122

Over 4000 federal prisoners were re-

leased by judges under the federal First Step Act compassionate re-

lease provision.

123

Over 200 people have been released by the D.C.

Superior Court under D.C.’s compassionate release statute.

124

Dozens

of those released were represented by Georgetown’s criminal

clinics.

125

Georgetown Law’s criminal clinics’ students and post-graduate

fellows began filing compassionate release motions on behalf of Dis-

trict of Columbia residents serving sentences in the Bureau of Prisons

in 2020. The law students and the clinical law faculty had no medical

training and it quickly became apparent that high quality legal work

on compassionate release cases required medical expertise, and a

partnership between the criminal clinics and the medical school

began.

Criminal clinic students at Georgetown started to participate in

the relationship during the 2020-2021 school year and it has continued

in the years since. It may be the first MLP within a law school crimi-

nal defense clinic. The relationship between the Health Justice Alli-

ance, the criminal clinics and the medical school has underscored that

Makes it Easier for them to Seek Early Release,

WASH

POST

(Dec. 30, 2020), https://

www.washingtonpost.com/local/legal-issues/sick-elderly-inmates-coronavirus-release/2020/

12/29/5342816c-3fcd-11eb-8db8-395dedaaa036_story.html; see also, Laetitia Haddad, Law

Students Win Compasionate Release for Clients Through GULC Clinics,

THE HOYA

(Apr.

23, 2021), https://thehoya.com/law-students-win-compassionate-release-for-clients-through-

gulc-clinics/.

120

18 U.S.C. § 3582 (c)(2) (2018)(Imposition of a Sentence of Imprisonment for Sen-

tencing Relief);

CODE

§ 24-403.04 (2021)(Motions for Compassionate Release for In-

dividuals Convicted of Felony Offenses).

121

Benjamin A. Barsky, Sunny Y. Kung & Monik C. Jiminez, Covid-19, Decarceration,

and Bending the Arc of Justice- The Promise of Medical-Legal Partnerships, H

EALTH

FFS

LOG

(May 28, 2021), https://www.healthaffairs.org/content/forefront/covid-19-decarcera-

tion-and-bending-arc-justice-promise-medical-legal-partnerships.

122

U.S. S

ENT

’

OMM

’

, C

OMPASSIONATE

ELEASE

ATA

EPORT

4 (2022).

123

Id. at Table 1.

124

Records on file with authors.

125

As of the writing of this paper, the Georgetown clinic students and E. Barrett Pretty-

man fellows have secured the release of more than 40 men. Records on file with authors.

Fall 2023] Civil and Criminal Medical-Legal Partnerships 49

MLPs can be fruitful across legal disciplines and impact client out-

comes, including judicial decisions, in both civil and criminal cases, as

well as student learning in ways that advance health and racial justice.

The partnership with medical faculty and students has shown the

Georgetown Law criminal clinics and faculty that justice is not possi-

ble in any sphere, especially racial justice, without health justice. The

collaboration has meant freedom for dozens of criminal clinic cli-

ents—elderly and sick men. Clients have been reunited with their

families and communities before the end of their lives—something

many of them thought would never happen. Clients have been con-

nected with renal specialists, oncologists, and other specialists once

they have been released into the community, often after decades of

incarceration. Almost every single client was African American.

Maybe most importantly, the Georgetown Law criminal clinics have

had the opportunity to educate D.C.’s bench about the health impacts

of prison, and have educated medical and law students—future lead-

ers in medicine and law—alike.

Once a week, fourth-year medical students and a medical school

professor meet with third year law students, fellows and faculty in the

criminal clinic to review medical records provided by the Bureau of

Prisons in connection with legal representation of clients on motions

for compassionate release. These “case rounds” allow for education

across disciplines, for law students to have the experience of working

with experts outside of law, and for medical students to review medi-

cal records kept by a prison and see the impacts of prison on the

human body. In a few instances, the medical school supervisor has

even assumed temporary medical care for sick clients who get re-

leased from prison while an appropriate physician is identified.

The partnership also gives each medical student the opportunity

to deliver a lecture (supervised and evaluated by a medical faculty

partner) once a month on a relatively common health condition

among our client population like—heart disease, hepatitis, kidney dis-

ease, eye disorders—that are uploaded to a medical library accessible

to the law students and faculty. This has increased medical knowledge

for everyone.

Many in the public health and medical communities have long

known that a person’s zip code is more important than their genetic

code in determining health outcomes.

126

It is understood that the so-

cial determinants impact an individual’s health in many ways. Factors

126

Garth Graham, MaryLynn Ostrowski & Alyse Sabina, Defeating the ZIP Code

Health Paradigm: Data, Technology, and Collaboration Are Key, H

EALTH

FFS

. B

LOG

(Aug. 6, 2015), https://www.healthaffairs.org/content/forefront/defeating-zip-code-health-

paradigm-data-technology-and-collaboration-key.

50 CLINICAL LAW REVIEW [Vol. 30:29

like where a person lives, grows up, attends school, and whether they

have experienced trauma can all impact a person’s health. This is cer-

tainly true of prisons.

The medical school partners found expected health issues in al-

most all of the clients, which is unsurprising, since these incarcerated

clients were asking for compassionate release. But medical partners

also identified health issues that had not been identified by the prison

medical staff. Students were able to help clients get more appropriate

care even if they were not released from prison.

The fact that most of the compassionate release clients served by

the Georgetown Law criminal clinics have been Black people is a re-

flection of the population of indigent D.C. residents in the Bureau of

Prison serving long sentences and the existing racism in our legal sys-

tem and other institutions. Therefore, the curriculum for the Ge-

orgetown law criminal clinic students includes the topic of race and/or

racism in nearly every conversation–whether it is with respect to a

racist algorithm used to identify kidney disease by the BOP (and

many other medical providers),

127

explicit racial bias by police, prose-

cutors and judges, or in conversations about the Fourth Amendment.

The curriculum and conversations in seminar deepen the learning that

students receive in the field and through the collaboration.

Georgetown’s medical-legal partnership so far has only served

clients on requests for release from the federal Bureau of Prisons

under the District of Columbia’s compassionate release statute.

128

While this criminal MLP is focused on post-conviction release, MLPs

in defender offices and law school criminal defense clinics can be used

not only to get sick and elderly people out of prison, but to advocate

for alternatives to pre-trial detention and incarceration, to address

how all conditions of confinement harm health, and to help address

substance abuse, psychiatric issues, head injuries, birth injuries, and

pain management as well. They can also work interdisciplinarily to-

wards systemic reform of the carceral system and the broader criminal

legal system.

Hopefully, the emerging model of public defender MLPs and A-

MLPs, such as the one at Georgetown University, will broaden the

reach of these alliances across systems. As Georgetown criminal clinic

law students who go on to public defender offices and other legal and

127

Rae Ellen Bichell & Cara Anthony, For Black Kidney Patients, an Algorithm May

Help Perpetuate Harmful Racial Disparities, W

ASH

. P

OST

(June 6, 2021), https://

www.washingtonpost.com/health/black-kidney-patients-racial-health-disparities/2021/06/

04/7752b492-c3a7-11eb-9a8d-f95d7724967c_story.html.

128

D.C. C

ODE

§ 24-403.04 (2021) (Motions for Compassionate Release for Individuals

Convicted of Felony Offenses).

Fall 2023] Civil and Criminal Medical-Legal Partnerships 51

policy settings and the medical students graduate and become physi-

cians, they can build on their MLP experience and work to advance

health and racial justice in criminal and other legal spheres, helping

individuals achieve justice and transforming health and legal systems

and structures.

III. A-MLP A

DVANCEMENT OF

ACIAL

USTICE

Law school clinics engaged in A-MLP advocacy are uniquely situ-

ated to advance racial justice. Seminars, case rounds, experiential

learning, and client cases offer opportunities to advance racial justice

across criminal and civil legal spheres. Given the work that the au-

thors have done developing companion A-MLPs at the same law

school in both civil and criminal law school clinics, the collaboration

has allowed for sharing inspiration drawn from our attempts to make

these clinics springboards for racial justice. This Article argues that A-

MLPs are well-positioned to advance racial justice not only through

civil legal advocacy, but through criminal legal advocacy as well. This

section examines specific approaches that A-MLPs should adopt in

order to promote racial justice across civil and criminal legal

advocacy.

A. Naming and Centering Racial Justice and Anti-Racist Advocacy

A-MLPs across the civil and criminal spheres should begin their

racial justice work by explicitly naming and framing their racial justice

missions and centering anti-racism in their work.

129

A-MLP scholar

and law clinic professor Medha Makhlouf has argued that a focus on

structural racism has been traditionally absent from the MLP move-

ment, with poverty instead most commonly serving as the focal

point.

130

The poverty focus results from longstanding perspectives of

legal services and healthcare, and has the potential to reinforce struc-

tural inequality.

131

With a singular focus on poverty, MLPs risk over-

looking the structural racism in our institutions that underlies

disparities in health.

132

Given that racial disparities in health, housing,

education, and the criminal legal system persist even when controlling

for socioeconomic status,

133

a poverty orientation is inadequate to

129

Medha Makhlouf, Addressing Racism through Medical-Legal Partnerships, H

ARV

. L.

. P

ETRIE

-F

LOM

. B

LOG

(September 24, 2020), https://blog.petrieflom.law.harvard.

edu/2020/09/24/addressing-racism-medical-legal-partnerships/.

130

Medha D. Makhlouf, Towards Racial Justice: The Role of Medical-Legal Partner-

ships, 50 J. L. M

. & E

THICS

117, 119 (2022); Girard et al., supra note 106, at 12.

131

See Makhlouf, supra note 130, at 119.

132

See Makhlouf, supra note 130, at 121.

133

See Dina Shek, Centering Race at the Medical-Legal Partnership in Hawai’i, 10 U.

. R

ACE

& S

. J

UST

. L. R

. 109, 114 (2019); Makhlouf, supra note 130 at 118 (“Sys-

52 CLINICAL LAW REVIEW [Vol. 30:29

provide the foundation needed for MLP advocacy in pursuit of health

justice. In a society where many are in denial of both the existence

and ubiquity of racism, naming it is particularly critical.

134

Similarly, A-MLP scholar and law clinic professor Dina Shek has

argued that MLPs must work explicitly to combat structural racism so

that they do not unintentionally “uphold and legitimize the structures

that maintain institutional racism.”

135

Failing to specifically recognize

racism also undermines the goal of MLPs to affect transformational

change—and risks creating regular clients as opposed to building the

power of clients as self-advocates.

136

An intersectional approach cen-

tering structural racism, rather than limiting the scope to poverty can

ensure that MLPs are not creating returning clients, but rather in-

creasing collective power and dismantling racial injustice perpetuated

by legal and medical systems.

137

Naming and framing the work of MLPs through the lens of racial

justice is also important because racial health inequity is a “wicked

problem,” or a problem that is interdisciplinary, deep-rooted, chronic,

and unremitting, with multiple sources.

138

Wicked problems require

attention to the structures at their root that contribute to their

longevity.

139

Such an approach requires going beyond traditional framing of

criminal defense or civil legal advocacy work and naming and framing

racial justice as a core value and goal of A-MLP work. An explicit

anti-racist focus and acknowledgement of structural racism can

deepen interprofessional student learning about health equity and

health justice.

140

For example, A-MLP faculty at Loyola Law School

recently introduced a new interprofessional course for law, medical,

temic health differences by race and ethnicity in the United States are the fruits of struc-

tural racism. . ..”); D

AYNA

OWEN

ATTHEW

, C

FOR

EALTH

’

YAT

ROOKINGS

AW A S

EALER

: H

AYING FOR

EDICAL

-L

EGAL

ARTNERSHIPS

AVES

IVES

AND

ONEY

20-24 (2017).

134

See Catherine Siyue Chen, Fernando P. Cosio, Deja Ostrowski & Dina Shek, Devel-

oping a Pedagogy of Community Partnership Amidst COVID-19: Medical-Legal Partner-

ship for Children in Hawai’i, 28 C

LINICAL

L. R

. 107, 119 (2021).

135

Shek, supra note 133, at 112-13; Makhlouf, supra note 130, at 120–21.

136

See Shek, supra note 133, at 124-25.

137

See, e.g., Makhlouf, supra note 130, at 120; Emily Benfer, James Bhandary-Alexan-

der, Yael Cannon, Medha Makhlouf & Tomar Pierson-Brown, Setting the Health Justice

Agenda: Addressing Health Inequity & Injustice in the Post-pandemic Clinic, 28 C

LIN

. L.

. 45, 80-82 (2021).

138

See Benfer et al., supra note 137, at 80-82 (citing Horst W. J. Rittel & Melvin M.

Webber, Dilemmas in a General Theory of Planning, 4 P

’

CIENCES

155, 160-167

(1973)).

139

See Benfer et al., supra note 137, at 51-52 (citing Horst W. J. Rittel & Melvin M.

Webber, Dilemmas in a General Theory of Planning, 4 P

’

CIENCES

155, 160-167

(1973)).

140

See Makhlouf, supra note 130 at 121; See Girard et al., supra note 106, at 12.

Fall 2023] Civil and Criminal Medical-Legal Partnerships 53

and public health students called “Health Justice Lab: Race and

Health Equity,” in which students study the role of racism in

medicine, public health, and law through discussions, case studies,

community outreach, and advocacy work.

141

Shek also argues that MLPs should not only name institutional

racism but work to understand its local mechanisms and act to dis-

mantle it.

142

For both criminal and civil A-MLPs, racial justice should

be a stated and prevalent value guiding their work and teaching

goals.

143

B. Educating Future Lawyers, Doctors and Other Health

Professionals Interprofessionally Through Antiracist

Pedagogy

A-MLP law clinics should serve as a vehicle for the advancement

of health and racial justice by helping future lawyers and health pro-

fessionals to make the connections between these forms of justice.

Students learn to identify “racism in order to address racial disparities

in health and in other aspects of life which impact on health,” such as

education, employment, economic and housing insecurity, and incar-

ceration.

144

They work interdisciplinarily to “understand the local

mechanisms and impacts of racism,” including asking the question

“how is it operating here?”

145

Students consider the “messy social re-

alities” of their clients, centering their voices and ideas, and consider

how subordinated racial groups experience justice efforts.

146

This

work includes investigating the role of racism in the social and struc-

tural components of health, as well as the ways in which racism itself

harms health, both of which are critical components of understanding

and addressing health injustice.

147

A-MLPs should apply a health justice framework that centers ra-

cial justice interventions across their teaching and service work in

both criminal and civil legal collaborations.

148

A-MLPs can aim to ed-

ucate students on inequitable power formations (such as the carceral

and eviction systems) and the health impacts of intersectional discrim-

141

L. Kate Mitchell, Maya K. Watson, Abigail Silva & Jessica L. Simpson, An Inter-

professional Antiracist Curriculum Is Paramount to Addressing Racial Health Inequities, 50

J.L. M

. & E

THICS

109, 112-13 (2022).

142

See Shek, supra note 133, at 131.

143

Cannon, supra note 118.

144

Shek, supra note 133, at 131 (citing Camara Phyllis Jones, Confronting Institutional-

ized Racism, P

HYLON

7, 18-20 (2003))

145

Id.

146

Id. at 125-26 (citing Eric Yamamoto, Critical Race Praxis: Race Theory and Political

Lawyering Practice in Post-Civil Rights America, 95 M

ICH

. L. R

. 821, 828 (1997)).

147

Makhlouf, supra note 129; Benfer et al., supra note 137, at 77.

148

Benfer et al., supra note 137, at 77.

54 CLINICAL LAW REVIEW [Vol. 30:29

ination across both criminal and civil legal systems.

149

They can help

students surface the inadequacy of the law on the books from their

practice experience, the ways they can approach their work from a

racial justice perspective, and the need for non-reformist reforms and

abolition work to dismantle systems that cause racialized violence.

150

Such interprofessional learning must involve exploring the role of

structural racism in law and healthcare—the very professions and dis-

ciplines of A-MLP learners—as a root cause of health inequities,

along with broader examination of the ways criminal and civil legal

systems drive racial health disparities. In the classroom and in the

field, interprofessional collaboration promotes not only cultural

humility, but also “structural competency,” to ensure that profession-

als across disciplines understand “governmental policies, residential

patterns, and environmental inputs [and criminal justice system

harms] outside the clinical setting that impact health,” which can ex-

pand the impact of lawyers and medical providers on population

health.

151

By integrating anti-racist pedagogy into interprofessional collabo-

ration, A-MLP learners can strengthen their understanding of racial

health injustice, better reflect on their own roles in maintaining racial

subordination, and work with others in their careers to address and

prevent the health harms of systemic racism.

152

The interprofessional

environment also encourages students to collaborate, learn, teach, and

exercise new skills.

153

This type of curricular focus also advances the goal of the Ameri-

can Bar Association (ABA) that every law student be educated “on

bias, cross-cultural competency, and racism” at least twice, which is

now required of law school curricula per ABA Standard 303.

154

For

149

Makhlouf, supra note 129; Amna Akbar, Demands For a Democratic Political Econ-

omy, 134 H

ARV

. L. R

. 90, 97 (2020) (“Organizers are increasingly using the heuristic of

non-reformist reforms to conjure the possibility of advancing reforms that facilitate trans-

formational change.”); Amna Akbar, Teaching Penal Abolition, L. & P

. E

CON

. B

LOG

(July 15, 2019), https://lpeproject.org/blog/teaching-abolition/.

150

Makhlouf, supra note 129; Amna Akbar, Demands For a Democratic Political Econ-

omy, 134 H

ARV

. L. R

. 90, 97 (2020) (“Organizers are increasingly using the heuristic of

non-reformist reforms to conjure the possibility of advancing reforms that facilitate trans-

formational change.”) Amna Akbar, Teaching Penal Abolition, L. & P

. E

CON

. B

LOG

(July 15, 2019), https://lpeproject.org/blog/teaching-abolition/.

151

Peter S. Cahn, How Interprofessional Collaborative Practice Can Help Dismantle

Systemic Racism, 34 J. I

NTERPROFESSIONAL

ARE

431, 433 (2020); see Jonathan M. Metzl

& Helena Hansen, Structural Competency: Theorizing a New Medical Engagement With

Stigma and Inequality, 103 S

. S

. & M

. 126, 129-30 (2014).

152

Cahn, supra note 151, at 433.

153

See Girard et al., supra note 106, at 7.

154

TANDARDS

& R

ULES OF

ROC

FOR

PPROVAL OF

L. S

CHS

. § 303(c) (A

. B

’

2022) (stating that law students should be educated on these topics at the beginning

Fall 2023] Civil and Criminal Medical-Legal Partnerships 55

example, the curriculum of Boston University School of Law’s Health

Justice Practicum contributes to this requirement, with the student co-

hort engaging in individual reflections and project rounds that center

the role of structural racism.

155

In turn, the students view their patient/

clients more holistically.

156

In cultivating interprofessional experiential education in particu-

lar, both medical and legal students gain not only knowledge, but ac-

tual experience, vocabulary, and skills in addressing racism and its

detrimental impacts in healthcare and legal systems.

157

Law students

learn to collaborate, as well as how to work with an expert. The medi-

cal students learn not to blindly trust other doctors and to be inquisi-

tive about the origin of health issues in their patients. The experience

of working with court-involved clients and clients with health-harming

civil legal needs will benefit them in their medical careers, as they will

have a better understanding of the role of structural racism in driving

health inequities and draw on their experience as physician advocates

within a law clinic setting. Medical students come to understand the

importance of legal interventions, not just medical ones. A-MLPs pro-

vide unique opportunities for students to not just learn about these

important contexts, but to put this knowledge into practice early in

their careers.

158

Early exposure to these issues gives aspiring attorneys and health

professionals the tools and skills to identify and address systemic

causes of racial health disparities in their future work.

159

Future doc-

tors and other health professionals can grow more confident in their

own abilities to advocate for their patients through a racial justice

lens, even without legal help, and can learn to identify when a lawyer

is critical to advancing their patients’ needs.

160

of their legal education and at least one additional time before graduation); see also Dani-

elle Pelfrey Duryea, Peggy Maisel & Kelley Saia, Un-Erasing Race in a Medical-Legal Part-

nership: Antiracist Health Justice Advocacy By Design, 70 W

ASH

. U. J.L. & P

’

97, 117

n.67 (2023).

155

Duryea et al., supra note 154, at 110-11.

156

Id. at 110-11(noting that student-advocate teams included Black-led community or-

ganizations and Black elected officials, even if not focused on health issues, in a stake-

holder and power map and that other teams proposed a requirement for licensed

mandated reporters and family regulation agency staff to take classes to combat implicit

bias).

157

See Girard et al., supra note 106, at 8.

158

See L. Kate Mitchell, L. Kate Mitchell, Maya K. Watson, Abigail Silva & Jessica L.

Simpson, An Interprofessional Antiracist Curriculum Is Paramount to Addressing Racial

Health Inequities, 50 J.L. M

. & E

THICS

109, 112-13 (2022).

159

Makhlouf, supra note 129.

160

See Dina M. Shek & Alicia G. Turlington, Building a Patient-Centered Medical-Legal

Home in Hawaii’s Kalihi Valley, 78 H

. J. M

. & P

. H

EALTH

55, 56 (2019).

56 CLINICAL LAW REVIEW [Vol. 30:29

C. Grounding A-MLP Work in CRT and Other Critical Legal

Studies

A-MLPs should also develop racial justice strategies across their

pedagogy and advocacy based on principles of critical race theory

(CRT).

161

Makhlouf argues for incorporation of a CRT framework in

MLPs to educate legal and medical professionals about structural ra-

cism and its effects, intersectional discrimination, and the insufficiency

of our laws in addressing racial health inequity, as well as to facilitate

interdisciplinary collaboration and education.

162

Using CRT

frameworks in A-MLP teaching can also help pre-professional stu-

dents understand these concepts, as well as implicit biases in the legal

and health professions they are entering.

163

Myriad approaches from CRT can be used by A-MLPs to ad-

vance health and racial justice. Some of the CRT approaches for

which health justice and public health scholars have advocated in-

clude counternarratives, centering the voices and stories of people tra-

ditionally relegated to the margins, practicing race consciousness,

understanding intersectionality, and praxis.

164

Counternarratives are stories which “disrupt. . .complacency and

engage the conscience” thereby “help[ing] policymakers understand

why the status quo is unacceptable and what impactful reform would

entail.”

165

A-MLPs can help students learn storytelling skills and thus

deploy counternarratives in their advocacy, such as sharing stories

with judges and policymakers that serve to disrupt dominant narra-

tives, including individualistic narratives that blame people of color

for the health inequities they experience. Centering in the margins

similarly involves approaches that A-MLPs can use in their teaching

and curricular choices, and advocacy both in individual civil and crimi-

nal cases and for policy change, “ensur[ing] that the perspectives of

historically and currently marginalized groups are ‘the central axis

around which discourse . . . evolves.’”

166

Race conscious approaches require exploring racialized social

contexts, identifying salient aspects of contemporary racism and

161

Benfer et al., supra note 137, at 77.

162

See Makhlouf, supra note 129.

163

See Girard et al., supra note 106, at 12.

164

Benfer et al., supra note 137, at 77; Girard et al., supra note 106, at 12.; see also Dina

Shek, supra note 133, at 126 (citing Eric Yamamoto, Critical Race Praxis: Race Theory and

Political Lawyering Practice in Post-Civil Rights America, 95 M

ICH

. L. R

. 821, 830

(1997)); Chandra L. Ford & Collins O. Airhihenbuwa, Critical Race Theory, Race Equity,

and Public Health: Toward Antiracism Praxis, 100 A

. J. P

. H

EALTH

S30, S31-34 (2010).

165

Cannon & Tuchinda, supra note 49 at 778 (citing Richard Delgado, Storytelling for

Oppositionists and Others: A Plea for Narrative, 87 M

ICH

. L. R

. 2411, 2438, 2415 (1989)).

166

Id. at 779.

Fall 2023] Civil and Criminal Medical-Legal Partnerships 57

racialized power imbalances, and fighting against the notion of a col-

orblind society.

167

For example, in seminar in the criminal clinic, offer-

ing a class about how the racism and poverty clients have endured can

cause trauma responses is an approach that embodies the CRT princi-

ple of intersectionality. Exploring intersectionality in this context

helps future lawyers and physicians understand that a “person may

experience multiple marginalizations. . .and the distinct experiences of

a multiply marginalized person, including their health, cannot be fully

understood and addressed by looking at and treating each form of

marginalization separately.”

168

CRT approaches also include the centering by A-MLPs of the

role of racism across both civil and criminal legal systems and active

work by A-MLPs to keep patients, including those with intersectional

identities, out of systems that inflict racialized harm (such as the crimi-

nal justice system, eviction courts, the school-to-prison pipeline and

family regulation system), to reduce the racialized harm that those

systems exact, and to dismantle those systems.

169

For example, a re-

cent proposal for Boston University A-MLP to support patients of a

Massachusetts health center providing substance abuse treatment to

pregnant individuals emphasizes the need for an anti-racist design re-

flecting CRT principles like race consciousness and intersectional-

ity.

170

The interdisciplinary seminar curriculum centers “anti-Black

racism and misogyny in the family regulation, drug policy, health care,

and related systems, and offered a health justice frame for the stu-

dents’ work.”

171

It also proposes comprehensive legislative and policy

proposals that “drew more expansive connections among forms of ra-

cism, misogyny, and stigma.”

172

A-MLPs should also deploy the CRT principle of praxis, which is

“the iterative process of deploying knowledge derived through study

and experience to take direct action”

173

that requires “tak[ing] ac-

count of how subordinated racial groups experience justice efforts”

174

167

Chandra L. Ford & Collins O. Airhihenbuwa, Critical Race Theory, Race Equity, and

Public Health: Toward Antiracism Praxis, 100 A

. J. P

. H

EALTH

S30, S31 (2010).

168

Cannon & Tuchinda, supra note 49 at 778 (citing Kimberl ´e Crenshaw, Mapping the

Margins: Intersectionality, Identity Politics, and Violence Against Women of Color, 43

TAN

. L. R

. 1241 (1991)).

169

Cannon, supra note 14 at 83 (2023) (citing Colleen F. Shanahan, Jessica K. Steinberg,

Alyx Mark & Anna E. Carpenter, The Institutional Mismatch of State Civil Courts, 122

OLUM

. L. R

. 1471, 1475-76 (2022)).

170

Duryea et al., supra note 154, at 98.

171

Id. at 109.

172

Id. at 111.

173

See Benfer et al., supra note 137, at 77 (citing Chandra L. Ford & Collins O.

Airhihenbuwa, Critical Race Theory, Race Equity, and Public Health: Toward Antiracism

Praxis, 100 A

. J. P

. H

EALTH

S31, tbl. 1 (2010)).

174

See Shek, supra note 133, at 126 (citing Eric Yamamoto, Critical Race Praxis: Race

58 CLINICAL LAW REVIEW [Vol. 30:29

and listening and acknowledging the experiences of members of

marginalized groups.

175

For example, MLP Hawai’i seeks out and lis-

tens to the “race stories” of their clients, attends community meetings

to understand the needs and goals of community members, and con-

tributes to grassroots efforts.

176

D. Patients-to-Policy Advocacy

As described above, advocacy by A-MLPs in pursuit of health

and racial justice includes enforcing and implementing existing laws

that often go under-enforced or under-implemented for people from

minoritized and marginalized communities, such as housing codes that

require that tenants are provided with humane and habitable condi-

tions and compassionate release statutes, resulting in health-harming

legal needs and health inequities.

177

A-MLP advocacy can also ad-

vance racial justice by identifying patterns and gaps in extant laws and

locating opportunities to reform law and policy, which is known as a

“patients-to-policy” approach.

178

Students can work towards the dis-

mantling of structural racism by listening to patient-clients to identify

harmful policies and practices and then supporting and collaborating

with community-led efforts to push for policy change.

179

This frame

was used by the Health Justice Alliance Law Clinic in the aforemen-

tioned advocacy by law students, medical students, physicians, and cli-

ents to amend laws to promote prevention of lead exposure among

children, which disproportionately affects Black children.

180

Students gain a lot from learning about and engaging in systemic

advocacy with racial justice aims. For example, recognizing that laws

and policies are often at the root of disproportionate harm inflicted on

communities of color, medical students are increasingly embracing ad-

vocacy at the local and national levels and looking to their academic

institutions to provide the training they need to be effective advo-

Theory and Political Lawyering Practice in Post-Civil Rights America, 95 M

ICH

. L. R

821, 881 (1997)).

175

Id. at 126 (citing Eric Yamamoto, Critical Race Praxis: Race Theory and Political

Lawyering Practice in Post-Civil Rights America, 95 M

ICH

. L. R

. 821, 830 (1997)).

176

Id.at 127.

177

See generally Cannon, supra note 19 (2020).

178

See Shek, supra note 133, at 111-12; Makhlouf, supra note 130, at 119; Cannon, supra

note 118 (2021).

179

See Shek, supra note 133, at 111-27; Cannon, supra note 14 (2023), at 79 (citing Story

Series Features Teams that Took SDOH Problem-Solving from Patients-to-Policy, N

’

. F

.-L

EGAL

P’

SHIP

(May 2, 2018), https://perma.cc/VE4F-RXHF.).

180

Deniz Yeter et al., Disparity in Risk Factor Severity for Early Childhood Blood Lead

among Predominantly African-American Black Children: The 1999 to 2010 US NHANES,

17(5) I

. J. E

’

. R

SCH

. P

. H

EALTH

1 (2020).

Fall 2023] Civil and Criminal Medical-Legal Partnerships 59

cates.

181

A-MLPs can play a role in providing this type of training and

opportunities for activism in pursuit of racial justice.

E. Building Client and Community Power

A-MLPs should advance racial justice by building the power of

the clients at the center of their work in order to avoid maintaining

the destructive systems which necessitated the involvement of the A-

MLP.

182

Medical-legal teams can give clients health education and the

legal knowledge and tools necessary for clients to assert their own

rights in the future when they encounter criminal and civil systems,

such as during police encounters or landlord-tenant disputes.

183

Help-

ing equip clients with tools for future problem-solving and self-advo-

cacy can promote legal consciousness and build power in ways that

advance racial justice.

184

These efforts provide valuable experience to

students that can change the way they practice and provide tangible

benefits to clients.

185

MLPs increasingly work to build the collective power of affected

communities by collaborating with clients and grassroots organiza-

tions to serve as resource allies and ensure that affected individuals

drive health justice agendas.

186

For example, the HJA Law Clinic team

prepared a client to testify and tell her story of the lead poisoning

experienced by her children in order to advocate for systemic jus-

tice.

187

This approach has been “prioritized by the Health Justice Alli-

ance Law Clinic to elevate clients’ power in pursuit of transformative

change”

188

by giving them opportunities to share their stories and

ideas for reforms directly with policymakers and opportunities to get

involved with grassroots organizations working towards racial justice.

Similarly, Boston University School of Law’s Health Justice Practicum

partners with Black-led organizations to engage in stakeholder and

power mapping and to design broader policy solutions and goals to

181

See S

TUDENT

’

. A

’

., R

ACISM IS A

UBLIC

EALTH

SSUE

19 (2020),

https://cdn.ymaws.com/snma.org/resource/resmgr/hlpa/report_racism.pdf.

182

See Shek, supra note 133, at 122; Benfer et al., supra note 137, at 73.

183

See Shek, supra note 133, at 122; Benfer et al., supra note 137, at 73.

184

See Catherine Siyue Chen et al., supra note 134, at 117; Shek, supra note 133, at 127;

Dina M. Shek & Alicia G. Turlington, Building a Patient-Centered Medical-Legal Home in

Hawaii’s Kalihi Valley, 78 H

. J. M

. P

. H

EALTH

55, 57-58 (2019); see also Cannon,

supra note 14 (2023), at 78.

185

See Girard et al., supra note 106, at 8; Cannon, supra note 118 (2021) (describing

multiple forms of successful advocacy conducted by students at the Health Justice Alliance

Clinic); Benfer et al., supra note 137, at 63.

186

Cannon, supra note 14 (2023), at 80.

187

Cannon, supra note 118 (2021).

188

Cannon, supra note 14 (2023), at 79.

60 CLINICAL LAW REVIEW [Vol. 30:29

advance health justice.

189

F. Cross-System Advocacy

For years, the legal and medical professions and the academy

have siloed criminal and civil legal systems from one another, with A-

MLPs primarily focused on civil systems. But the reality is that many

of the people ensnared in one legal system will be ensnared in the

other.

190

Individuals in both systems suffer from ill-health long blamed

on independent choices rather than the structural inequities forced

upon them. Many of these systems are deeply racially unjust. In light

of the country’s history of enslavement, Jim Crow, and other instances

of legalized subjugation that have been propped up by our legal sys-

tems, preparing future lawyers and doctors to address these injustices

with every available tool is imperative for the legal profession.

Though the legal field views the civil and criminal systems to be

distinct,

191

the many people of color embroiled in these two systems

and cycles know based on their own experiences that these systems

have fluid boundaries.

192

Access to justice legal scholar Lauren

Sudeall argues that the siloed approach suffers from practical

problems, as it does not recognize the lived experiences of the many

individuals in both systems.

193

And people of color are disproportion-

ately represented across both systems. The same people (or their fam-

ily members, friends, or neighbors) might be clients of a criminal

defense law clinic or a public defender’s office and a law school civil

advocacy clinic or civil legal aid organization. Structural racism and its

resulting impoverishment of people of color have ensured that these

are the same people, just in different courtrooms.

The distinction between civil and criminal legal systems fails to

acknowledge the interaction between the two systems and how legal

issues arise in people’s lives,

194

and the extent to which health, mental

189

Duryea et al., supra note 154, at 110-11 (noting that student-advocate teams included

Black-led community organizations and Black elected officials, even if not focused on

health issues, in a stakeholder and power map and that other teams proposed a require-

ment for licensed mandated reporters and family regulation agency staff to take classes

combating implicit bias).

190

See generally M

ICHELLE

LEXANDER

, T

ROW

: M

ASS

NCARCERATION

IN THE

GE OF

OLORBLINDNESS

(The New Press 2010).

191

See Lauren Sudeall, Rethinking the Civil-Criminal Distinction, in T

RANSFORMING

RIMINAL

USTICE

: A

VIDENCE

-B

ASED

GENDA FOR

EFORM

268, 268 (NYU Press

2022).

192

See Lauren Sudeall, Integrating the Access to Justice Movement, 87 F

ORDHAM

. 172, 174 (2019); Sara Sternberg Greene, Race, Class, and Access to Civil Justice, 101

OWA

L. R

. 1263, 1289 (2016); see also Sudeall, supra note 191 (2022), at 275.

193

See Sudeall, supra note 191 (2022), at 270.

194

See Id.

Fall 2023] Civil and Criminal Medical-Legal Partnerships 61

health, and well-being are harmed by inter-connected entanglement

across systems. For example, participation in the civil justice system

can lead to incarceration and its resulting health harms when a parent

fails to pay court-ordered child support.

195

Or an individual may expe-

rience homelessness after being evicted, an outcome disproportion-

ately wrought on women of color, who experience the highest rates of

evictions.

196

While the person may have been evicted through civil

court proceedings, they might be prosecuted for trespassing into a

warm place to sleep or panhandling for money to buy food.

197

The

person’s eviction, homelessness, food insecurity, and criminalization

all have grave consequences for their health and for people of color,

all of these circumstances drive health inequities.

On the other side, for example, involvement in the criminal legal

system can lead to civil penalties like deportation or eviction from

public housing.

198

Yet, even the penalties themselves are not neatly

separate to those facing them; while a court might find a penalty to be

civil and non-punitive, many defendants may experience that penalty

as deeply punitive and harmful, such as a deportation or the loss of

custody that can occur when a parent is incarcerated.

199

Deportation

can result in significant stress, trauma, and poor health and mental

health for people and their family members,

200

as can parental

incarceration.

201

And of course a single matter might lead to both civil and crimi-

nal cases with health and racial justice implications. For example, a

survivor or a person accused of domestic violence may be involved in

civil and criminal matters resulting from the same instance of violence;

195

See Colleen F. Shanahan, Jessica K. Steinberg, Alyx Mark & Anna E. Carpenter,

The Institutional Mismatch of State Civil Courts, 122 C

OLUM

. L. R

. 1471, 1475 (2022); see

also Elizabeth D. Katz, Criminal Law in a Civil Guise: The Evolution of Family Courts and

Support Laws, 86 U. C

. L. R

. 1241, 1252 (2019) (“[A] substantial component of family

law has long been criminal law.”).

196

See Kathryn A. Sabbeth, Housing Defense as the New Gideon, 41 H

ARV

. J.L. &

ENDER

55, 67 (2018) (citing M

ATTHEW

ESMOND

, E

VICTED

: P

OVERTY AND

ROFIT IN

THE

MERICAN

ITY

98 (2016)); Tonya L. Brito et al., Racial Capitalism in the Civil

Courts, 122 C

OLUM

. L. R

. 1243, 1246 (2022).

197

See Sabbeth, supra note 196, at 67.

198

See Sudeall, supra note 191 (2022), at 270 ; Lauren Sudeall, supra note 192 (2019), at

174; Kathryn A. Sabbeth, The Prioritization of Criminal Over Civil Counsel and the Dis-

counted Danger of Private Power, 42 F

. S

TATE

U. L. R

. 889, 913 (2015).

199

See Sudeall, supra note 191 (2022), at 271-72.

200

See Samantha Aritga & Barbara Lyons, Family Consequences of Detention/Deporta-

tion: Effects on Finances, Health, and Well-Being, K

AISER

AMILY

OUNDATION

(Sept. 18,

2018) https://www.kff.org/racial-equity-and-health-policy/issue-brief/family-consequences-

of-detention-deportation-effects-on-finances-health-and-well-being/.

201

See Eric Martin, Hidden Consequences: The Impact of Incarceration on Dependent

Children, N

’

NST

UST

. (March 1, 2017), https://nij.ojp.gov/topics/articles/hidden-

consequences-impact-incarceration-dependent-children.

62 CLINICAL LAW REVIEW [Vol. 30:29

these matters could include a criminal case for battery, a civil protec-

tive order, a civil case for custody, and more, entangling people in

systems where people of color are over-represented, with health

consequences.

202

To address the issue of strictly distinct systems, Sudeall suggests

early engagement with law students, where they might learn to ex-

amine clients and their problems holistically.

203

A-MLPs provide an

important vehicle for this type of education and have the added bene-

fit of training students and providers from health professions to also

think holistically about the needs of clients. Future lawyers and health

professionals can work across civil and legal systems through inte-

grated advocacy to advance racial justice.

ONCLUSION

The Academic Medical-Legal Partnership model provides an im-

portant opportunity to advance racial justice because it reaches attor-

neys, physicians, and other health professionals at formative stages of

their careers. Before they have fully developed professional identities,

habits, skills, values, and knowledge, they can learn to identify and

critically examine the civil and criminal injustices and connected

health inequities that result from structural racism—and have the

tools and experience to address them. They can learn how and why

both evictions and incarceration, for example, disproportionately im-

pact Black people and other people of color, to the detriment of their

health and well-being, and can learn how to collaborate to prevent

and disrupt those individual outcomes, as well as reform the systems

that create such disparities.

Both law and health professions students learn to see clients/pa-

tients as people, not cases or medical diagnoses, which is equally im-

portant for individuals experiencing civil and criminal legal needs.

Students learn to think about how various legal needs are intertwined

both across systems and with health, social service, and other needs.

This type of client-centered and structural thinking in collaborative

problem identification, analysis, and advocacy can serve to advance

racial justice, as the needs of clients/patients across civil and criminal

legal systems both implicate structural determinants of health and

health inequities driven by structural racism that require intentionally

antiracist approaches. Interprofessional experiential education

through both civil and criminal A-MLPs can prepare future lawyers,

physicians, and other health professionals to advance racial and health

202

Sudeall, supra note 191 (2022), at 273.

203

See Id. at 286-87.

Fall 2023] Civil and Criminal Medical-Legal Partnerships 63

justice throughout their careers.

ENVISIONING REPARATIVE LEGAL

PEDAGOGIES

NTONIO

M. C

ORONADO

As numerous reports, student movements, and forms of scholar-

ship-activism have noted, the traditional U.S. law school classroom re-

mains a space of hierarchy, privilege, and unnamed systems of power.

Particularly for students holding historically marginalized and minori-

tized identities, legal education remains both a remnant of and conduit

for harmful pedagogies. In recognition of these realities and of those

that bring me to legal academia, I believe that my task as an early-

career educator is one of advancing repair in/from the profession I now

join. By looking to liberatory pedagogies from both the clinical legal

context and beyond, this Essay repositions all U.S. legal educators as

inheritors to two dissonant lineages: centuries of educational harm and

genealogies of pedagogical dreaming. In rejecting the historically harm-

ful pedagogies that are normatively embedded in legal education, this

piece implores U.S. legal educators to fulfill our shared duty of peda-

gogical care by developing collective visions of instruction that are

grounded in aims of truth and healing, or reparative legal pedagogies.

NTRODUCTION

“The way to right wrongs is to turn the light of truth upon them.”

–Ida B. Wells

In February of 2021, U.S. Congressmembers Barbara Lee and

Cory Booker introduced a concurrent resolution, Urging the establish-

ment of a United States Commission on Truth, Racial Healing, and

* Project Lead, Innovation 4 Justice Lab, University of Arizona James E. Rogers Col-

lege of Law and University of Utah David Eccles School of Business. They/them/elle pro-

nouns. Antonio is an interdisciplinary educator, legal storyteller, and cross-jurisdictional

advocate committed to the liberatory work of realizing community-led justice. As a class-

room facilitator, they are dedicated to pedagogical practices of dreaming, disrupting, and

radical reflection. This Essay is part of the Promoting Justice: Advancing Racial Equity

Through Student Practice in Legal Clinics Symposium at Georgetown University Law

Center. Immense gratitude to the attendees and my co-panelists at the Law and Society

Association 2023 Annual Meeting. Your comments affirmed the urgency and necessity of

healing in this dangerous, meticulous work of pedagogy- and world-rebuilding. Special

thanks to Amna Akbar, Cayley Balser, Deborah Epstein, Nikola Nable-Juris, and Swethaa

Ballakrishnen for your insights on earlier drafts of this piece.

Ida B. Wells, Miss Ida B. Wells, A Lecture, in W

ASHINGTON

(Oct. 22, 1982) at 1;

see I

B. W

ELLS

, T

IGHT OF

RUTH

: W

RITINGS OF AN

NTI

-L

YNCHING

RUSADER

(Mia Bay & Henry Louis Gates eds., Penguin Classics 2014).

66 CLINICAL LAW REVIEW [Vol. 30:65

Transformation.

Citing the forty countries that have sought to reckon

with “historical injustice and its aftermath” through truth and recon-

ciliation commissions, the resolution aligned with the four-hundredth

anniversary of the first ships that trafficked enslaved Africans to the

U.S.

Their measure drew a direct line from the enforcement of ra-

cially discriminatory federal and local policies to the embedded racial

hierarchy that continues to haunt the country.

Of note, the resolution

never made it out of its respective committees in the U.S. House and

Senate.

I start with this congressional (in)action because of its clarity in

situating intersecting, centuries-long harm: the U.S., as a settler-colo-

nial nation,

has continually failed “to properly acknowledge, memori-

alize, and be a catalyst for progress, including toward permanently

eliminating persistent racial inequities.”

As both the congressional

resolution and preceding movements for Black liberation

and Indige-

H.R.J. Res. 19, 117th Cong. (2021).

S.J. Res. 6, 117th Cong. (2021) (“This concurrent resolution (1) affirms, on the 400th

anniversary of the arrival of the first slave ship, that the nation owes a debt of remem-

brance not only to those who lived through the injustices of slavery but also to their de-

scendants; and (2) urges the establishment of a U.S. Commission on Truth, Racial Healing,

and Transformation to properly acknowledge, memorialize, and be a catalyst for progress,

including toward permanently eliminating persistent racial inequities.”); see also The 1619

Project, N.Y. T

IMES

(“In August of 1619, a ship appeared on this horizon, near Point Com-

fort, a coastal port in the English colony of Virginia. It carried more than 20 enslaved

Africans, who were sold to the colonists. No aspect of the country that would be formed

here has been untouched by the years of slavery that followed. On the 400th anniversary of

this fateful moment, it is finally time to tell our story truthfully”).

H.R.J. Res. 19.

H.R.J. Res. 19; S.J. Res. 6.

Here, I am intentional to use the language of “settler-colonial nation” to name the

ways that imperial violence serves as the base of U.S. legal structures and to insist that we

recognize settler colonialism, as Evelyn Nakano Glenn writes, “as an ongoing structure

rather than a past historical event.” Evelyn Nakano Glenn, Settler Colonialism as Structure:

A Framework for Comparative Studies of U.S. Race and Gender Formation, 1 S

. R

ACE

THNICITY

54, 54 (2015). This piece joins numerous liberatory writers in acknowledging

the reality of settler colonialism by historically grounding our writing and analyses. See,

e.g., Angelique Townsend EagleWoman, The Ongoing Traumatic Experience of Genocide

for American Indians and Alaska Natives in the United States: The Call to Recognize Full

Human Rights as Set Forth in the UN Declaration on the Rights of Indigenous Peoples, 3

. I

NDIAN

L.J. 424 (2015); Roxanne Dunbar-Ortiz, The United States Is Not “a Nation of

Immigrants,” B

. R

. (Aug. 16, 2021), https://www.bostonreview.net/articles/the-united-

states-is-not-a-nation-of-immigrants/.

H.R.J. Res. 19; S.J. Res. 6.

See, e.g., The Black Panther Party for Self-Defense, Ten Point Program, 1 B

LACK

ANTHER

3 (1967), http://post-what.com/1967/05/hueys-re-mix-1967-the-first-appearance/

(“We believe that this racist government has robbed us, and now we are demanding the

overdue debt of forty acres and two mules. Forty acres and two mules were promised 100

years ago as restitution for slave labor and mass murder of Black people. We will accept

the payment in currency which will be distributed to our many communities”).

Fall 2023] Envisioning Reparative Legal Pedagogies 67

nous sovereignty

have identified, truth and reconciliation are needed

from this country. But, as history readily reveals, setting the record

straight on the history of this nation-state has been continually met

with white supremacist, reactionary violence.

In fact, it is our contin-

ued national devotion to historical revisionism—not unlike fake

news

or alternative facts

—that limits our capacity to teach re-

corded and lived truths of legal violence in the U.S.

This pattern of educational violence figures most poignantly in

the so-called “culture wars” that currently rage across U.S. class-

rooms.

According to the UCLA’s CRT Forward Tracking Project, a

whopping 699 anti-Critical Race Theory bills have been advanced by

214 local, state, and federal entities since September of 2020.

Simi-

larly, PEN American, “a U.S.-based nonprofit . . . dedicated to free

expression through literature,” reports that 1,145 books were banned

See, e.g., Truth and Healing Commission on Indian Boarding School Policies Act,

ATIONAL

ATIVE

MERICAN

OARDING

CHOOL

EALING

OALITION

, https://board-

ingschoolhealing.org/truthcommission/ (last visited June 12, 2023); Healing U.S. Divides

Through Truth and Reconciliation Commissions, NPR (Oct. 11, 2020, 4:57PM), https://

www.npr.org/2020/10/11/922849505/healing-u-s-divides-through-truth-and-reconciliation-

commissions.

See, e.g., Kimberle Williams Crenshaw, Race, Reform, and Retrenchment: Transfor-

mation and Legitimation in Antidiscrimination Law, 101 H

ARV

. L. R

. 1331 (1988); Viv-

ian E. Hamilton, Reform, Retrench, Repeat: The Campaign against Critical Race Theory,

through the Lens of Critical Race Theory, 28 W

. & M

ARY

J. R

ACE

ENDER

& S

. J

UST

61 (2021). Here, I am intentional to name the intersecting and self-reinforcing sub-struc-

tures of white supremacy as a paradigm of violence, including racism, classism, heterosex-

ism and transphobia, ableism, anti-Semitism, and xenophobia.

William Cummings, ‘Alternative Facts’ to ‘Witch Hunt’: A Glossary of Trump Terms,

USA T

ODAY

(Jan. 17, 2018), https://www.usatoday.com/story/news/politics/onpolitics/2018/

01/16/alternative-facts-witch-hunt-glossary-trump-terms/1029963001/ (“Originally used to

describe the false stories promulgated on social media by the Russian government as part

of their effort to influence the 2016 election, the term was enthusiastically co-opted by

Trump to refer to any news story he finds unflattering or that might hinder his agenda”).

Id. (“White House counselor Kellyanne Conway . . . explained that White House

spokesperson Sean Spicer was using ‘alternative facts’ to support his demonstrably false

claim that the crowd for Trump’s swearing-in was ‘the largest audience to ever witness an

inauguration—period’”).

See, e.g., Erin Aubry Kaplan, Donald Trump Is (Still) President of White America,

OLITICO

(Nov. 20, 2022, 7:00AM), https://www.politico.com/news/magazine/2022/11/20/

donald-trump-culture-white-supremacy-00069597 (“this culture war is increasingly veering

toward actual combat. American history has been written in violence, most often perpe-

trated by whites against the “Other” — Indigenous folks, Black people, immigrants of

color. In today’s culture war, though, Trump’s opponents are all the indistinguishable

Other — the 54 percent of Americans who don’t support Trump or Trumpism, according to

the latest polling by FiveThirtyEight, and who see democratic progress as the truer Ameri-

can path”); Tim Walker, The Culture War’s Impact on Public Schools, N

’

. A

SSOC

(Feb. 17, 2023), https://www.nea.org/advocating-for-change/new-from-nea/culture-wars-im-

pact-public-schools.

CRT Forward, UCLA S

. L. C

RITICAL

ACE

TUD

., https://crtfor-

ward.law.ucla.edu/ (last visited June 12, 2023).

68 CLINICAL LAW REVIEW [Vol. 30:65

in U.S. classrooms and libraries between July 2021 and March 2022.

This sharp rise in law-sanctioned social control is mirrored in the con-

text of anti-LGBTQ+ educational policies, with over 540 measures be-

ing introduced in the 2023 legislative session alone.

This is but a

vignette into the mounting forms of subordination that make their

way through our systems of law-making, but they make clear that we

are bearing witness to linked forms of ideological, structural, and ma-

terial violence in the name of white supremacy.

By looking to the ways that entrenched white supremacy ani-

mates the waves of book-banning, historical revisionism, and identity-

based subjugation, we can understand the current moment as both by-

product and driver of unacknowledged violence, of persistent white

power and of its defense by our institutions.

We cannot and will not

reckon with the violent lessons of The 1619 Project if it is barred from

our educational spaces.

We cannot center the needs and experiences

of historically marginalized communities in this country if our faces,

stories, and lineages of survival are wiped from school bookshelves.

We cannot heal if we do not learn, and this country remains both reti-

cent and violently reactive to learning its own history.

Critical scholars across the globe have grappled with the question

Morgan Stevens, Tracking Banned Books, C

. D

ATA

NNOVATION

(July 7, 2022),

https://datainnovation.org/2022/07/tracking-banned-books/ (citing PEN A

MERICA

, PEN

MERICA

’

NDEX OF

CHOOL

OOK

ANS

(2021-2022), https://docs.google.com/spread-

sheets/d/1hTs_PB7KuTMBtNMESFEGuK-0abzhNxVv4tgpI5-iKe8/edit#gid=1171606318).

Cullen Peele, Weekly Roundup of Anti-LGBTQ+ Legislation Advancing in States

Across the Country, H

. R

. C

AMPAIGN

(May 2, 2023), https://www.hrc.org/press-re-

leases/weekly-roundup-of-anti-lgbtq-legislation-advancing-in-states-across-the-country-3;

see also Abby Baggini, Judge Blocks Arkansas Law Criminalizing Libraries And Book-

stores for Providing ‘Harmful’ Books to Minors, CNN (July 30, 2023, 8:41PM), https://

www.cnn.com/2023/07/30/politics/arkansas-library-book-ban-judge-blocks/index.html (de-

tailing a now-temporarily-halted bill in Arkansas that would have levied criminal charges

against librarians for providing minors with materials that appealed to “to a prurient inter-

est in sex”—this a dog whistle for content that is inclusive of sexual and gender minorities).

The surge of state and local school policies that have proliferated in the past few

years complement one another in seeking to control the learning and lives of marginalized

youth. Transgender actress and activist, Laverne Cox, identifies this alignment of violence,

saying that the rise of anti-Semitism and anti-trans legislation are of no coincidence. James

Factora, Laverne Cox: “Trans People Are Exhausted” by Anti-Trans Legislation,

THEM

(Jan. 20, 2023), https://www.them.us/story/laverne-cox-anti-trans-legislation. The driving

force was and remains white supremacy; see discussion of recent legislative efforts in fur-

therance of the “culture wars” supra notes 21-26.

See, e.g., Brittany Luse, Barton Girdwood, Jessica Mendoza, Alexis Williams, Liam

McBain, Corey Antonio Rose, Jamal Michel, Jessica Placzek, Veralyn Williams, Fear, Flor-

ida, and the 1619 Project, NPR (Feb. 24, 2023, 5:13PM), https://www.npr.org/2023/02/22/

1158724309/fear-florida-and-the-1619-project.

See, e.g., Maureen Downey, We Shut Down Pools to Fight Diversity; Now It’s Librar-

ies, A

TLANTA

J.-C

ONST

. (Apr. 26, 2023), https://www.ajc.com/education/get-schooled-blog/

opinion-we-shut-down-pools-to-fight-diversity-now-its-libraries/FX6C5P2QZBES

LAYFPOITPLGG5I/.

Fall 2023] Envisioning Reparative Legal Pedagogies 69

of what role—if any—educational spaces can play in disrupting these

legacies of erasure through processes of truth and reconciliation in the

classroom.

How might educators not just interrupt harms but envi-

sion a future premised on healing from state violence and naming last-

ing inequities? It is from this question and with an eye toward

developments in reparative pedagogy beyond the law that this piece

begins. What role might legal educators play in joining national efforts

to redress injustice and to—at last—“properly acknowledge, memori-

alize, and be a catalyst for progress”?

In threading two complementary theoretical approaches to criti-

cal pedagogy, this Essay makes the case that “reparative” and “en-

gaged” pedagogical theories provide pathways for envisioning

pedagogical repair for the past, present, and future harms of U.S. legal

education. This, I assert, can best be conceptualized as the diverse but

joint efforts to forge what we might call “reparative legal pedagogies:”

practices and processes of atonement, healing, self-actualizing, and

reimagining that disrupt the normative underpinnings of traditional

legal education writ large. Despite differing language and theoretical

frameworks for critical,

social justice,

liberatory,

anti-racist,

and

disruptive legal pedagogies,

this Essay argues that sustained and

emergent efforts to radically reorient U.S. legal education from inside

See, e.g., Nicholas Biddle & Naomi Priest, The Importance of Reconciliation in Edu-

cation, A

. N

’

NIV

. C

. S

. R

. M

ETHODS

, May 2019, at i; James Miles, Teaching

History for Truth and Reconciliation: The Challenges and Opportunities of Narrativity,

Temporality, and Identity, 53 M

ILL

J. E

DUC

. 294 (2019).

H.R.J. Res. 19; S.J. Res. 6.

See, e.g., Chantal Thomas, Reloading the Canon: Thoughts on Critical Legal

Pedagogy, 92 U

NIV

. C

. L. R

. 955 (2021); Karl Klare, Teaching Local 1330—Reflections

on Critical Legal Pedagogy, 7 U

NBOUND

58 (2011).

See, e.g., Duncan Kennedy, The Social Justice Element in Legal Education in the

United States, 1 U

NBOUND

93 (2005); Rosa Castello, Incorporating Social Justice into the

Law School Curriculum with a Hybrid Doctrinal/Writing Course, 50 J. M

ARSHALL

L. R

221 (2017); Julie D. Lawton, Teaching Social Justice in Law Schools: Whose Morality Is It?,

50 I

. L. R

. 813 (2017); see Margaret Martin Barry, A. Rachel Camp, Margaret E.

Johnson & Catherine F. Klein, Teaching Social Justice Lawyering: Systematically Including

Community Legal Education in Law School Clinics, 18 C

LIN

. L. R

. 401 (2012).

See, e.g., Natsu Taylor Saito, A Pedagogy of Liberatory Belonging: Learning from

Charles R. Lawrence III, 44 U

NIV

. H

. L. R

. (forthcoming Spring 2022); Hallie Jay

Pope, Liberatory legal design and radical imagination (Design Research Society Confer-

ence Papers, 2022), https://doi.org/10.21606/drs.2022.689.

See, e.g., Norrinda Brown Hayat, Freedom Pedagogy: Toward Teaching Antiracist

Clinics, 28 C

LIN

. L. R

. 149 (2021); see Anne D. Gordon, Cleaning up Our Own Houses:

Creating Anti-Racist Clinical Programs, 29 C

LIN

. L. R

. 49 (2022); Dermot Groome, Edu-

cating Antiracist Lawyers: The Race and the Equal Protection of the Laws Program, 23

UTGERS

ACE

& L. R

. 65 (2021).

See, e.g., Christina John, Russell G. Pearce, Aundray Jermaine Archer, Sarah Me-

dina Camiscoli, Aron Pines, Maryam Salmanova, and Vira Tarnavska, Subversive Legal

Education: Reformist Steps Toward Abolitionist Visions, 90 F

ORDHAM

L. R

. 2089 (2022)

[hereinafter Subversive Legal Education].

70 CLINICAL LAW REVIEW [Vol. 30:65

and beyond the clinical legal context have already taken up this pro-

ject and can all be understood under a unifying lens of repair.

Reflecting on my own experiences as a law student leader and as

a new legal educator, this Essay engages literatures from within/with-

out the law to aid in naming the collective efforts of movements to

transform the aim and possibilities of U.S. legal education. A threaded

theory and practice—or praxis—of pedagogical repair links these dis-

tinct efforts and provides a roadmap for reimagining the transforma-

tive and reparative capacity of law schools, for disrupting histories and

realities of harm. By naming our profession’s negligent pedagogical

practices and processes of lawyer socialization, this Essay joins the

scholarship-activism of fellow liberatory writers in envisioning the

unimagining and remediation of educational harm at multiple levels.

This Essay proceeds in three parts. Section I begins by position-

ing legal pedagogy in relation to the pedagogies of truth and healing

that fellow disciplines have taken up to facilitate repair. Formations

across clinical legal scholarships and nascent developments in repara-

tive pedagogies outside the law pose serious implications for the re-

imaginative work of U.S. legal education. To radically reconfigure the

underpinnings and aims of legal education, all of legal education—not

just clinicians—must grapple with dimensions of truth and healing in

order to realize repair.

Section II investigates how a frame of repair might manifest

within legal education by reflecting, first, on the student organizing

work that brings me to this conversation of pedagogical care. In look-

ing to the ABA accreditation standards that I and fellow law student

leaders invoked in our organizing work, this piece seeks to understand

what a negligence-type “standard of care” from legal educators might

look like. This piece by no means suggests that our profession (or any

educational space) would benefit from a robust tort regime to police

and surveil the work of educators. Instead, I use the framework of

legal negligence to deeply and meaningfully interrogate the ways that

legal educators in particular have advanced dangerous and known

pedagogical harms that materially threaten the well-being of the

country.

Finally, Section III explores several potential dimensions of re-

pair in legal pedagogy by assessing the multiple, intersecting levels of

harm that inhere in U.S. legal education’s past, present, and futures.

I. P

OSITIONING

EPARATIVE

EDAGOGIES

At the start of 2023, I participated in a panel for the American

Association of Law Schools’ annual meeting, entitled New Begin-

Fall 2023] Envisioning Reparative Legal Pedagogies 71

nings.

The goal of this space was to reflect on concrete classroom

practices that had proven successful for each panelist, while providing

tips for fellow legal educators on how to enhance our pedagogical

practices. I joined the other panelists in remembering and reflecting

upon the classroom spaces we had created—the ones that worked, the

ones that didn’t, and all the ways that we had adapted.

The conference room was teeming with interest and, truthfully, I

was more nervous than I’d care to admit, as a first-year legal educator.

I’m a storyteller and facilitator of many years, but the formality of the

space (and this profession) left me waiting with bated breath, pre-

pared for an attendee to discover my unqualified-ness at any point in

the session.

At one point, during our question-and-answer, we received an au-

dience question about how to best incorporate “current events” into

the law school classroom. As a then-teaching fellow to a clinic cen-

tered on the study of Critical Race Theory

and as a lifelong subject

to its teachings,

I had a lot of thoughts on the topic. I began my

remarks by saying, “I’m not sure who needs to hear this in the space,

but trauma is not a teaching tool.” I went on to discuss the importance

of centering history and pedagogical intention in our instruction of the

law, underscoring the psychological and emotional roadblock to learn-

ing we introduce when we haphazardly stitch together violent class-

room materials in the name of being “current.” What is your goal, I

implored, in introducing harmful content, and how can we orient our

classrooms by beginning from a presumption that our legal systems

produce harm?

New Law Professors, A

SSOC

. A

. L. S

CHS

., https://memberaccess.aals.org/eweb/Dy-

namicPage.aspx?webcode=&ho]SesDetails&ses_key=1f309646-f250-4d57-ae47-

4e2d0013cf2a (last visited Jun. 12, 2023).

The Racial Equity in Education Law and Policy Clinic at Georgetown University

Law Center employs a lens of Critical Race Theory to engage student attorneys “in policy

advocacy on behalf of clients to advance racial equity in education.” Our Work, Geo. L.,

https://www.law.georgetown.edu/experiential-learning/clinics/our-clinics/racial-equity-in-

education-law-and-policy-clinic/ (last visited Jun. 12, 2023).

U.S. journalist Clarence Page employs this language in their work, Showing My

Color, to describe the ways that the very vulnerability of potential racism in this country

“makes us forever subject to it.“ C

LARENCE

AGE

, S

HOWING

OLOR

: I

MPOLITE

S-

SAYS ON

ACE IN

MERICA

60 (1996).

Recorded and lived experiences continue to identify the ways that U.S. legal sys-

tems—including legal education—produce harmful outcomes for historically minoritized

and marginalized individuals. See, e.g., Aysha Pamukcu & Angela P. Harris, Health Justice

and the Criminal Legal System: From Reform to Transformation, H

ARV

. L. P

ETRIE

-F

LOM

. (Sept. 10, 2021), https://blog.petrieflom.law.harvard.edu/2021/09/10/health-justice-

criminal-legal-system/ (exploring exposure to the U.S. criminal legal system as a social de-

terminant of health for Black, brown, and Indigenous communities); John Lande, The Law

Can Be Hazardous to Your Health,

INDISPUTABLY

(Nov. 4, 2019), http://indisputably.org/

2019/11/the-law-can-be-hazardous-to-your-health/; see also Lawrence S. Krieger, Institu-

72 CLINICAL LAW REVIEW [Vol. 30:65

As I’ve processed my feelings from this session, I’ve come to real-

ize how deeply healing it was to address this room of legal educators

as a freshly graduated educator myself. I was granted the time and

space to wonder all the things I wish I could have said to my own law

school educators—to address all the harms they had ignored and to

have my perspectives on legal instruction be taken with a degree of

seriousness. It was a type of healing that I’m sure could not have

taken place in any other setting; it was transformative. These at-

tendees were not my own past professors but releasing the harm I’d

navigated in my journey became tied in that moment to the group’s

collective reworking of what the legal profession could be. My repair

was grounded in communal and iterative processes of reimagining.

Since my participation in this panel, I’ve worked to understand

and name this phenomenon. The closest that I’ve come to fully captur-

ing the transformative and liberatory nature of this space are what

critical scholars beyond the law refer to as “reparative” pedagogies

and what Black feminist writer bell hooks envisioned as a practice of

“engaged” pedagogy.

To best frame this conversation and our discus-

sion of repair in the classroom, let us begin with the histories that

bring all of us to the classroom—the ones that insist on being heard

and that define our current profession.

A. Envisioning Repair In/From Legal Education

For 150 years now, legal theorists have sought to reimagine the

pedagogical practices and potential of U.S. legal education (e.g., the

realists,

Critical Legal Studies proponents,

Critical Race Theo-

rists,

and their respective CRT-sub-fields,

legal abolitionists

). In-

tional Denial About the Dark Side of Law School, and Fresh Empirical Guidance for Con-

structively Breaking the Silence, 52 J. L

EGAL

DUC

. 112 (2002).

Infra Section I.B.1.

Infra Section I.B.2.

See, e.g., Katherine R. Kruse, Getting Real about Legal Realism, New Legal Realism,

and Clinical Legal Education, 56 N.Y. L. S

. L. R

. 659, 660 (2011) (reviewing calls

from the U.S. Legal Realist movement for the creation of clinical legal education as a

means of advancing student training of the “law in action”).

See, e.g., D

UNCAN

ENNEDY

, The Critique of Rights in Critical Legal Studies, in L

EFT

EGALISM

EFT

RITIQUE

179 (Wendy Brown, Janet Halley & Duncan Kennedy eds.,

2002); Pierre Schlag, The Anxiety of the Law Student at the Socratic Impasse - An Essay on

Reductionism in Legal Education, 31 N.Y.U. R

. L. & S

. C

HANGE

575 (2007).

See, e.g., Kimberle Williams Crenshaw, Toward a Race-Conscious Pedagogy in Legal

Education, 11 N

’

LACK

L.J. 1 (1988); see Frances Lee Ansley, Race and the Core

Curriculum in Legal Education, 79 C

ALIF

. L. R

. 1511 (1991); Judith G. Greenberg, Eras-

ing Race from Legal Education, 28 U. M

ICH

. J.L. R

EFORM

51 (1994).

See, e.g., Swethaa S. Ballakrishnen, Law School as Straight Space, 91 F

ORDHAM

. 1113 (2023); Christina Payne-Tsoupros, A Starting Point for Disability Justice in Le-

gal Education, 6 J. N

’

ONF

. D

ISABILITY

UST

. L. E

DUC

. 165 (2020).

See, e.g., Amanda Alexander, Nurturing Freedom Dreams: An Approach to Move-

Fall 2023] Envisioning Reparative Legal Pedagogies 73

deed, our articulations of legal pedagogy have continually diverged

from their colonial origins to become critical of oppressive systems,

anti-racist in approach,

socially just in their goals,

subversive to

hegemony,

aligned with social movements,

and prefigurative of

utopias.

In situating these distinct genealogies of legal pedagogy, we

might say that they share a unifying tradition of “pedagogical dream-

ing,” or of joining the work of social movements in envisioning libera-

tion from the very realities and institutions in which we are situated.

This kaleidoscope of legal scholarships, however, highlights the

ways that legal education’s dreaming has tended to focus on the form

and substance

of our instruction—not always its purpose.

After all,

what is the purpose of U.S. legal education? The answer, I suspect,

largely depends on who you ask.

But questions such as these dodge

the deeper truth that formal U.S. legal education was not intended

ment Lawyering in the Black Lives Matter Era, 5 H

. H

. & C

. R

. L. R

. 101

(2021); Marbre Stahly-Butts & Amna A. Akbar, Reforms for Radicals? An Abolitionist

Framework, 68 UCLA L. R

. 1544 (2022); Jamelia Morgan, Lawyering for Abolitionist

Movements, 53 C

ONN

. L. R

. 605 (2021).

See sources cited supra note 22.

See sources cited supra note 25.

See sources cited supra note 23.

Subversive Legal Education, supra note 26.

See, e.g., Alexander, supra note 37.

See, e.g., Sameer M. Ashar, Pedagogy of Prefiguration, 132 Y

ALE

L.J. F

ORUM

869,

https://www.yalelawjournal.org/forum/pedagogy-of-prefiguration.

See infra discussion of reparative pedagogies Section I.B1; Subversive Legal Educa-

tion, supra note 26.

We might say that one bucket of scholarship and practice has interrogated “how” we

teach law students from a practical and, sometimes, critical perspective. See, e.g., Ronald

Tyler, The First Thing We Do, Let’s Heal All the Law Students: Incorporating Self-Care into

a Criminal Defense Clinic, 21 B

ERKELEY

J. C

RIM

. L. 1 (2016). Another noteworthy forma-

tion of work has grappled with “what” we teach law students. See, e.g., Alexander, supra

note 37; Crenshaw, supra note 35; see supra notes 22-26. These are by no means distinct

categories of scholarship and it would be na¨ıve to assume that the socio-political manifesta-

tions of one (form) does not inform the other (substance) in overlapping ways. See C

RITI-

CAL

ACE

HEORY

: T

RITINGS

HAT

ORMED

OVEMENT

xiii (Kimberl ´e

Crenshaw, Neil Gotanda, Gary Peller, and Kendall Thomas eds., 1995) [hereinafter C

RITI-

CAL

ACE

HEORY

] (“Critical Race Theory embraces a movement of left scholars, most of

them scholars of color, situated in law schools, whose work challenges the ways in which

race and racial power are constructed and represented in American legal culture and, more

generally, in American society as a whole”).

See, e.g., Gerald P. L ´opez, Transform – Don’t Just Tinker with – Legal Education, 23

LIN

. L. R

. 471 (2017); Wayne S. Hyatt, A Lawyer’s Lament: Law Schools and the Pro-

fession of Law, 60 V

AND

. L. R

. 385 (2007); Bethany Rubin Henderson, Asking the Lost

Question: What Is the Purpose of Law School?, 53 J. L

EGAL

DUC

. 48 (2003).

See, e.g., Etienne C. Toussaint, The Purpose of Legal Education, 111 C

. L. R

. 1,

9 (2023) (“the study of the way legal systems and political institutions further racism, eco-

nomic oppression, or social injustice must be viewed as endemic to the purpose of legal

education”).

74 CLINICAL LAW REVIEW [Vol. 30:65

for, or to serve, all peoples.

To best assess the current purpose of

legal education, we must acknowledge that settler law

and its

gatekeeping

are inherently violent. Without a sobering and honest

account of the ways that lawyering continues to be a protected prac-

tice of legal power,

the exclusionary law school journey has little

meaning to our profession. After all, why would law school be so diffi-

cult if the law and legal power were truly intended to be accessible to

all? Without history, the LSAT, traditional 1L exams, and state-level

bar exams are normalized as discriminatory mainstays of our profes-

sion

—rather than aspects of licensure that might be otherwise be

changed and adapted with the times. More plainly put: we do harm

because it’s what we’ve always done.

1. Reimagining the Purpose of Legal Education

As a professional degree program, the juris doctor and our formal

training of U.S. law students remains roughly aligned with the subject

matter of the bar exam.

The required doctrinal courses that our stu-

See, e.g., Christopher Williams, Gatekeeping the Profession, 26 C

ARDOZO

J. E

QUAL

. & S

. J

UST

. 171 (2020) (exploring the politics of racial and social stratification that

serve as the infrastructure of U.S. legal education); Emma Plante, “What, like it’s hard?”:

The Systemic Barriers to Law School Applications, N

. U

NIV

. P

. R

. (Jan. 27, 2022),

https://nupoliticalreview.org/2022/01/27/what-like-its-hard-the-systemic-barriers-to-law-

school-applications/.

Conor Friedersdorf, Enforcing the Law Is Inherently Violent, T

TLANTIC

(June

27, 2016), https://www.theatlantic.com/politics/archive/2016/06/enforcing-the-law-is-inher-

ently-violent/488828/ (quoting Yale law professor Stephen L. Carter: “Law professors and

lawyers instinctively shy away from considering the problem of law’s violence. Every law is

violent. We try not to think about this, but we should. On the first day of law school, I tell

my Contracts students never to argue for invoking the power of law except in a cause for

which they are willing to kill. They are suitably astonished, and often annoyed. But I point

out that even a breach of contract requires a judicial remedy; and if the breacher will not

pay damages, the sheriff will sequester his house and goods; and if he resists the forced sale

of his property, the sheriff might have to shoot him”) (emphasis added); but see Douglas

NeJaime, Cause Lawyers Inside the State, 81 F

ORDHAM

L. R

. 649 (2013).

Underpinning the modern bar exam are historical accounts of the American Bar

Association’s desire to keep “pure the Anglo-Saxon race.” See, e.g., Lauren Hutton-Work

& Rae Guyse, Requiring a Bar Exam in 2020 Perpetuates Systemic Inequities in Legal Sys-

tem, A

PPEAL

(Jul. 6, 2020), https://theappeal.org/2020-bar-exam-coronavirus-inequities-le-

gal-system/; Dan Subotnik, Does Testing = Race Discrimination?: Ricci, the Bar Exam, the

LSAT, and the Challenge to Learning, 8 U. M

ASS

. L. R

. 332, 365 (2013); see generally

Daria Roithmayr, Deconstructing the Distinction Between Bias and Merit, 10 L

AZA

L.J.

363, 396 (1998) (quoting J

EROLD

S. A

UERBACH

, U

NEQUAL

USTICE

: L

AWYERS AND

O-

CIAL

HANGE IN

ODERN

MERICA

114 (1976) (citation omitted)).

See, e.g., Antonio Coronado, Divine Injustice: Myths of Good Lawyers & Other Le-

gal Fictions, 14 G

. J.L. & M

. C

RIT

. R

ACE

ERSP

. 107, 124-27 (2023) (exploring the

role of gatekeeping within the U.S. legal profession).

See sources cited supra note 50.

See Emmeline Paulette Reeves, Teaching to the Test: The Incorporation of Elements

of Bar Exam Preparation in Legal Education, 64 J. L

EGAL

DUC

. 645 (2015); Joan How-

arth, Teaching in the Shadow of the Bar, 31 U.S.F. L. R

. 927 (1997).

Fall 2023] Envisioning Reparative Legal Pedagogies 75

dents take (e.g., Civil Procedure, Constitutional Law, Property, Con-

tracts, Torts, Criminal Law, Legal Research and Writing, Evidence,

and Professional Responsibility) correspond to core aspects of state

bar exams across the country. While significant variance exists,

this

generalization best describes the current triadic relationship between

U.S. law schools, bar authorities, and legal practice. From 1L up until

a student’s preparation for the bar exam, law schools reinforce the

notion that one’s bar passage is central to their journey into the

profession.

To be sure, this configuration has immediate, recorded, and mate-

rial implications for the practice of law, namely for our capacity to

serve communities and be aligned with movements for liberation.

Hardly enough attention, though, has been paid to the educational

consequences of our bar-serving pedagogy.

What does it mean for

our profession that law school course syllabi were not required to in-

clude “learning objectives, outcomes, and assessments” until 2016-

See, e.g., Curriculum B (Section 3), G

. L., https://curriculum.law.georgetown.edu/

jd/curriculum-b-section-3/ (last visited June 12, 2023); see Morenike Saula, Crisis-Induced

Innovation in U.S. Legal Education, 69 J.L. E

DUC

. 689 (2020); Deborah L. Rhode, Legal

Education: Rethinking the Problem, Reimagining the Reforms, 40 P

EPP

. L. R

. 437 (2013);

Nancy Vettorello & Beth Hirschfelder Wilensky, Reimagining Legal Education: Incorpo-

rating Live-Client Work into the First-Year Curriculum, 8 M

ICH

. B. J. 56 (2017).

The normative infrastructure of U.S. legal education has had a profoundly harmful

impact on the mental, physical, and emotional well-being of students. As confirmed by a

2022 report from the American University Washington College of Law, U.S. law students

are not okay. In their national study of 5,400 of U.S. law students, researchers found that

18% of student participants reported a diagnosis of depression since starting law school,

68% reported needing help with their emotional or mental health in the prior year, 22%

reported a diagnosis of anxiety since beginning their journey into legal education, and 11%

reported having experienced suicidal ideation in their prior year alone. See David Jaffe,

Katherine M. Bender & Jerome Organ, “It Is Okay to Not Be Okay”: The 2021 Survey of

Law Student Well-Being, 60 U. L

OUISVILLE

L. R

. 441, 463-467 (2022). Additionally,

scholarship underscores the ways that traditional U.S. legal pedagogy does not prepare

students for movement work. See, e.g., Amna A. Akbar, Toward a Radical Imagination of

Law, 93 N.Y.U. L. R

. 405 (2018); Alexander, supra note 37; Touissant, supra note 47;

John Bliss, From Idealists to Hired Guns: An Empirical Analysis of Public Interest Drift in

Law School, 51 U.C.D. L. R

. 1973 (2018); Howard S. Erlanger & Douglas A. Klegon,

Socialization Effects of Professional School - The Law School Experience and Student Ori-

entations to Public Interest Concerns, 13 L

& S

’

. 11 (1978) (finding that law

student socialization at the University of Wisconsin Law School emphasized “traditional

legal forums, . . . at the expense of other, less traditional modes of practice”).

See, e.g., Antonio Coronado, HTTPS://404-Error: The Continued Crash of the Legal

Industry, N

. U.L. R

. F

ORUM

(Sept. 4, 2020), https://nulronlineforum.wordpress.com/

2020/09/04/https-404-error-the-continued-crash-of-the-legal-industry/ (“The failures of our

model of legal education as mirrored across the industry have never been more transpar-

ent, bursting at the seams with calls for accountability and reflection on the law’s complic-

ity in maintaining systemic oppression. As a BIPOC law student, I am frequently forced to

wonder: ‘Who is this model for—who does this model of legal education serve?’ But the

answer has always been clear”); Touissant, supra note 47, at 15-21; see also Russell L.

Weaver, Langdell’s Legacy: Living with the Case Method, 36 V

ILL

. L. R

. 517 (1991).

76 CLINICAL LAW REVIEW [Vol. 30:65

2017?

What does it mean that racial equity and well-being are only

now entering the law’s lexicon of licensure?

From my personal and

political position as a multiply marginalized legal educator, as a recent

bar examinee, and as someone aligned with the work of movements to

realize liberation, I’m often left with more questions than answers.

Of one thing, however, I’m most certain. Legal pedagogy, not un-

like the legal precedents of our lectures, is tethered in time to the past.

It is bound up in the colonial dreams of its founding architects and the

present pedagogical dreams of its inheritors—a dueling past-present

that we all inhabit. In line with this conclusion, countless legal scholars

before me have noted the ways that traditional legal pedagogy is nor-

matively grounded in perspectivelessness

and otherizing

as linked

practices of white supremacy within the law.

Law student move-

ments have equally drawn attention to the legacies of structural and

pedagogical violence that define our law school experiences.

As a

See Laura M. Padilla, Whoosh - Declining Law School Applications and Entering

Credentials: Responding with Pivot Pedagogy, 39 U. L

ERNE

L. R

. 1, 13 (2017) (citing

Managing Director’s Guidance Memo: Standards, Section of Legal Education and Admis-

sions to the Bar (June 2015) (Mem. at 301-02, 314-15)).

Here, I reference February 2022 revisions to Standards 303(b) and (c), concerning

law school curriculum under the ABA Standards and Rules of Procedure for Approval of

Law Schools. The revised standards place an explicit emphasis on the inclusion of curricu-

lum that fosters professional identity development, including “well-being practices consid-

ered foundational to successful legal practice,” and education on “bias, cross-cultural

competency, and racism.” ABA, Revisions to the 2021-2022 ABA Standards and Rules of

Procedure for Approval of Law Schools 1, 2 (2022).

See Crenshaw, supra note 35, at 2 (“While it seems relatively straightforward that

objects, issues, and other phenomena are interpreted from the vantage point of the ob-

server, many law classes are conducted as though it is possible to create, weigh, and evalu-

ate rules and arguments in ways that neither reflect nor privilege any particular perspective

or world view”).

See, e.g., Sanford Levinson, Identifying the Jewish Lawyer: Reflections on the Con-

struction of Professional Identity, 14 C

ARDOZO

L. R

. 1577, 1578 (1992) (discussing the

ways that U.S. legal education socializes law students to engage in a “bleaching out” of

their identities); Russell G. Pearce, White Lawyering: Rethinking Race, Lawyer Identity,

and Rule of Law, 73 F

ORDHAM

L. R

. 2081 (2005).

See, e.g., Doron Samuel-Siegel, Reckoning with Structural Racism in Legal Educa-

tion: Methods toward a Pedagogy of Antiracism, 29 C

ARDOZO

J. E

QUAL

. & S

. J

UST

1 (2022); Ballakrishnen supra note 36; Peter Goodrich & Linda G. Mills, The Law of White

Spaces: Race, Culture, and Legal Education, 51 J. L

EGAL

DUC

. 15 (2001); see also Bennett

Capers, The Law School as a White Space, 106 M

INN

. L. R

. 7, 31 (2021) (“While [race-

conscious curricular] endeavors are important, the argument I make here is somewhat dif-

ferent, and perhaps broader. The problem is not that race is absent from the classroom. It

is that the whiteness of the curriculum goes unsaid and unremarked upon. It is like the

whiteness of the portraits that line law school hallways, or the whiteness of Lady Justice.

The whiteness itself is too often invisible”).

See, e.g., Calling All Students Past, Present, and Future: Join in Demanding Change at

Northeastern University School of Law, C

ALL TO

CTION

– D

EMANDING

HANGE AT

NUSL (2021), https://bit.ly/DemandingNUSLChange [hereinafter C

ALL TO

CTION

]; A

Collective of DisOrientation Student Organizers, DisOrientation: A Call for Self-Preserva-

Fall 2023] Envisioning Reparative Legal Pedagogies 77

law student and now-educator, this has included:

• The disparate burdening of marginalized and minoritized law

students, faculty, and staff alike with the onus of changemak-

ing to legal education’s white supremacist foundations and

lasting curricula.

Countless scholars have written on this is-

sue, and this piece adds to the scholarship in this area by nam-

ing the ways that historically excluded and minoritized

members of the legal profession have taken up the mantle of

mending a profession that was not built for us.

• The systematic absence of cases, classes, or lessons that con-

textualize violent legal institutions against the violent social

realities that produced them. This, in turn, engenders the

above-mentioned phenomena, wherein cases, law, and class

may exist in a falsely neutral analytical “white” space.

• The still-dominant testimony model of the Socratic method,

tion, H

ARV

. L. R

ECORD

(Oct. 7, 2019), https://hlrecord.org/disorientation-a-call-for-self-

preservation/; Richard Delgado, Liberal McCarthyism and the Origins of Critical Race The-

ory, 94 I

OWA

L. R

. 1505 (2009) (overviewing the distinct but convergent student move-

ments that serve as CRT’s origin story).

Antonio Coronado, “Report on the State of BIPOC at Northeastern University

School of Law,” Commissioned by the Committee Against Institutional Racism at North-

eastern University School of Law (Sept. 2020), bit.ly/CAIR-Report [hereinafter CAIR Re-

port]; see also Coronado, supra, note 56 (“It is irresponsible and devoid of understanding

to ask BIPOC to enter the war room that is whiteness and to make white supremacist

institutions less violent”).

Of note, legal historian Robert Stevens recounts the ways that modern law schools

sought to attract young, white men in the middle of the 19th Century by appealing to the

ways that U.S. legal education could prepare them to inherit estates, property, and control

of the settler-nation’s commerce in the lead-up to the American Civil War. R

OBERT

TE-

VENS

, L

CHOOL

: L

EGAL

DUCATION IN

MERICA FROM THE

1850

S TO THE

1980

(2001); see also sources cited supra note 50. This historical trend necessarily informs the

current profession.

Capers, supra, note 61, at 58 (“We live in a world built on racialized hierarchies and

inequality, and much of the reason we live in such a world is because of what we call the

law, from Slave Codes to the enshrinement of slavery in the Constitution to the doctrine of

manifest destiny to anti-miscegenation laws to the Chinese Exclusion Act to zoning rules

to qualified immunity to racialized highway construction to so much more). For a discus-

sion of the ways that some scholar-educators are working to “stop citing slavery” in their

work and curricula, Diane J. Kemker, Three Steps to Stop Citing Slavery, 71 J. L

EGAL

348 (2022); see Justin Simard, Citing Slavery, 72 S

TAN

. L. R

. 79 (2020).

See, e.g., Crenshaw, supra, footnote 35 at 6 (“An equally stressful, but conceptually

more obscure experience is what I call subjectification. This is experienced by minority

students when, after learning to leave their race at the door, their racial identities are unex-

pectedly dragged into the classroom by their instructor to illustrate a point or to provide

the basis for a command performance of ‘show and tell.’ The eyes of the class are suddenly

fixed upon the minority student who is then expected to offer some sort of minority

‘testimony’”).

78 CLINICAL LAW REVIEW [Vol. 30:65

whereby law students are expected to grapple with questions

of life, liberty, and law—personal ones that are disparately

felt and navigated based on power, position, and place—with-

out transparent and routine pedagogical intention in the crea-

tion of their educational space.

Ironically (and painfully), the very legal harms that many of us

entered law school to disrupt remain embedded and central to the

pedagogies we endure along our way to practice.

Both graduates and

current law student movements make it clear that U.S. law schools

have failed “to properly acknowledge, memorialize, and be a catalyst

for progress.”

Once again, we are reminded that healing cannot hap-

pen without meaningfully engaging our personal-political histories.

2. Locating the Limits of Law School

Buttressing our efforts to envision repair in/from legal education

as a site of lawyer socialization and social reproduction are the mate-

rial limitations of the profession. As numerous scholars before me

have noted, traditional reforms to U.S. legal education fall short in

realizing the potential of law schools as sites for liberatory change,

given the legal profession’s political economic order and position as

an apparatus of the state.

Accordingly, the question of what forms of

meaningful, lasting social change might derive in or from legal educa-

tion has been the subject of countless scholarship interventions to the

work of pedagogical repair.

Indeed, many prior liberatory legal scholarships have emphasized

the need to build a movement for radical transformation within legal

academia while simultaneously accounting for the many careers, cur-

As a law student leader, my work in coalition with other student organizers sought to

name the contradiction of “social justice” values espoused by the neoliberal institution we

attended versus the pedagogical harm that they dispensed. See C

ALL TO

CTION

, supra

note 62, at 4 (“We write to express our collective frustration, disappointment, and anger

with the lack of change we have witnessed during our time at [Northeastern University

School of Law]. The mission to reimagine legal education serves as the very bedrock of

Northeastern as a law school—for many of us, it is the very reason we are now students

here. Yet, as NUSL receives praise for its place as “number one” in experiential learning,

we’re left to wonder: Experiencing what exactly? Organizing by NUSL students who are

Black, Indigenous, and People of Color (BIPOC) has consistently shown that the answer is

inequity. The experiential education that we advertise is one of disparate experiences, dis-

parate support, disparate [course] placements, disparate resources, disparate treatment,

disparate training, and disparate forms of violence”).

H.R.J. Res. 19; S.J. Res. 6.

See, e.g., Duncan Kennedy, Legal Education and the Reproduction of Hierarchy, 32

J. L

EGAL

DUC

. 591, 601 (1982); Subversive Legal Education, supra note 26; see Akbar,

supra note 55; L

OUIS

LTHUSSER

, Ideology and Ideological State Apparatuses (Notes To-

wards an Investigation), in L

ENIN AND

HILOSOPHY AND

THER

SSAYS

(Ben Brewster

trans., New York and London: Monthly Review Press 1971) (1970).

Fall 2023] Envisioning Reparative Legal Pedagogies 79

ricula, relations, hierarchies, institutions, influences, and realities of

the legal profession that hinder its own reimagining. Across these

scholarships, a common practice and belief in movement-based “uto-

pia” locates the liberatory potential of any form of legal work beyond

the current manifestation of the law; these works are premised on fu-

ture worlds that do not yet exist and that are foregrounded by the end

of our present oppressive regimes, including modern legal educa-

tion.

They share overlapping visions of snapping the structural

synapses of the modern law school and breaking the settler logics of

legal education, each as preconditions for our freedom.

Here, with the dream of utopic classrooms in mind, enters the

promise of pedagogical repair. By looking to developments beyond

the law to advance educational repair, this piece seeks to extend de-

cades of liberatory legal scholarship and experiment with new steps

toward freedom by examining the role that theories of “reparative”

and “engaged”

pedagogies might play in realizing utopic futures in/

from legal education. As evidenced by recent and sustained efforts by

our colleagues beyond the law to engage in pedagogical dreaming,

traditional U.S. legal education has much to learn from the work of

fellow liberatory instructors in resituating the classroom as a site of

healing, not harm.

The following section explores these forms of scholarship-activ-

ism beyond the law, with an eye toward the ways that they might aid

us in reimagining the purpose and potential of U.S. legal education.

B. Looking Beyond the Law

Before starting law school—or, as I often joke with my partner,

what feels like three lives ago—I worked as an academic skills tutor

for students at my undergraduate institution. Through our institution’s

This lineage spans countless scholarships and includes those of Amna Akbar,

Amanda Alexander, Sameer Ashar, Bennett Capers, Norrinda Brown Hayat, Duncan

Kennedy, Russell Pearce, and Etienne C. Toussaint, as non-exhaustive examples. See, e.g.,

Akbar, supra note 55; Alexander, supra note 37; Ashar, supra note 43; Capers, supra note

61; Hayat, supra, note 25; Kennedy, supra note 69; Pearce, supra note 60; Touissant, supra

note 47; see also Prefiguring Border Justice: Interview with Harsha Walia, 6 C

RITICAL

TH-

NIC

TUD

., Spring 2020, https://manifold.umn.edu/read/prefiguring-border-justice-inter-

view-with-harsha-walia (“prefiguration is primarily an organizing ethic stemming from

feminist and trans and disability justice communities of care. The entire logic of capitalism

and colonialism, in addition to being extractive and exploitative, is to break communal

ways of living, to sever ties to the land especially for Indigenous communities, to foreclose

kinship as a political process and instead generate competitive, individualistic, atomized

ways of relating to one another. Prefiguration, then, is a communal ethic: everything that I

think and say comes not from me as one individual organizer or writer but as one person in

a constellation of comrades and mentors”).

See infra Section I.B.1.

See infra Section I.B.2.

80 CLINICAL LAW REVIEW [Vol. 30:65

tutoring center, I provided workshop-based and individual peer sup-

port to students on a myriad of topics, ranging from students’ time

management to their exam prep, test-taking strategies, distance learn-

ing, tending to well-being, and semester goal setting.

I had a general

understanding of how to hold intentional pedagogical spaces for stu-

dents, and this knowledge was only further enriched by my tutoring of

English as an Additional Language (EAL) learners and my facilita-

tion of an experiential learning course affiliated with the Latinx stu-

dent cultural center where I worked as a graduate student. (Two lives

ago,) I’d had the opportunity to support a law professor and dear

mentor in co-developing materials for a tenants’ rights community ed-

ucation initiative. In short: I had taught before law school, and they

were some of the greatest experiences of my life thus far. Through it

all, I learned that I loved practicing critical, experiential, and intersec-

tional pedagogy, and these experiences allowed me to create the space

for deep inquiry I wished I’d had from past educators.

You might imagine my surprise and questions, then, upon en-

countering the form, the substance, and the (very often opaque) goals

of U.S. legal education. Why were we teaching cases

instead of the

generally applicable rules and formations of a given content area (as

the bar review companies do

)? Because we always have. Why did I

need to make an “outline”

in order for my exam prep to be valid?

Because we always have. Why were these 1L courses the chosen canon

of a profession that concerns all areas of life? Why were housing law,

Academic Skills, THINK TANK, https://thinktank.arizona.edu/academic-skills/re-

sources (last visited June 13, 2023).

See sources cited supra note 56; David Segal, What They Don’t Teach Law Students:

Lawyering, N.Y. Times (Nov. 19, 2011), https://www.nytimes.com/2011/11/20/business/after

-law-school-associates-learn-to-be-lawyers.html.

There is a paucity of legal scholarship that addresses the role played and content

provided by commercial bar review companies in the U.S. While some scholars have

looked to bar review companies in the context of reforming normative legal education,

none seem to address what exactly it is that bar companies do as a matter of legal

pedagogy. See, e.g., Mario W. Mainero, We Should Not Rely on Commercial Bar Reviews

to Do Our Job: Why Labor-Intensive Comprehensive Bar Examination Preparation Can

and Should Be a Part of the Law School Mission, 19 C

HAP

. L. R

. 545 (2016); William K.

S. Wang, The Restructuring of Legal Education Along Functional Lines, 17 J. C

ONTEMP

EGAL

SSUES

331 (2008). From my own anecdotal experience with a bar prep company

and with sitting for the New York bar exam, case law was not central.

See, e.g., Outlines: They Can Save or Break You in Law School, Thomas Reuters,

https://lawschool.thomsonreuters.com/survival-guide/outlines-they-can-save-or-break-you/

(last visited June 13, 2023); Jennifer M. Cooper, Smarter Law Learning: Using Cognitive

Science to Maximize Law Learning, 44 C

. U. L. R

. 551, 587 (2016) (“While most

professors do not teach outlining techniques, most professors do expect students will out-

line their course materials by extracting rules from cases read for class, synthesizing rules

from related cases, breaking rules into elements, including examples, explanations, and

policies”).

Fall 2023] Envisioning Reparative Legal Pedagogies 81

consumer protection and fraud, employment law, civil and social

rights, and education law not made doctrinal and required? Because

Langdell and the bar (I suppose), but equally because money and our

country’s values (I know). Law school was “disorienting” because, as

many before me have identified,

it didn’t make sense in my lived and

learned experiences as a multiply marginalized, interdisciplinary stu-

dent-educator. I didn’t grow up knowing any lawyers, and the law felt

like a strange space,

a liminal one to be sure, that was neither pre-

sent nor personal. And it was this distant and impersonal experience

that informed my decision to become a legal educator. I needed to

affirm for myself and for those after me that this experience was not a

fault or “deficit”

of our own, but that it was the visible and violent

institutional architecture of a profession sketched from colonial

dreams. I did not need to change; legal pedagogy did.

Even if we accept that legal pedagogy must change—this already

being a bridge too far for many of my colleagues in the law, what and

how might we change to meet the realities that our centuries-old ped-

agogies now inhabit and the students that our lessons were never in-

tended to serve? To this, I propose a frame of “reparative legal

pedagogy.” In no adjudicated case, publicly available legal scholar-

ship, or published course materials is there such mention of a legal

pedagogy that aims in scope or focus to be reparative.

The aim of

this piece, then, is to disrupt this silence. Through the forging of plu-

ralistic “reparative legal pedagogies,” ones that advance repair across

multiple, intersecting dimensions of educational harm, I join the

greater tradition of pedagogical dreaming in legal education by inter-

jecting a praxis of reparative pedagogy to normative discourses on the

purpose and potential of legal education. Reparative legal pedagogies,

I contend, thread the liberatory scholarship-practices that have

emerged in the clinical legal context as well as beyond the law to ad-

See A Collective of DisOrientation Student Organizers, supra note 62; Touissant,

supra note 47, at 5; DisOrientation, N

’

. G

UILD

, https://www.nlg.org/disorientation/

(last visited June 13, 2023).

See sources cited supra note 60 and 61 and accompanying text for an examination of

U.S. legal education as a racist, white, and straight space.

ICHARD

R. V

ALENCIA

, D

ISMANTLING

ONTEMPORARY

EFICIT

HINKING

: E

DU-

CATIONAL

HOUGHT AND

RACTICE

(2010) (exploring deficit thinking as a model of edu-

cation that pathologizes students based on racist and classist biases). I have previously

explored the way that law students are evaluated in their “fitness” to lawyer based on a

deficit metric of wielding falsely-objective, neutral forms of legal power. See Coronado,

supra note 51 at 150 (2023) (“To students: Fasten yourself to one another. Hold tight

against the currents that churn through augur pipelines. Know that it was never you, or

your lack of Latin, or your propensity for [legal] prophecy; it was always about divine

injustice”).

A simple search of HeinOnline, Google Scholar, and ResearchGate yielded zero ex-

act matches for any theoretical or analytical frameworks of “reparative legal pedagogy.”

82 CLINICAL LAW REVIEW [Vol. 30:65

dress the broader ideological and normative realities of legal educa-

tion. In making legal education reparative, we might aim to re-ground

our pedagogy, severing the hold that past harms have on legal educa-

tion by naming and healing from the histories that bring us here.

1. Practices of Truth

As seen in the fields of art studies,

film and media studies,

and

curriculum studies more broadly,

a frame of “reparative pedagogy”

has emerged outside legal academia to subvert the processes that pre-

sent certain curricula as canonic. As one scholar notes, a pedagogy of

reparations “recognizes and diagnoses our current pedagogies as ped-

agogies of occupation, where white supremacist . . . academic systems

enact a colonial and imperial occupation of thought.”

It demands a

form of “clear-eyed accountability” from educators for prior acts of

pedagogical harm as a means of envisioning other restorative fu-

tures.

Such repair, they contend, necessitates community accounta-

bility “from all of us” within academia.

Other critical scholars have described reparative curriculum as

“education’s shaky attempt to make lessons from terrible human his-

tory that cannot be saved, will not be redeemed, refuses to be forgot-

ten, struggles for articulation, and must be heard.”

By their account,

reparative curriculum makes no claim to authority or canon and, in-

stead, proposes subjective views to history through suppressed, collec-

tive versions of violence.

Such an approach closely parallels the legal

scholarship-activism of Critical Race Theory and its accompanying

practice of counter-storytelling.

First formalized by legal scholars

Mari Matsuda, Patricia Williams, Richard Delgado, and countless

others,

CRT’s core tenet of counter-storytelling undermines the heg-

See, e.g., Aliza Shvarts, Toward a Reparative Pedagogy: Art as Trigger, Art as Repair,

J. O

PEN

(Apr. 7, 2022), http://artjournal.collegeart.org/?p=16702.

See, e.g., Usha Iyer, A Pedagogy of Reparations: Notes Toward Repairing the Film

and Media Studies Curriculum, 8 F

EMINIST

EDIA

IST

. 181 (2022).

See, e.g., Aparna Mishra Tarc, Reparative Curriculum, 41 C

URRICULUM

NQUIRY

350

(2011).

Iyer, supra note 82, at 184.

Id. at 185.

Id.

Tarc, supra note 83, at 350.

Id. at 351.

Richard Delgado, Storytelling for Oppositionists and Others: A Plea for Narrative, 87

ICH

. L. R

. 2411 (1989).

Id.; R

ICHARD

ELGADO

& J

EAN

TEFANCIC

, C

RITICAL

ACE

HEORY

: T

UT-

TING

DGE

(3rd ed. 2013); Racquel Armstrong & Cynthia Tyson, Say Their Name: Early

Critical Race Theory Scholars and Their Place in the Debate, D

IVERSE

: I

SSUES IN

IGHER

DUC

. (Jan. 31, 2022), https://www.diverseeducation.com/opinion/article/15287996/say-

their-name-early-critical-race-theory-scholars-and-their-place-in-the-debate (extending the

Fall 2023] Envisioning Reparative Legal Pedagogies 83

emonic assumptions of the law through processes of truth-telling by

the forever subjects (but seldom drivers) of the law.

Despite critique

from legal institutionalists,

counter-storytelling has broadened legal

pedagogy’s reach and scope, demanding that we, as formally trained

legal writers and workers, affirm the “many voices” it will take to get

to “a place called justice.”

Reparative pedagogies incorporate this aim of truth-telling and

go on to explicitly ask that we work in collective, generative ways to

reimagine the sites of knowledge production within which we are lo-

cated. Aliza Shvarts, for instances, explores the ways that the study of

art might facilitate profession-wide repair through knowledge

(re)production:

To say that pedagogy can “repair” us is to insist that we can do more

with each other than the paranoid work of cataloging the harms that

could befall us either inside or outside of the classroom—as impor-

tant as that task can be. It is to insist that we can use the resources

of our field to creatively assemble the disparate pieces of knowledge

that our criticality has parsed into something like a whole[.]

For Shvarts, these processes necessarily include a reconfiguration of

the classroom as a site of inquiry:

Reparative pedagogy is therefore one that allows students and

teachers to creatively and provisionally assemble the resources they

find in the course materials, in themselves, and in each other. It is

one where neither teacher nor student presumes to know the out-

come beforehand.

To the latter of these points, a chorus of disparately positioned

legal scholars, educators, and practitioners might share in taking um-

brage; the purpose of legal pedagogy likely serves as one of the few

areas where they overlap ideologically. We do know the outcome be-

forehand, they might counter, our graduates must know x, y, and z in

order to practice the law. Law professors must lead and dispense

lineage of CRT legal scholars to critical writer-theorists Dr. Carter G Woodson, Ida Wells

Barnett, W.E.B. DuBois, and the Black Radical Tradition).

ELGADO

& S

TEFANCIC

, supra note 90; C

RITICAL

ACE

HEORY

, supra note 45.

See, e.g., D

ANIEL

A. F

ARBER AND

UZANNA

HERRY

, B

EYOND

EASON

: T

ADICAL

SSAULT ON

RUTH IN

MERICAN

(1997); but see also Richard Delgado,

On Telling Stories in School: A Reply to Farber and Sherry, 46 V

AND

. L .R

. 665, 67

(1993) (exploring the theoretical shortcomings of critiques to “outsider jurisprudence”).

Mari J. Matsuda, Looking to the Bottom: Critical Legal Studies and Reparations, 22

ARV

. C.R.-C.L. L. R

. 323, 324 (1987).

Shvarts, supra note 91.

Id.

Paolo Freire criticizes this mode of pedagogical thought and what they describe as

the “banking” concept of education: “The raison d’etre of libertarian education, on the

other hand, lies in its drive towards reconciliation. Education must begin with the solution

of the teacher-student contradiction, by reconciling the poles of the contradiction so that

84 CLINICAL LAW REVIEW [Vol. 30:65

legal knowledge to best prepare students for____ (fill in the blank).

Whether in preparation for the bar, practice, or work in service of

communities, the formulaic structure of legal education as a profes-

sional degree program presupposes law school as one of several vari-

ables that produce a “fit” and “zealous” advocate.

But our formula equally produced lawyers with visions of capital

sieges;

it yielded attorneys intent on subverting democratic elections,

reprimanded by the profession only after the fact;

it’s given power to

divine legal beasts

100

and horrors that are still largely unspoken by our

curricula.

101

If we are to understand legal education as one part of an

equation for licensure and law practice, we must also understand the

normative values of our courses, our degree’s structure, and the sto-

ries that we don’t teach as (not-so-)hidden variables to lawyer produc-

both are simultaneously teachers and students. This solution is not (nor can it be) found in

the banking concept. On the contrary, banking education maintains and even stimulates

the contradiction through the following attitudes and practices, which mirror oppressive

society as a whole.” P

AOLO

REIRE

, P

EDAGOGY OF THE

PPRESSED

(Myra Bergman Ra-

mos trans., Continuum 2000) (1970).

For a discussion of the white supremacist and eugenics interconnections between

measures of “fitness” and “zealous” advocacy in the legal profession, see Coronado, supra

note 51, at 127; M

ODEL

ULES

. C

ONDUCT

Preamble: A Lawyer’s Responsibilities

. B

’

2020) (“As advocate, a lawyer zealously asserts the client’s position under

the rules of the adversary system”); Robin West, The Zealous Advocacy of Justice in a Less

Than Ideal Legal World, 51 S

TAN

. L. R

. 973 (1999); but see also Jana DiCosmo, Racism

in the Legal Profession: A Racist Lawyer Is an Incompetent Lawyer, 75 N

’

. G

UILD

. 82 (2018).

See, e.g., Reuters, ’Let’s Have Trial by Combat’ over election -Giuliani, R

EUTERS

(Jan. 6, 2021), https://www.reuters.com/video/watch/idOVDU2NS9R.

Compare Austin Sarat, Trump’s Lawyers Will Get Away with Facilitating His Anti-

Democratic Antics and They Know It, V

ERDICT

(Dec. 11, 2020), https://verdict.justia.com/

2020/12/11/trumps-lawyers-will-getaway-with-facilitating-his-anti-democratic-antics-and-

they-know-it (naming the anti-democratic role that lawyers played in the Trump Adminis-

tration); with Mario Nicolais, John Eastman Is a Traitor Who Tried to Kill Our Democracy,

OLORADO

(June 19, 2022), https://coloradosun.com/2022/06/19/nicolais-eastman-jan-

uary-6-opinion/ (condemning attorney John Eastman for his role in the January 2022 Capi-

tol Insurrection); and David Enrich, How a Corporate Law Firm Led a Political

Revolution, NY T

IMES

(Aug. 25, 2022), https://www.nytimes.com/2022/08/25/magazine/

jones-day-trump.html (examining the institutional role that law firms played in the January

2022 Capitol Insurrection). But see also Statement of ABA President Patricia Lee Refo Re:

Violence at the U.S. Capitol, ABA (Jan. 6, 2021), https://www.americanbar.org/news/aba

news/aba-news-archives/2021/01/statement-of-aba-president-patricia-leerefo-re--violence-

at-the/ (statement of then-ABA President condemning the January 2022 insurrection at the

U.S. Capitol).

100

Here, I refer to disgraced former Trump attorney, Sidney Powell, and her claim of

advancing a “Kraken” of an election lawsuit in the wake of the 2020 U.S. Election. See,

e.g., Alison Durkee, Sidney Powell Still Wants Her Election ‘Kraken’ Case Heard in Court,

ORBES

(Apr. 22, 2021, 4:36PM), https://www.forbes.com/sites/alisondurkee/2021/04/22/sid-

ney-powell-still-wants-herelection-kraken-case-heard-in-court/?sh=465f43204863.

101

See, e.g., Dylan C. Penningroth, Race in Contract law, 170 U. P

. L. R

. 1199

(2022); Brant T. Lee, Teaching the Amistad, 46 S

. L

OUIS

U. L.J. 775 (2002); Thomas,

supra note 8.

Fall 2023] Envisioning Reparative Legal Pedagogies 85

tion. Borrowing from theorists beyond the law,

102

we must

acknowledge that legal education defines the profession—that the

truths we teach (and don’t) to lawyers define the truths our laws rec-

ognize. Undoubtedly, our courts and law-making institutions desig-

nate truth.

103

Why, then, would we not recognize that legal educators

have an active hand in preparing law graduates to engage in this law-

and reality-defining endeavor?

Reparative legal pedagogies take up the issue(s) of truth-telling

in legal education and seek to shatter the colonial lens of imperial

truth within which our doctrines are situated. They disrupt the notion

that there is a true “canon” to legal education and ask instead how we

might facilitate “clear-eyed accountability”

104

in/from a profession

that has been instrumental in legitimizing harm. Through practices

that (re)position our instruction in the lived realities of historically

marginalized, minoritized, and silenced voices, our pedagogy might

lend themselves to the broader work of movements to realize truth

and reconciliation from the settler nation-state. As not just a co-con-

spirator but a fully-fledged apparatus of the state in reproducing its

ideologies,

105

legal educators inherit a liability for the law’s past and

ongoing socio-legal wrongs. We are pedagogically liable for state

harms that demand our healing.

2. Practices of Healing

Next, I turn our attention to the work of Black critical theorist,

bell hooks, and the writings of fellow liberatory educators committed

to pedagogical practices of healing. I begin, first, with the notion that

our pedagogy might be “engaged” with the lived realities and harms in

which they exist.

106

In Teaching to Transgress, hooks describes “en-

102

Critical theorists have continued to identify the ways that school spaces are inher-

ently political sites of socialization that reproduce state and social hierarchies of power.

See, e.g.,

BELL HOOKS

, Understanding Patriarchy, in T

ILL TO

HANGE

: M

, M

ASCU-

LINITY

AND

OVE

17 (2004); Kennedy, supra note 69, at 607; A

LTHUSSER

, supra note 69.

103

See, e.g., Edward D. Cavanagh, Countering the Big Lie: The Role of the Courts in the

Post-Truth World, 107 C

ORNELL

L. R

. O

NLINE

64 (2021-2022) (exploring the role that

courts played in giving space for former U.S. President Trump’s claims of voter fraud and

election illegitimacy to take root in 2020).

104

Iyer, supra note 82, at 185.

105

See sources cited supra note 102.

106

Black critical theorist bell hooks developed a theory of “engaged pedagogy” through

reflections on her own experiences in the classroom and the lessons gained from educators

before her: “many students still seek to enter feminist classrooms because they continue to

believe that there, more than in any other place in the academy, they will have an opportu-

nity to experience education as the practice of freedom. Progressive, holistic education,

‘engaged pedagogy’ is more demanding than conventional critical or feminist pedagogy”).

BELL HOOKS

, T

EACHING TO

RANSGRESS

: E

DUCATION AS THE

RACTICE OF

REEDOM

13,

15 (1994).

86 CLINICAL LAW REVIEW [Vol. 30:65

gaged pedagogy” as a “progressive, holistic” form of education that

emphasizes well-being.

107

Reflecting on the teachings of Paolo Freire

and Thich Nhat Hanh, hooks situates educators as healers, insisting

that we work to recast the role and goal of educators: “teachers must

be actively committed to a process of self-actualization that promotes

their own well-being if they are to teach in a manner that empowers

students.”

108

For hooks, self-actualization is necessary for liberatory

pedagogy.

109

“Professors who embrace the challenge of self-actualiza-

tion,” she argues, “will be better able to create pedagogical practices

that engage students, providing them with ways of knowing that en-

hance their capacity to live fully and deeply.”

110

As an extension of our prior discussion of truth-telling in educa-

tion, hooks goes on to note the ways that truth and healing are

interconnected:

[students] want an education that is healing to the uninformed, un-

knowing spirit. They do want knowledge that is meaningful. They

rightfully expect that my colleagues and I will not offer them infor-

mation without addressing the connection between what they are

learning and their overall life experiences.

111

Healing, by hooks’ account, is predicated on our pedagogical commit-

ment to interrogating not just what we teach but how we teach and in

what ways we show up as educators in doing so. Healing requires

truth.

This politic and practice of healing pedagogy is consonant with

efforts within the law to “heal” law students

112

and to center vulnera-

bility in our legal practice.

113

Vulnerability, as legal scholar-activist

Camilo Romero argues, is instrumental to lawyers’ advocacy “for a

more wholesome and inclusive society.”

114

Workers within the law

107

Id.

108

Id.

109

Id. at 16-17 (“The self was presumably emptied out the moment the threshold was

crossed, leaving in place only an objective mind . . . . Not surprisingly, professors who are

not concerned with inner well-being are the most threatened by the demand on the part of

students for liberatory education, for pedagogical processes that will aid them in their own

struggle for self-actualization.”).

110

Id. at 22.

111

Id. at 19.

112

See, e.g., Tyler, supra note 45 (discussing the successes and theoretical grounding of

mindfulness-oriented instruction in the clinical legal context).

113

See, e.g., Camilo A. Romero, May It Please the Soul: On the Practice of Law and

Vulnerability, 69 J. L

EGAL

DUC

. 672, 674 (2020) (“the fact remains that I have privileges

that many seek and few attain. Those privileges as advocates must be thoughtfully ac-

knowledged, with oneself and those with whom one communes, to develop trust and truly

be proximate. Indeed, this is where proximity makes way for vulnerability. In sharing our

own story—its insecurities and incongruities—trust is strengthened and so is our advocacy

partnership.”).

114

See Id.

Fall 2023] Envisioning Reparative Legal Pedagogies 87

must be prepared to show their “full self,” to communicate their

trauma, and to “reveal our ‘othered’ side” or “that which makes us

human.”

115

Healing, in/from legal education, similarly requires that

educators view their personal healing as a political matter for the legal

profession. How can we expect our law graduates to be vulnerably

present in their work and to tend to their well-being in a profession

that does not,

116

or when educators are not expected to do the same?

Engaged pedagogy reveals that we cannot expect care from members

of our profession if we do not practice it as a value in their education

and training.

In the past decade especially, an ever-growing cadre of critical

clinical legal scholars have taken up the work of building engaged le-

gal pedagogies, albeit without using this exact language.

117

Self-reflec-

tion, they emphasize, must be practiced by both educators and

students as co-participants to the work of learning and living liber-

atory futures.

118

Reparative legal pedagogies, I argue, encompass this

work and the scholarship-activism of fellow critical writers outside the

clinical legal context by demanding that we radically transform, “not

just tinker,” with legal education.

119

For both truth and healing to be

central to any legal pedagogy, we must disrupt the idea that legal edu-

cators are anything but neutral dispensers of doctrine; we are either

extensions of or interruptions to a lineage of normative ideologies

115

Id. at 675.

116

Jaffe, Bender, & Organ, supra note 55; see also Antonio Coronado, Beyond Burnout

& the Law’s Culture of Crisis, M

ASS

. L

. W

EEKLY

(Mar. 10, 2023), https://masslawyer-

sweekly.com/2023/03/10/beyond-burnout-and-the-laws-culture-of-crisis/ (providing an em-

bodied and learned account of the ways that burnout is normatively embedded in the

infrastructure of the U.S. legal profession); N

ATIONAL

ASK

ORCE ON

AWYER

ELL

EING

, T

ATH TO

AWYER

ELL

-B

EING

: P

RACTICAL

ECOMMENDATIONS FOR

OSI-

TIVE

HANGE

7 (2017), https://www.americanbar.org/content/dam/aba/images/abanews/

ThePathToLawyerWellBeingReportRevFINAL.pdf.

117

Compare Hayat, supra note 25, at 165-67 (“Reflection is key. I can and want to do

better. I am trying again this semester, . . . . The point though is not to give up even if these

changes do not work the first time. Try again and again”), with Alexander, supra note 37,

at 130 (“It is one thing to describe a utopian set of values and quite another to figure out

how to make them real in our society. They require constant practice and self-reflection. It

helps to keep them present . . . . Better yet, we can use them as a shared language, as

guiding questions in our meetings, and to help each other think through our next moves”)

(emphasis added). See Touissant, supra note 47; Anthony V. Alfieri, Rebellious Pedagogy

and Practice, 23 C

LIN

. L. R

. 5 (2016); Sameer M. Ashar, Deep Critique and Democratic

Lawyering in Clinical Practice, 104 C

ALIF

. L. R

. 201, 218 (2016) (making the case that

the practice and instruction of poverty law requires a “capacity of deep critique” by both

educator and student); Harold McDougall, The Rebellious Law Professor: Combining

Cause and Reflective Lawyering, 65 J. L

EGAL

DUC

. 326 (2015); E. Michelle Rabouin,

Gifting Children of Promise: Re-Imagining the Academic Margins as Transformative Legal

Space, 3 J. G

ENDER

ACE

& J

UST

. 581 (2000).

118

Id.

119

Id.; L ´opez, supra note 46; Subversive Legal Education, supra note 26.

88 CLINICAL LAW REVIEW [Vol. 30:65

designating who has been harmed and who deserves a remedy.

So, after 150 years, let’s interrupt in the strongest of terms. Re-

pair, as a reflective verb of dreaming up the legal pedagogies of to-

morrow, aims to do just this by looking in all directions—by situating

the classroom in the past and present realities that define it. In the

sections that proceed, I explore what duty, if any, legal educators have

to reflect on the practices of repair that this piece unearths, beginning

with the student organizing that brings me to pedagogical care in legal

education.

II. D

EVELOPING A

UTY OF

EDAGOGICAL

ARE

My first engagement with a pedagogical “duty” of care began

during my work as a law student leader and as a member of my law

school’s Committee Against Institutional Racism.

120

Astounded by

our experiences in the classroom and by the stories of our peers—of

the lack of care and intention we collectively felt from our legal edu-

cators, we organized as student advocates. One of the ways that we

drew attention to what we saw as the haphazardness and careless ra-

cism of our legal education was through an open letter calling for

change.

121

The letter was signed by over two hundred members of the

school’s student body, past, present, and future—a testament to the

sheer magnitude of students’ frustrations.

122

Styled as a mock complaint against the law school, the letter al-

leged four counts of educational harm: i) fraud, for the school’s mis-

characterization of the experiential education that it offered; ii)

breach of contract, for the lack of performance on the part of our

school in its delivery of effective legal education; iii) unjust enrich-

ment, through the “continued and unacknowledged exploitation of la-

bor and lived experiences from BIPOC students” that in turn

“conferred a financial, emotional, developmental, and pedagogical

benefit upon the white student body;” and iv) negligence, for a breach

of what we identified as the school’s duty of “pedagogical care.”

123

Most relevant for this Essay, our claim for negligence proceeded

as follows:

COUNT II. NEGLIGENCE

• We reallege and incorporate by reference herein all of the lived

120

“The Committee Against Institutional Racism at Northeastern University School of

Law is currently a rotating standing committee of students, faculty, and administrators

tasked with developing programs and strategies to eradicate institutional racism and to

enhance the overall quality of life for all BIPOC in the law school community”) See CAIR

Report, supra, note 63; see C

ALL TO

CTION

, supra note 62, at 6.

121

ALL TO

CTION

, supra note 62.

122

Id. at 1.

123

Id. at 6.

Fall 2023] Envisioning Reparative Legal Pedagogies 89

facts contained in the above paragraphs.

• That [the law school’s] BIPOC students bring this claim for the

mental anguish, emotional pain and suffering, financial loss, lost op-

portunities, and other damages for the true “experience” of educa-

tion that occurred as a direct and proximate result of the negligence

and breaches of the applicable standards of pedagogical care by [the

law school] and through its Professors, Teaching Assistants, Law-

yering Fellows, Staff, Faculty, and Administrators.

• That these standards of care are established under Standards 315

and 403(b) of the ABA Standards and Rules of Procedure for Ap-

proval of Law Schools 2021-2022. ABA Standards and Rules of Pro-

cedure Standards 315, 403(b) (2021).

• That [the law school’s] Administration failed to take reasonable

efforts to ensure teaching effectiveness . . . across the Law School,

despite knowledge of the need for such efforts.

• That [the law school’s] Administration failed to make “appropri-

ate changes to improve the curriculum,” despite knowledge of the

need for such changes.

124

Furthermore, we alleged that the school had been given actual and

physical notice of its past and ongoing pedagogical harm to its BIPOC

student populations:

• That the [the law school’s] Administration was given actual notice

of the many forms of violence that BIPOC students regularly navi-

gate in their time at the Law School . . . and that they knew or

should have known of the “dramatic impact” that ignoring Diver-

sity, Equity, and Inclusion in its many forms at [the law school] con-

tinues to have on the well-being of students. See Massachusetts

Supreme Judicial Court Standing Committee on Lawyer Well-Being,

A Guide to Preparing Law Students and Rising Lawyers to Thrive in

Law School, the Legal Profession, & Beyond 11 (2021) (citing Re-

port on the State of BIPOC).

• That [the law school’s] Faculty continue to deliver class instruction

without a comprehensive plan or intention-setting process, directly

and proximately resulting in disparate outcomes, disparate exper-

iences, and disparate forms of interpersonal harm between Law

Offices.

• That [the law school] has refused repeated demands for structural

and curricular change and knew or should have known of the harms

that BIPOC students navigate . . . across the Law School.

125

As we noted in this (ac)count of harm, our claim for negligence was

grounded in two of the American Bar Association’s 2021-2022 Stan-

dards and Rules of Procedure for Approval of Law Schools, these be-

124

Id.

125

Id. at 6-7.

90 CLINICAL LAW REVIEW [Vol. 30:65

ing ABA Standards 315 and 403(b).

126

Our Call to Action made the

case that ABA Standards 315 and 403(b), when read in conjunction,

imposed a negligence-type duty of care on our legal educators for

their pedagogical practices within and beyond the classroom. These

standards became a vehicle and organizing tool for the “collective

frustration, disappointment, and anger with the lack of change” we

had witnessed at the law school.

127

To be clear, the document was intended as a theorizing and nam-

ing of our harm—never as a legal one. We did not have the resources

or time (or precedent) to sue our specific law school for the pedagogi-

cal harms that are normatively embedded in traditional legal

pedagogy. But if we (or other student organizers across this country)

did so, would we have a case? Do legal educators actually owe any

duty of care in their formal training of lawyers? The following subsec-

tions explore this question and investigate whether any pedagogical

duty might inhere at a national level in either the ABA Standards that

our efforts cited or the relevant case law of educational negligence.

A. Interpreting the ABA Standards for Accreditation

For nearly a century, the Council of the American Bar Associa-

tion Section of Legal Education and Admissions to the Bar (“the

Council”) has published an annual set of standards and rules that

“contain the requirements a law school must meet to obtain and re-

tain” accreditation.

128

Of great relevance to my work as a student or-

ganizer and the work of examining pedagogical intention in legal

education is Standard 315. First adopted for the 2015-2016 academic

year,

129

Standard 315 concerns the assessment of a law school’s re-

spective program of legal education:

The dean and the faculty of a law school shall conduct ongoing eval-

uation of the law school’s program of legal education, learning out-

comes, and assessment methods; and shall use the results of this

evaluation to determine the degree of student attainment of compe-

tency in the learning outcomes and to make appropriate changes to

improve the curriculum.

130

Guidance on the interpretation of Standard 315 notes that assessment

methodologies may include “review of the records the law school

maintains to measure individual student achievement . . .; evaluation

126

ABA, ABA Standards and Rules of Procedure for Approval of Law Schools 1, 25, 28

(2022) [hereinafter 2021-2022 ABA Standards].

127

ALL TO

CTION

, supra note 62, at 4, 6.

128

2021-2022 ABA Standards, supra note 126, at v.

129

Managing Director’s Guidance Memo: Standards, Section of Legal Education and

Admissions to the Bar (June 2015) (Mem. at 315).

130

2021-2022 ABA Standards, supra note 126, at 41.

Fall 2023] Envisioning Reparative Legal Pedagogies 91

of student learning portfolios; student evaluation of the sufficiency of

their education; student performance in capstone courses or other

courses that appropriately assess a variety of skills and knowledge; bar

exam passage rates;” and outside assessment by prior graduates.

131

The Council does not prescribe any uniform methods of assess-

ment under this Standard and makes clear that evaluation of “student

achievement of learning outcomes” will likely differ from school to

school.

132

The open menu of assessment tools provided by the ABA

injects a degree of ambiguity that presented a serious problem in dis-

cerning what degree and to what level student attainment was being

assessed. Previous scholars have noted the difficulty of developing

precise qualitative assessment metrics in the context of law school ac-

creditation;

133

Standard 315, I argue, is no exception to this issue. But,

if a duty to provide concrete quality instruction did not explicitly in-

here in a law school’s broader program of study, where else might it

lie? To this question, I turned next to Standard 403(b) and the ABA’s

regulation of individual educators.

The second accreditation standard that our student organizing

cited was ABA Standard 403(b).

134

The relevant part of Standard 403

provides that “[a] law school shall ensure effective teaching by all per-

sons providing instruction to its students.”

135

The Council provides

guidance on the types of metrics and methodologies a law school may

use to ensure teaching “effectiveness,” including:

orientation, guidance and mentoring for new faculty members; a

faculty committee on effective teaching; class visits; critiques of

videotaped teaching; institutional review of student course evalua-

tions; colloquia on effective teaching; and recognition and use of

creative scholarship in law school teaching methodology.

136

Our interpretation of Standard 403(b) might be paired with the lan-

guage of ABA Standard 401, requiring that law school faculty “pos-

sess a high degree of competence, as demonstrated by academic

qualifications, experience in teaching or practice, teaching effective-

ness, and scholarship.”

137

While not explicitly explored in the writing

of our Call to Action, Standard 401 echoes this language of “effective”

131

Id. (emphasis added).

132

Id.

133

See, e.g., Daniel Gordon, Does Law Teaching Have Meaning: Teaching Effectiveness,

Gauging Alumni Competence, and the Maccrate Report, 25 F

ORDHAM

. L.J. 43 (1997)

(discussing the difficulty of assessing teaching effectiveness); Gordon Russell, The ABA

Section on Legal Education Revisions of the Law Library Standards: What Does It All

Mean?, 106 L

IBRARY

J. 329 (2014).

134

2021-2022 ABA Standards, supra note 126, at 28.

135

Id.

136

Id.

137

Id. at 27 (emphasis added).

92 CLINICAL LAW REVIEW [Vol. 30:65

teaching in U.S. legal education and provides a quality standard that

diverges from the even more subjective standard of teaching “suffi-

ciency” seen in interpretative language of Standard 315.

138

“Effective-

ness,” then, seemed to be the closest thing to a cognizable standard of

care that our student complaint could cite to.

139

The motion, and the

student movement work underlying it, made the case that our legal

educators have failed to meet their duty of care in providing effective

instruction and that, while not a compulsory metric under the stan-

dards, our collective dissatisfaction with the adequacy of the program

helped evidence this.

140

I understood that this claim was significantly more than any mere

novel legal argument; it was a theoretical and structural indictment of

U.S. legal education writ large using the material arms of the ABA’s

regulatory structure against itself. But there was a reclamatory power

in using the language and Latin that had been pressed upon us for

three years to make some sense of the harms we were navigating. It

was healing. And, in many ways, the citations to Standards 315 and

403(b) were as metaphorical as they were literal. It didn’t matter if our

claim for pedagogical negligence would hold up in court. We sought to

provide actual and written notice of the harms inherent to U.S. legal

education that are disparately felt by historically marginalized and mi-

noritized students. In all cases, the Standards provided a vocabulary to

question the normative assumptions that the canonic case method and

legal pedagogy’s business as usual were anything but “effective” to

our learning. The question remains, however, what exactly “effective”

instruction in U.S. legal education looks like.

This uncertainty, I know, is more telling of the country and our

values than of legal education specifically. Even as a law student, I

had read San Antonio v. Rodriguez.

141

I keenly understood (then as

now) that U.S. settler law treats education and its quality as a de

minimis floor, never as a right or a clearly articulated set of stan-

138

Id at 25, 27.

139

ALL TO

CTION

, supra note 62, at 6.

140

Id.

141

San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1 (1973) (finding in the context

of education that class did not serve as a protected classification warranting equal protec-

tion under the 14th Amendment); see also Camille Walsh, Erasing Race, Dismissing Class:

San Antonio Independent School District v. Rodriguez, 21 B

ERKELEY

AZA

L.J. 133

(2011) (criticizing the Rodriguez court for negating the possibility of intersecting legal

frameworks for race and class based discrimination); but see also Sarah G. Boyce, The

Obsolescence of San Antonio v. Rodriguez in the Wake of the Federal Government’s Quest

to Leave No Child Behind, 61 D

UKE

L.J. 1025 (2012) (“actions of Congress and the execu-

tive branch in the sixty years following the decision have established an implicit federal

right to education that is equivalent—and perhaps even superior—to any right the Court

might have established”).

Fall 2023] Envisioning Reparative Legal Pedagogies 93

dards.

142

But, with white supremacist surveillance of our classrooms

continuing to permeate and scrutinize all aspects of U.S. class-

rooms,

143

surely “effective” teaching must mean something in the con-

text of legal education.

144

Can we even define effective legal

instruction before it is wrapped up next in the silencing and erasure

that grips our country? Faced with an absence of concrete interpreta-

tion, the following section looks to the courts for prior legal assess-

ments of educational negligence and what precisely constitutes a

pedagogical failing in the classroom.

B. A Tort of Pedagogical Negligence

The case law concerning judicial oversight of educational spaces

makes one thing clear: courts are leery of issuing pedagogical man-

dates.

145

When confronted with claims for negligence, courts have

consistently found that state legislatures and their local education

agencies are best positioned to stipulate the type of care required in

U.S. classrooms.

146

The same deference can be seen in courts’ hesita-

142

The Supreme Court’s 1982 decision in Plyler v. Doe and more recent developments

out of the 6th Circuit point to literacy as the implicit constitutional floor beneath which a

standard of education in the U.S. cannot fall: “The stigma of illiteracy will mark [students]

for the rest of their lives. By denying these children a basic education, we deny them the

ability to live within the structure of our civic institutions, and foreclose any realistic possi-

bility that they will contribute in even the smallest way to the progress of our Nation . . . .

In light of these countervailing costs, the discrimination [against undocumented students]

can hardly be considered rational unless it furthers some substantial goal of the State.”

Plyler v. Doe, 457 U.S. 202, 223 (1982); see also Gary B. v. Whitmer, 957 F.3d 616, 655 (6th

Cir. 2020) (finding that the right to a basic minimum education is implicit in the concept of

ordered liberty and a fundamental right under the Due Process Clause of the 14th Amend-

ment), vacated en banc 958 F.3d 1216 (6th Cir. 2020); William R. Blanchette, Sufficiently

Fundamental: Searching for a Constitutional Right to Literacy Education, 64 B.C. L. R

377 (2023).

143

See supra notes 13-16 and accompanying text.

144

2021-2022 ABA Standards, supra note 126, at 28; see sources cited supra note 133.

145

As the U.S. District Court for the Northern District of Illinois once put it: “Educa-

tional malpractice is a tort theory beloved of commentators, but not of courts. While often

proposed as a remedy for those who think themselves wronged by educators, educational

malpractice has been repeatedly rejected by the American courts.” Ross v. Creighton

Univ., 740 F. Supp. 1319, 1327 (N.D. Ill. 1990); see John Elson, Common Law Remedy for

the Educational Harms Caused by Incompetent or Careless Teaching, 73 NW. U. L. R

641 (1978-1979); Stephen D. Sugarman, The Failed Quest for Equal Educational Opportu-

nity: Regulating Education the Way We Regulate Business, 50 J.L. & E

DUC

. 1 (2021); Ethan

Hutt & Aaron Tang, The New Education Malpractice Litigation, 99 V

. L. R

. 419

(2013).

146

See, e.g., Ross, 740 F. Supp. at 1327 (citing Peter W. v. San Francisco Unified School

District, 60 Cal. App. 3d 814 (1976); Hoffman v. Board of Education of City of New York,

49 N.Y.2d 121; Donohue v. Copiague Union Free School District, 47 N.Y.2d 440 (1979);

Wilson v. Continental Ins. Co., 87 Wis. 2d 310 (1979); D.S.W. v. Fairbanks North Star

Borough School District, 628 P.2d 554 (Alaska 1981); Hunter v. Board of Education, 292

Md. 481 (1982); Tubell v. Dade County Public Schools, 419 So. 2d 388 (Fla. App. 1982));

see also Elson, supra note 145, at 645-46 (overviewing the rhetoric employed by courts in

94 CLINICAL LAW REVIEW [Vol. 30:65

tion to disrupt established norms of an individual educator’s license to

craft pedagogy under academic freedom at the higher education

level.

147

In fact, just one U.S. case makes reference to the language of

“pedagogical negligence,” this being the 2013 case of Ball v. Board of

Education of the City of Chicago.

148

Ball v. Board of Education concerns the revocation of tenure and

dismissal of a Chicago Public Schools (“CPS”) teacher for their negli-

gent abandonment of grade-school students.

149

There, the Board of

Education of the City of Chicago and its investigators had concluded

that Vera Ball, an elementary school teacher at Paul Revere Elemen-

tary School (“Paul Revere”), had violated numerous provisions of

CPS’ employee discipline and due process policy.

150

Video footage

and hearing testimony indicated that Ball had failed to comply with

Paul Revere’s own internal policy of supervising students at all times

and that, as result of Ball’s brief abandonment of her students, several

students had engaged in sexual intercourse.

151

Ball oversaw a class of

nine students, all of various learning and cognitive abilities and rang-

ing in school level from fifth to eighth grade.

152

The record indicates

that Ball did not abide by the elementary school’s policy of constant

supervision and, in fact, was attempting to register for a mandatory

training at the time of the incident. When assessing Ball’s 30- to 45-

minute period of absence from instruction and supervision, a hearing

officer found that Ball’s conduct “closely constituted pedagogical neg-

ligence.”

153

On appeal, the Appellate Court of Illinois affirmed the

Board’s dismissal and revocation of Ball’s tenure.

154

The student identities, overlapping local policies, and posture of

this case bear no legal or pedagogical implications for our assessment

not legislating the classroom as “super school boards”); Laurie S. Jamieson, Educational

Malpractice: A Lesson in Professional Accountability, 32 B.C. L. R

. 899, 902 (1991) (ex-

amining “the public policy elements that have affected courts’ recognition of an educa-

tional malpractice cause of action”); John S. Elson, Suing to Make Schools Effective, or

How to Make a Bad Situation Worse: A Response to Ratner, 63 T

. L. R

. 889 (1985)

(exploring the impracticability of judicial review as a form of education reform in the edu-

cational malpractice area).

147

Sweezy v. State of New Hampshire, 354 U.S. 234 (1957); Keyishian v. Bd. of Regents

of Univ. of the State of N.Y., 385 U.S. 589 (1967); see also Victoria L. VanZandt, The

Assessment Mandates in the ABA Accreditation Standards and Their Impact on Individual

Academic Freedom Rights, 95 U. D

. M

ERCY

L. R

. 253, 256 (2018) (overviewing the

history of U.S. courts development and treatment of “academic freedom”).

148

See Ball v. Bd. of Educ. of City of Chicago, 2013 IL App (1st) 120136, ¶ 21.

149

Id. at ¶¶ 4-5.

150

Id. at ¶¶ 1-4.

151

Id. at ¶¶ 6-7, 10-12.

152

Id. at ¶ 8.

153

Id. at ¶ 21.

154

Id. at ¶¶ 36.

Fall 2023] Envisioning Reparative Legal Pedagogies 95

of care by legal educators. Indeed, instruction in the special education

context carries its own unique standard of care,

155

and the Ball court

had found a pedagogical duty in the local policies where the school

was situated as an administrative matter.

156

Additionally, it’s of note

that it was an administrative hearing officer—not the Illinois courts—

who first made the finding of “pedagogical negligence.”

157

Yet I draw

our attention to this case to situate my own understanding of care in

the classroom. Pedagogical care, in both Ball and our mock complaint,

can be seen as a sort of extra-legal imagination that attaches to the

configurations of negligence law in the education context to name

harmful educational practices. It was Paul Revere’s and CPS’ policies

prohibiting negligent employee conduct that produced a duty against

pedagogical negligence, not the common law tort of negligence.

158

recognition of this, the Ball hearing officer determined that she was

liable for negligent acts, not negligence.

159

The notion of pedagogical

negligence, then, is limited to this singular legal instance.

By contrast, a sizeable body of scholarship since the 1970s has

grappled with the shared doctrinal and policy question of what a tort

regime of educational malpractice might look like.

160

One of these

early pieces is John Elson’s A Common Law Remedy for The Educa-

tional Harms Caused By Incompetent or Careless Teaching.

161

There,

Elson traces the remedial possibilities and judicial limitations of a cog-

nizable cause of action for educational negligence.

162

In surveying the

case law of educational malpractice claims at the time, Elson main-

tains that the courts would be unlikely to legally impose any uniform

standard of care to classroom educators:

both the lack of empirical evidence on effective and ineffective ped-

agogical practices and the discretionary or judgmental nature of the

155

The Individuals with Disabilities Education Act (IDEA) provides for free, appropri-

ate public education (FAPE) for all children with disabilities. Education for All Handi-

capped Children Act of 1975., 20 U.S.C. § 1400. Since IDEA’s passage, the exact quality of

education owed to disabled students has been clarified by amendment and by the courts as

being whether instruction confers a “meaningful benefit” to disabled students. Id. (super-

seding Bd. of Educ. v. Rowley, 458 U.S. 176 (1982)); N.B. v. Hellgate Elem. Sch. Dist., 541

F.3d 1202 (9th Cir. 2008). See also Jennifer C. v. L.A. Unified Sch. Dist., 168 Cal. App. 4th

1320 (2008) (articulating a standard of care for educators of students with disabilities in

California that rises above that owed to non-disabled students); Drew Millar, Judicially

Reducing the Standard of Care: An Analysis of the Bad Faith/Gross Misjudgment Standard

in Special Education Discrimination, 96 K

. L.J. 711 (2007).

156

Ball, 2013 IL App (1st) at ¶ 25

157

Id. at ¶ 21.

158

Ball, 2013 IL App (1st) at ¶ 34.

159

Id. at ¶¶ 34, 36.

160

See supra notes 145-46 and accompanying text.

161

Elson, supra note 145.

162

Id. at 693-97.

96 CLINICAL LAW REVIEW [Vol. 30:65

teaching process make it unlikely that teachers can be held account-

able in negligence to any predetermined, mechanically applied stan-

dard of necessary teaching skills or procedures.

163

While scholars note that empirical developments since the time of El-

son’s writing have seriously invalidated or at least weakened the first

of these points, the latter of Elson’s forecasts continues to hold up in

the classroom and courts.

164

In the past decade, legal scholars have urged our “rethinking” of

educational malpractice claims, arguing that education reform and

data-driven standards in teaching methodologies have provided “new

legs” to a cause of action for educational negligence.

165

By adopting a

frame of quality assurance to the input of educators and their institu-

tions, some scholars contend that recognition of “claims for educa-

tional malpractice based on institutional negligence could play a vital

role in promoting the quality and accountability of educational institu-

tions.”

166

An implementation of this theory can be seen in the case

Ambrose v. New England Association of Schools, Inc., in which gradu-

ates unsuccessfully brought suit against their alma mater’s accrediting

association for “inadequate or nonexistent investigation of the ‘quality

of [their] program [of study] or its conformity with the accreditation

standards.”

167

Still, other scholars note the ways that adversarial legal-

ism fails outright as a regulatory regime for advancing meaningful

equal educational opportunity in U.S. schools.

168

In any case, the fact

remains that educational malpractice remains a “tort theory beloved

of commentators, but not of courts.”

169

But if there is no true duty of pedagogical care in education—as

the courts and a lack of precision from legal interpretations suggest—

we are left with dreams of what such standards of care in our teaching

might be. One such vision, I argue, is to advance truth and healing

through a practice of constant and reflective pedagogical repair for

the realities that situate U.S. law schools: to envision reparative legal

pedagogies. Like the mock complaint and student organizing that

163

Id. at 744-45.

164

See, e.g., Hutt & Tang, supra note 145 at 427 (arguing that education reform and

data-driven standards in teaching methodologies provide “new legs” to a cause of action

for educational negligence); Sugarman, supra note 145 (discussing the failure of adversarial

legalism as a regulatory regime for equal educational opportunity in primary and secon-

dary education).

165

Id.; Stijepko Tokic, Rethinking Educational Malpractice: Are Educators Rock Stars,

2014 BYU E

DUC

. & L.J. 105 (2014) (applying a quality assurance frame to revitalize a

theory of educational malpractice).

166

Tokic, supra note 165, at 108.

167

Ambrose v. New Eng. Ass’n of Sch. & Colls., Inc., 252 F.3d 488 (1st Cir. 2001).

168

Sugarman, supra note 145.

169

Ross, 740 F. Supp. at 1327.

Fall 2023] Envisioning Reparative Legal Pedagogies 97

brings me to this work, this Essay is a naming of harm—a locating of

the violent pedagogical assumptions that have become commonplace

to, expected from, and otherwise characteristic of legal education.

The following section takes up the work of pedagogical dreaming

by providing potential points of reflection on the intersecting dimen-

sions of harm that uniquely constitute U.S. legal education.

C. Forging Futures of Pedagogical Care

In the glaring absence of any exact legal or theoretical framework

through which to advance truth and healing in U.S. legal education,

this Essay suggests instead that we embrace the messy, the difficult,

and the deeply unsatisfying conclusion that it will always and forever

depend. In drawing from hooks’ notion of engaged pedagogy and the

liberatory writers whose shoulders I now stand upon, I propose that

we conceptualize reparative legal pedagogies as addressing any num-

ber of considerations across axes of truth-fiction, on the one hand, and

healing-harm on the other.

This is to say that, in seeking to advance goals of truth and heal-

ing from legal pedagogy, I implore legal educators to more meaning-

fully, clearly, and intentionally engage in a multivariate analysis of

who and/or what to prioritize and in what settings or ways as we co-

create educational spaces. As historically marginalized and minori-

tized law students are all too aware,

170

unfiltered legal histories in the

classroom can be as psychologically triggering or harmful as they are

truth-advancing. The below chart visualizes this point, along with the

dimensions across which repair must be actively and constantly

assessed:

170

See, e.g., Crenshaw, supra note 35; CAIR Report, supra, note 63.

98 CLINICAL LAW REVIEW [Vol. 30:65

Healing Harm

Truth

Repair

Reparative legal

edagogies aim to

advance practices of healing and

truth-telling to atone for and reck-

on with violent legal histories.

Example:

Pedagogical Triggers

Law student-activists know too

well that lessons can be as truthful

as they are harmful. Educators

must assess whether the risk of

harm is outweighed by the power

of truth-telling in a given moment-

context.

Fiction

Example: Psychological

Safe Lessons

It is a historical and legal fiction to

erase the foundations of U.S. set-

tler law and the law courses that

are co-constituted by chattel en-

slavement, genocide, and racial

capitalism. But educators equally

owe a pedagogical duty to their

students to ensure a shared level of

psychological safety in the class-

room, even if our lessons are an

incomplete account of harm.

Hegemony & Canon

When neither truth nor healing are

rioritized, we are left instead with

fictional and harmful accounts of

ast lived and embodied harms.

Here, at this intersection, is where

reparative legal pedagogies depart

from their predecessors: they aim

to break the normatively colonial

mold of legal pedagogy along with

the cases and methods we’ve

deemed canonic.



But not all pedagogies are created equal. As the above matrix

explores, legal educators negotiate a multitude of truths and harms in

the classroom in crafting their own pedagogical practice. As further

illustration of the calculus that pedagogical repair requires from us,

the below case studies ask that we reflect on how truth-fiction and

healing-harm manifest in each of our classrooms:

• Nascent CRT Bans – In seeking to ban and erase the stories

of racial and ethnic minorities, these policies and resulting

classroom spaces are historical fictions that harm all students,

generally (in learning ahistorical settler narratives), and ra-

cially marginalized and minoritized students, specifically (in

being both subject to and of settler violence).

• Historically Accurate Case-Based Lessons – The incorpora-

tion of cases and class materials that more accurately or fully

depict the violent legal realities underlying a given legal doc-

trine undoubtedly advance truth in/from legal education. Such

an approach, however, runs the constant risk of either over-

emphasizing or under-characterizing the historical role of U.S.

Fall 2023] Envisioning Reparative Legal Pedagogies 99

legal violence, with each disparately harming either marginal-

ized or identity-privileged students in any discussion of

harm.

171

• Abolitionist Texts – As a healing but fictive pedagogical prac-

tice, abolitionist materials invite the classroom to imagine a

reparative future that does not yet exist. They are, by defini-

tion, utopic forms of fiction that bring about healing in grap-

pling with present truths.

International campaigns to advance processes of truth and recon-

ciliation make it clear that novel educational efforts to advance repair

will not be infallible; they, like our institutions, are subject to the same

legacies of oppression, biases, and material limitations as any other

form of justice-making.

172

In line with such a conclusion, reparative

legal pedagogies must be crafted with the utmost care and caution for

the ways that they might unintentionally or unapologetically generate

harm. So, too, must educators assess the ways that truth and healing

vary by place, time, position, power, and context. Accordingly, the fol-

lowing section of this piece extends the preceding discussion of truth

and healing to explore how and when legal educators might advance

pedagogical repair.

III. W

ITHOUT

UTY

, T

HERE

REAMS OF

ARE

The morning before my New Beginnings panel, I participated in a

conversation on the political polarization of U.S. education.

173

As a

way of engaging legal educators on the rise of anti-CRT local school

measures, transphobic school policies, and book bans that have prolif-

erated in the past few years, I joined the conversation by offering my

perspective on the unifying elements of white supremacy that animate

these policy developments.

One of my co-panelists, in reflecting on the landscape of the

“modern day” classroom, expressed their own fears of pedagogical

surveillance, saying that “anyone” can record classes nowadays and

that such a reality brought them great fear as an educator. I responded

171

CAIR Report, supra, note 63, at 9-14 (discussing the unique forms of mental, emo-

tional, physiological exhaustion that BIPOC college students, and law students specifically,

navigate).

172

See, e.g., Mahmood Mamdani, Amnesty or Impunity? A Preliminary Critique of the

Report of the Truth and Reconciliation Commission of South Africa (TRC), 32 D

IACRITICS

33 (2002).

173

Education Law, A

SSOC

. A

. L. S

CHS

., https://memberaccess.aals.org/eweb/Dynamic

Page.aspx?webcode=&ho]SesDetails&ses_key=18ac8d69-e0a6-467b-b291-8ba76fb6e865

(last visited June 14, 2023).

100 CLINICAL LAW REVIEW [Vol. 30:65

to this comment by reiterating several points from my presentation.

First, I emphasized that Black and Indigenous pedagogies have always

been under violent scrutiny—that U.S. anti-literacy laws pushed the

education of enslaved Black peoples to steamboats beyond state juris-

diction,

174

that Indigenous teachings have always been criminalized,

undermined, and delegitimized,

175

and that these racist realities have

entrenched a caste system of education in this country.

176

A regime of

scrutiny, like a true tort of pedagogical negligence, will not save us.

Second, I added that every educator, in any place or classroom, should

be prepared to name the pedagogical goals and methods of their

teachings—that novel surveillance should not prompt heightened

levels of attention by educators; the inherent violence of legal

pedagogy demands heightened attention each time we teach. The anti-

CRT bans and recent web of white supremacist local school poli-

cies,

177

I argued, provide an entry point for necessary conversations on

academic freedom in legal education, a space that remains an ideolog-

ically conservative institution at the national level.

178

174

From 1730 to the mid-1800s, a series of anti-literacy laws were advanced across the

U.S., prohibiting the instruction of reading and writing to enslaved Black peoples. Janet

Cornelius, “We Slipped and Learned to Read”: Slave Accounts of the Literacy Process,

1830-1865, 44 P

HYLON

171 (1983). In the face of these bans, Reverend John Berry

Meachum established what was termed the “Floating Freedom School,” a steamboat on

the Mississippi River that provided instruction to enslaved Black peoples as a school site

beyond the jurisdiction of state law. See Dennis L. Durst, The Reverend John Berry

Meachum (1789-1854) of St. Louis: Prophet and Entrepreneurial Black Educator in Histori-

ographical Perspective, 7 N. S

TAR

: J. A

. A

. R

ELIGIOUS

IST

. 1 (Spring 2004); Peri

Stone-Palmquist, Still Not Free: Connecting the Dots of Education Injustice, D

IGNITY IN

. (Feb. 13, 2020), https://dignityinschools.org/still-not-free-connecting-the-dots-of-edu-

cation-injustice/.

175

See, e.g., Melissa Mejia, The U.S. History of Native American Boarding Schools, I

N-

DIGENOUS

OUND

., https://www.theindigenousfoundation.org/articles/us-residential-

schools (last visited June 14, 2023); Smithsonian, Chapter 3: Boarding Schools, N

’

U-

SEUM

. I

NDIAN

, https://americanindian.si.edu/nk360/code-talkers/boarding-schools/ (last

visited June 14, 2023); Heather Benson, Keepers of the Canton Indian Asylum Share His-

tory, S.D. P

. R

ADIO

(updated Nov. 7, 2019), https://www.sdpb.org/blogs/arts-and-cul-

ture/keepers-of-the-canton-indian-asylum-share-history/; see sources cited supra note 20.

176

See, e.g., W.E.B. D

OIS

, B

LACK

ECONSTRUCTION IN

MERICA

, 1860–1880 (The

Free Press 1998) (1935) (examining the ways that white supremacy and anti-Blackness

have enshrined a tiered system of education in the U.S.); Clayton Pierce, W.E.B. DuBois

and Caste Education: Racial Capitalist Schooling from Reconstruction to Jim Crow, 54 Am.

Educ. Res. J. 23S (2017); Michael J. Dumas, Against the Dark: Antiblackness in Education

Policy and Discourse, 55 T

HEORY INTO

RAC

. 11 (2016); Gloria Ladson-Billings, Landing

on the Wrong Note: The Price We Paid for Brown, 33 E

DUC

. R

., 3 (2004).

177

See supra notes 13-16.

178

Touissant, supra note 47, at 5 (discussing the ways that U.S. law students across the

country have organized “to challenge the doctrinally conservative, racially homogenous,

and socially hierarchical culture of legal education”); but see also Adam Bonica, Adam

Chilton, Kyle Rozema, & Maya Sen, The Legal Academy’s Ideological Uniformity, 47 J.

EGAL

TUD

. 1, 32 (2018) (finding “that the liberal [political] tilt of the legal academy is

primarily the result of the relative scarcity of conservatives as opposed to a more leftward

Fall 2023] Envisioning Reparative Legal Pedagogies 101

This article makes the case that pedagogical repair, as a practice

and process of transforming and reimagining legal pedagogy, explicitly

recontextualizes U.S. legal education as a violent arm of the settler-

nation and as an ideological state apparatus.

179

Reparative legal peda-

gogies recognize this material and ideological manifestation by dis-

rupting and subverting the normative assumption that our teaching

must perpetuate harm. Reparative legal pedagogies seek to advance

inter-temporal and multi-level restoration for the past, lasting, and

continued harms of legal education. Like other reparative approaches

to education, a politic of reparative legal pedagogies makes no claim

to canon or authority. It is a forever-ongoing process that is expansive

to account for the realities of our profession while equally specific to

the personal-political position of each educator. Rather than identify

any one set of classroom methods or pedagogical practices, this Essay

proposes a non-exhaustive inventory of reflection questions that

might serve as points of intervention for our collective imagining of

repair as an roadmap to classrooms premised in freedom. As with all

aspects of repair, this work must begin by confronting our histories.

A. Atoning for the Past Profession

As American poet and critical theorist James Baldwin once

noted, “[t]he great force of history comes from the fact that we carry it

within us, are unconsciously controlled by it . . . history is literally

present in all that we do.”

180

Both theoretically and materially, the

past and all of its preceding legal horrors are bound up with the pre-

sent and continues to define our futures.

181

In the context of U.S. legal

education, this necessarily has implications for the work and political-

personal position of legal educators. We are the profession that legiti-

mized Jim Crow,

182

the one that imposed a doctrine of genocidal dis-

covery,

183

the people who sanctioned caging and still do,

184

and we are

shift in liberal faculty”).

179

See sources cited supra note 102 and accompanying text regarding education as a site

of social reproduction.

180

AMES

ALDWIN

, The White Man’s Guilt, in J

AMES

ALDWIN

: C

OLLECTED

SSAYS

722, 722-273. (Library of America 1995).

181

Id.; Rob Hunter, Critical Legal Studies and Marx’s Critique: A Reappraisal, 31 Y

ALE

J.L. & H

UMAN

. 389, 392 (2021) (arguing that “[t]he systematic critique of political econ-

omy must include an account of the legal constitution of commodities, production rela-

tions, and money. It must also include a thorough consideration of how law is mutually

constitutive with other forms of capitalist social relations”).

182

See, e.g., Rachel D. Godsil, Race Nuisance: The Politics of Law in the Jim Crow Era,

105 M

ICH

. L. R

. 505, 510 (2006) (chronicling the ways that southern state judges in the

era of Jim Crow enforced racially restrictive covenants, as they “allowed the judges to see

themselves as simply enforcing private agreements” while upholding the “legal ideal of

equal treatment”).

183

See Johnson v. M’Intosh, 21 U.S. 543, 576-77 (1823) (locating a “doctrine of discov-

102 CLINICAL LAW REVIEW [Vol. 30:65

the ones at the forefront of fascism.

185

The legally violent actions of

our profession are a shadow, stain, and centralized history to any

changemaking work that we seek to advance pedagogically.

I do not mean to suggest that any one legal educator is individu-

ally responsible for the choices and harms of Rudy Giuliani, of the

justices that decided the M’Intosh decision,

186

the Plessy attorney gen-

eral that opposed integration,

187

or any of their students who may go

on to wage violent legal wars in the name of lawyering. But if we are

to understand pedagogical negligence in legal training as a societal

and civil wrong—as this piece suggests, we might understand the

harmful conduct of law graduates as imputing a form of liability to our

entire profession. Legal workers, one could argue, are the product of

formal legal education and of a harmful infrastructure of pedagogy

and values that exist before their minting as attorneys. Are legal edu-

cators, then, not liable for submitting the fruits of our defective design

into the stream of commerce?

188

ery” that legally sanctioned the claim of Christian colonial powers to the North American

continent); Jedediah Purdy, Property and Empire: The Law of Imperialism in Johnson v.

M’Intosh, 75 G

. W

ASH

. L. R

. 329 (2007).

184

See, e.g., M

ICHELLE

LEXANDER

, T

ROW

: M

ASS

NCARCERATION IN

GE OF

OLORBLINDNESS

2 (2011) (drawing a historical link from chattel enslave-

ment to the current regime of mass incarceration); A

NGELA

Y. D

AVIS

, A

RISONS

B-

SOLETE

? 18 (2003) (linking the logics and aims of chattel enslavement that carry on

through practices of incarceration).

185

See sources cited supra notes 99 and 100 regarding lawyers’ current role in advancing

antidemocratic aims.

186

M’Intosh was unanimously decided by the justices of the Marshall court. M’Intosh,

21 U.S. 543.

187

Homer Plessy’s now landmark lawsuit challenging the constitutionality of racially

segregative public accommodations was initially brought against the Honorable John H.

Ferguson, judge of the criminal District Court for the parish of Orleans, for Ferguson’s

enforcement of Louisiana’s 1890 segregation law. Plessy v. Ferguson, 163 U.S. 537 (1896).

On writ to the U.S. Supreme Court, Ferguson and the state of Louisiana was represented

by Attorney General Milton Joseph Cunningham, an attorney who served in the Confeder-

ate Army and was barred in Louisiana. Gabrielle E. Clark, The Southern and Western

Prehistory of “Liberty of Contract”: Revisiting the Path to Lochner in Light of the New

History of American Capitalism, 60 A

. J. L

EGAL

IST

. 253, 266 (2020); Milton J. Cun-

ningham (1842-1916), L

. D

IGITAL

IBR

., https://louisianadigitallibrary.org/islandora/ob

ject/lasc-nonjusticesportraits%3A14 (last visited June 14, 2023). Of note, Plessy was

pardoned for his “crime” by the Governor of Louisiana 126 years after the fact. The Asso-

ciated Press, 126 Years After the ‘Separate but Equal’ Ruling, Homer Plessy Is Pardoned,

NPR (Jan. 5, 2022, 1:36PM), https://www.npr.org/2022/01/05/1070593964/homer-plessy-post

humous-pardon-plessy-v-ferguson-separate-but-equal. But 127 years later, will we hold

Cunningham and similarly situated legal actors to account for their/our role in legal

violence?

188

Here, again, I borrow from torts principles to explore an educator’s obligations

through a lens of enterprise liability in the context of defective products. In products liabil-

ity cases, an actor might be held liable if their implementation of a defective product design

caused injury when said product was “placed into the stream of commerce.” Restat 3d of

Torts: Products Liability, § 2; Richard C. Ausness, Sailing under False Colors: The Continu-

Fall 2023] Envisioning Reparative Legal Pedagogies 103

Whether imposed by law or through our commitment to healing,

pedagogical repair recognizes our collective responsibility for the vio-

lent profession we willingly inherit. To advance truth and healing, we

might ask:

How can we as educators be accountable for the past educa-

tional negligence, structural harms, and socio-legal violence ad-

vanced by our law schools, our institution(s), and our

colleagues?

Who are we accountable to for these past harms, and what does

meaningful accountability look like from legal educators?

Does your classroom room extend or disrupt a history of peda-

gogical violence in perpetuating white supremacy?

In what novel and reparative ways can our classrooms be a

space of healing—not harm?

And what role do we play in facilitating pedagogical truth and

reconciliation?

B. Healing the Past Self

As bell hooks recognized, a liberatory pedagogical practice re-

quires that an educator reflect on their respective personal-political

position relative to the work they engage in.

189

This necessarily in-

cludes a prioritization of our well-being as educators and a legitimiza-

tion of holistically caring for ourselves in a profession that does not.

Educators, hooks insisted, must heal in order to best facilitate co-

learning.

190

For the legal profession, this is a tall order. There is tremendous

lived and recorded evidence of the adverse well-being culture that our

profession imposes and navigates.

191

Law students, educators, and

professionals alike continue to report record levels of adverse mental

and emotional health.

192

Early on, law students experience unforgive-

able levels of stress and psychological pain from our profession.

193

educators and co-learners seeking to advance pedagogical repair, we

either continue or interrupt that legacy of harm at a personal level.

ing Presence of Negligence Principles in Strict Products Liability Law, 43 U. D

AYTON

. 265, 277 (2018). As we look forward to the ways that we might re-configure the

practice of law in this settler-nation, we must center the possibility for harm and impor-

tance of care in our work of justice-making.

189

HOOKS

, supra note 106, at 16-17, 22.

190

Id. at 15.

191

See sources cites supra 116 cataloging the adverse mental and emotional well-being

of the U.S. legal profession.

192

Id.

193

See Jaffe, Bender, & Organ, supra note 55, at 463-467.

104 CLINICAL LAW REVIEW [Vol. 30:65

In order for legal education to advance a politic of truth and heal-

ing, pedagogical repair must be understood to include legal educators

as one of the first points of contact for students in entering this profes-

sion. Pedagogical repair urges us to dream of the supportive educa-

tional experience we may have craved in our own journey and to find

ways of realizing such a reality each and every day. It implores us to

reflect on the normative lessons and educational wounds that bring us

to the work of teaching. It asks, first and foremost: in what ways do

you still carry the harms of your own legal (mis)education? An assess-

ment of self in this work might seek to unearth:

In what ways did you navigate harm in your law school/educa-

tional experience; what did those experiences teach you about

yourself and the values of our profession?

How can we heal the parts of ourselves that never recovered

from law school?

How are we upholding the same harmful narrative scripts that

were employed against us (e.g., “I had to do it and so do you;

students today have it so much better than I did; the law is

harmful, so I have to be harmful to best prepare my students”)?

Are we committed to reinforcing or reimagining the level of

pedagogical care we may have experienced from legal

education?

C. Addressing the Past Student

Next, I turn our attention to the aspect of repair in legal educa-

tion that has likely received the most attention of those enumerated

by this piece. Through the institutional and movement-led work to ad-

vance diversity, equity, and inclusion (“DEI”) in U.S. law schools,

there has been a steady effort to redress exclusion in legal educa-

tion.

194

A practice of pedagogical repair would ask that we join and

uplift these movements to atone for the harms inflicted against prior

formally designated law students and organic jurists, or “legal scholars

without traditional educational prerequisites.”

195

As a step toward the abolition and unimagining of legal educa-

tion’s current manifestations of exclusion and power, we might start

194

See, e.g., Findings on Racial Justice and DEI Efforts at U.S. Law Schools and Legal

Employers, N

’

SSOC

. L. P

LACEMENT

(Oct. 2020), https://www.nalp.org/1020research

(finding that “[a]s of early August 2020, nearly 90% of law schools had implemented new

anti-racism and/or DEI efforts and initiatives since the murder of George Floyd”); Explor-

ing Diversity in Legal Education, UC D

AVIS

.L. (Mar. 29, 2023), https://

law.ucdavis.edu/deans-blog/exploring-diversity-legal-education; but see Williams, supra

note 48 (discussing the ways that gatekeeping are entrenched in U.S. legal education).

195

Subversive Legal Education, supra note 26, at 2092.

Fall 2023] Envisioning Reparative Legal Pedagogies 105

by asking:

Who was not allowed to teach at and attend my law school?

How have I benefited from processes of exclusion in legal edu-

cation?

What structures were created for exclusion and in what forms

do these structures remain?

What can I do to desist from serving as a gatekeeper to this

profession and how do I work to reverse patterns of exclusion?

D. Accounting for the Present Self & Classroom

Related but distinct from our assessment of the past self is a criti-

cal reflection of the ways that we show up in and beyond the class-

room. In positioning the continued rise of white supremacy in

education and associated scrutiny of learning at all levels, the need for

educators to lay bare their methodologies and pedagogical goals has

never been clearer.

This is not, by any means, to insinuate that the CRT bans have

value beyond ideological violence. I mean only to say that this mo-

ment may force us all to reckon with the reality that educators and

classroom are never neutral, that our classrooms have never been any-

thing short of political spaces. From the lessons we teach to the syllabi

and guest speakers that make up our courses, our facilitation of learn-

ing is—as critical writers have always held

196

—an inherently political

process.

Accordingly, pedagogical repair urges us to account for the per-

sonal-political position that we occupy within the broader ecosystem

of the legal profession and the ways that our choices as educators lend

to the co-construction of an infrastructure that socializes lawyers. By

engaging in this form of deep self-reflection, we might seek to account

for the ways that we have failed as a profession to be present in our

teachings and to name the normative underpinnings of the doctrine

we dispense. Questions in this area of care might include:

How might our healing allow us to be more intentional in peda-

gogical development?

In what ways are we reflecting on the normative lessons and

cultures we are creating through course design (e.g., attendance

policies, DEI and positionality statements, inclusion of mind-

fulness practices in our classes, ensuring our courses are inher-

ently accessible, etc.)?

Are we transparent about the pedagogical goals and methodol-

196

See sources cited supra note 102.

106 CLINICAL LAW REVIEW [Vol. 30:65

ogies that our courses employ or prioritize?

Are we disrupting the assumption that legal education is a neu-

tral site of consumption?

Are we truly accountable to our students and the broader legal

community for the lessons we teach?

Does our pedagogy align with the values we hope to see in our

profession?

E. Supporting the Present Student

Through active reflection on the classroom spaces that we hold

and make, pedagogical repair equally looks to the ways that legal edu-

cators can identify and address the unique needs of our students.

Complementary to any efforts we make to be engaged in our

pedagogy should be a politic of engagement with the lived realities of

our students.

197

As has become clear in my practice as a legal educa-

tor, it is negligent for educators to suppose that their own pedagogical

dreams align with those of their students. The things that I most

craved in my journey through formal training in settler law are not

identical to those of my students, and it would be egotistical for me to

assume otherwise.

The resources, information, and support I needed in legal educa-

tion (or expect that law students may need) are specific to my own

personal-political position. If my students are to be co-educators in

the classroom, their position must be addressed too. Reparative legal

pedagogies, then, seek to locate the needs of our students and to as-

sess the how we might serve them in our facilitation of knowledge

sharing.

Taken together, questions at this dimension of care seek to inves-

tigate the educational and professional relationship between myself,

as an educator, and my students, as inheritors and future stewards of

law-sanctioned justice. Our shared development of reparative legal

pedagogies aims to repudiate the negligence, vacate the violence, and

reimagine the level of care owed in legal education. We might do this

by asking:

How can I best serve my students’ particular needs in resisting

the DisOrientation

198

that law school has demanded of them?

How can I understand the distinct and shared goals of my stu-

197

Tiffany D. Atkins, #ForTheCulture: Generation Z and the Future of Legal Education,

26 M

ICH

. J. R

ACE

& L. 115, 154 (2020) (exploring the ways that incoming law students, and

Gen Zers in particular, expect their legal educators “to stay engaged, expect to experience

discomfort, speak truth, and accept a lack of closure”).

198

See footnotes cited at supra note 62.

Fall 2023] Envisioning Reparative Legal Pedagogies 107

dents in navigating a profession that has rarely supported

them?

How can I support my students’ own visions of future legal

work while demonstrating the importance of an anti-oppressive

lens?

How am I decentering my own vision of legal pedagogy and

allowing for a plurality of pedagogical dreams?

F. Centering Present Community Legal Workers

As previous scholar-activists have noted, the expertise of commu-

nity legal advocates and of public intellectuals has historically been

delegitimized by our legal institutions.

199

From this normative under-

standing of legal knowledge, law students (and their professors, by

virtue of pedagogy) have been centered in our formulation of U.S.

legal education. This is to say that students with the resources and

access to formal legal training are prioritized in our profession’s provi-

sion of legal information and research at a national level. What might

be otherwise understood as a public right that should be afforded to

all, as some scholar-activists have argued,

200

continues to be figured as

a benefit conferred upon those whom we have professionally deemed

worthy of the practice of lawyering. Legal work, in many senses, per-

sists as a closed practice of power.

But, in an overwhelmingly white and privileged profession,

201

such a structure must be seen as operating at the express exclusion of

informally trained and historically minoritized legal advocates. A

frame of pedagogical repair interrogates the subjects and recipients of

our legal lessons and asks, above all, who they serve in material and

institutional ways. Radical reflection on this dimension of reparative

legal pedagogies might ask:

How can we, as educators, be accountable to the communities

within which we exist (e.g., the personal-political position of us

as educators, of our campus, our law school, our students, our

staff and faculty)?

What might a pedagogical duty to contextualize our classroom

199

Community Legal Advocates, D

ETROIT

UST

. C

., https://www.detroitjustice.org/

community-legal-advocates (last visited June 13, 2023); see Subversive Legal Education,

supra note 26, at 2092.

200

Subversive Legal Education, supra note 26, at 2115-17.

201

As of January 2022, the ABA reports that 81% of all U.S. lawyers identified as white

and that 61.5% identified as male. ABA, Demographics, https://www.abalegalprofile.com/

demographics.php (last visited June 14, 2023). At firms specifically, the ABA provides data

indicated that 98.78% of lawyers identified as non-disabled and 96.3% did not identify as

LGBT. Id.; Atkins, supra note 197, at 115.

108 CLINICAL LAW REVIEW [Vol. 30:65

look like?

Who do our lessons serve and in what ways have community

legal advocates been excluded from this vision of legal

education?

Are communities centered in our legal pedagogy and, if not,

what concrete steps can we take to ensure their compensated

inclusion in our work of legal knowledge sharing (e.g., guest

lectures, compensated panelists, community partners)?

Are we dismantling the false assumption that grounded learning

is limited to the clinical legal context (e.g., centering communi-

ties, lived realities, and lived experience experts in doctrinal

courses)?

G. Envisioning the Future Profession

Lastly, and perhaps most importantly, repair invites us to dream

of a legal profession that does not yet exist—one that is free from the

pedagogical pains of the past and premised in collective liberatory fu-

tures. As a point of interrogation that is linked to all others, an assess-

ment of how we might contribute to the future of the profession is

grounded in our recognition of the past-present that we occupy; our

acknowledgement or ignorance of the past defines the future we will

help foster as educators.

The development of reparative legal pedagogies requires that we

look beyond any one semester or syllabus and that we work in coali-

tions across institutions, across siloes, and across time to ask in earnest

how we might realize futures premised in freedom. It asks us to imag-

ine the eventual abolition of the modern law school as an institution

of settler harm and, as we build and dream toward this future, that we

ask one another:

How can we be accountable to members of the legal profession,

given that legal educators serve as entry points to the

profession?

How are we disrupting the perceived inevitability of pedagogi-

cal precedent in law schools (e.g., “I had to do it and so do you;

this is just the way the law is; we’ve always had ___ so we need

to keep it”)?

How are legal educators helping shape the profession of to-

morrow?

Do we understand that our classes co-construct the culture of

tomorrow’s courts, cases, and legal realities?

How might communities dictate the goals of legal education

and in what ways can our pedagogy lend itself to a goal of com-

Fall 2023] Envisioning Reparative Legal Pedagogies 109

munity sovereignty?

How are we contributing to a movement of legal education that

goes beyond the law school as a site of harm and toward a fu-

ture of community legal power?

RGENCY OF

EIMAGINING

EGAL

EDAGOGY

For several years now, I’ve started each class, event, or confer-

ence space that I participate in with a mindfulness activity to help

ground participants in the presence of the moment. “Mindfulness,” for

me, is a way of (re-)connecting to parts of self that are often severed

and discouraged in traditional legal spaces. As I tell fellow legal edu-

cators, I believe exercises like this aid our students in cultivating a

competency of radical self-reflection. This practice, I argue, invites

folks to check into a space physically and includes closing our mental

and emotional “tabs”—not unlike the closing of computer windows,

tabs, and screens—to connect with the physical or virtual space we’re

in. Before beginning, I typically start by acknowledging several things:

IRST

, I share that my mindfulness practice comes from the

mentorship and lessons of women and femmes of color, queer

and trans* storytellers of color, and multiply marginalized

folks.

ECOND

, I acknowledge that closing your eyes during these

types of activities can be triggering for survivors of trauma and

navigators of harm, so I encourage participants to engage at

their own level of comfort. I always note that I’ll keep my eyes

open throughout but that I invite folks to close theirs if they

feel comfortable doing so.

ASTLY

, I always name that practices like these will look dif-

ferent for each of our bodies, classrooms, spaces, and selves,

and that participants should feel free to engage at their own

level of comfort and in whatever way best serves them.

We breathe together for several moments while I ask a short set of

guiding questions. One that I typically ask includes: Who are you be-

yond the degrees and work that you do?

Here, usually, I get some smiles (maybe smirks) at the notion of

delinking work from oneself. But, in a profession that ties one’s posi-

tion to legal power, this response is expected. My practice asks us

when—if not now—will we be present in the work we do? When will

we be aligned in our intentions for a space, if not from the start? As a

legal educator, I aim to be engaged in the creation of educational

spaces; I prioritize truth and healing. This self-imposed duty to myself

110 CLINICAL LAW REVIEW [Vol. 30:65

and others is the dream of reparative legal pedagogies.

The work of pedagogical repair—of forging collective futures

with better ways of sharing educational space—has never been more

urgent. In a personal-political moment where history and its truth-tell-

ing in classrooms are under fierce attack at every level, it is incumbent

on all educators to assess what role they will play in bringing truth and

healing to a nation engrossed in harm. As waves of ideological vio-

lence make evident, educators can and must dispel the myth that

classrooms are anything but neutral sites of learning. Our books, syl-

labi, stories, and practices are conscious political articulations of our

values as instructors and serve to either interrupt or continue a history

of educational harms.

While law school clinics might, at first, seem uniquely positioned

to take up this mantel of repair,

202

this Essay identifies the ways that

all of U.S. legal education is structurally liable for intergenerationally

negligent pedagogical practices.

203

No matter how tempting under our

neoliberal institutions, this labor of (un)learning cannot fall to one

clinic, one department, or one person. All agents of legal education—

doctrinal, clinical, administrative, and otherwise—must take on a

heightened duty of care in our work if we are to intentionally shape

the profession of tomorrow. By joining the lineage of pedagogical

dreaming that comes before us, we can collectively work to adopt a

practice of reparative legal pedagogy and to at last address the count-

less people, cases, places, harms, and horrors that bring us to the

classroom.

In seeking to reimagine legal education, reparative legal pedago-

gies aim to unimagine legal pedagogy’s current form by centering

truth and healing in the work we do. Carrying on with legal

pedagogy’s normative form and substance serves neither us nor our

students. As countless others have said before me, reform of legal ed-

ucation will not remedy the interlocked violence that ties law schools

to the past and future harms of our legal systems—to white saviors

202

See, e.g., SpearIt & Stephanie Smith Ledesma, Experiential Education as Critical

Pedagogy: Enhancing the Law School Experience, 38 N

OVA

L. R

. 249 (2014) (exploring

the ways that “[e]xperience-based teaching is more than training students in particular le-

gal competencies but also, a means of empowering students professionally and helping

them achieve greater justice); @ClinicalLegal, Twitter (Nov. 3, 2021, 5:40AM), https://twit-

ter.com/ClinicalLegal/status/1455832183306965009 (arguing that law school clinics are

uniquely situated to provide students with the “opportunity to work alongside clients and

community partners” in the environmental justice context).

203

See, e.g, Russell Engler, The MacCrate Report Turns 10: Assessing Its Impact and

Identifying Gaps We Should Seek to Narrow, 8 C

LIN

. L. R

. 109 (2001) (writing that the

burden to improve the teaching of “fundamental lawyering skills” is borne by all of law

school curricula); see discussion infra Section I.A.

Fall 2023] Envisioning Reparative Legal Pedagogies 111

and supremacists and to patterns of imperial harm.

204

Only through

collective and active forms of dreaming might we unimagine the edu-

cational harms that inhere in law schools, while working in service of

liberation movements to reimagine the personal and political context

of learning in this country. We must commit to this work anew each

day.

And so, with questions of dreamwork and repair in mind, it’s my

hope that you leave this piece with the same hope, the same fervor,

and the same joy for reimagining U.S. law schools as I felt in writing it;

I hope you share in my eagerness to lending our classrooms, our ener-

gies, and our time to the work of imagining freedom. If you leave with

nothing else from my writing, it’s my sincere hope that you enjoyed

this space to dream.

204

See Coronado, supra note 51, at 137, 141 (exploring the ways that white saviorism

and prophecy are normatively, rhetorically, and ideologically embedded in the U.S. legal

profession).

CRITICAL CLINICAL FRAMES:

CENTERING ADOLESCENCE, RACE,

TRAUMA, AND GENDER IN PRACTICE-

BASED PEDAGOGY

DUARDO

R. F

ERRER

& K

RISTIN

N. H

ENNING

ABSTRACT

Notwithstanding the claims to neutrality of the law and the sys-

tems and stakeholders who enforce it, social science research and the

lived experience of our primarily Black youth clients reinforce how

assumptions and biases – conscious and unconscious – undermine

such claims. These assumptions and biases too often become the

frames through which our clients and their behavior are perceived,

flattening their narratives to fit more neatly into the box of “delin-

quent” and reinforcing existing systems of power, control, marginal-

ization, and oppression. As a result, our job as youth defenders in the

Georgetown Law Juvenile Justice Clinic is often to shift the frame

through which we and others view our clients and to develop a coun-

ternarrative that advances our clients’ expressed interests.

To that end, over the last ten years, we have developed a peda-

gogical approach designed to prepare our students as nascent attor-

neys to engage more strategically in the work of frames analysis,

critical reflection, and narrative reconstruction. The approach centers

around the use of “pedagogical frames” or explicit schemata through

which students intentionally and critically examine and interpret eve-

rything they encounter in furtherance of their clients’ expressed inter-

ests. While professors can identify different pedological frames best

suited to their course and client work, the Georgetown Law Juvenile

* Eduardo Ferrer is a Visiting Professor of Law in the Georgetown Juvenile Justice

Clinic and Policy Director of the Georgetown Juvenile Justice Initiative. Kristin Henning is

the Blume Professor of Law and the Director of the Georgetown Juvenile Justice Clinic &

Initiative. This essay was developed and submitted to the Clinical Law Review in conjunc-

tion with the Symposium on Promoting Justice: Advancing Racial Equity through Student

Practice in Legal Clinics co-sponsored by the Georgetown Law Clinics and the Ge-

orgetown University Racial Justice Institute. Thank you to Alicia Plerhoples, Robin Len-

hardt, and the editors of the Clinical Law Review for this opportunity. The authors also

would like to thank Lula Hagos, Katie Kronick, Nathaniel Mensah, and Amanda Rogers

for their thought partnership and for co-presenting on the idea of pedagogical frames at

the 2023 American Association of Law Schools Clinical Conference in a concurrent session

entitled “Centering the Client: A Framework for Advocacy in a Post-Ferguson World.”

Finally, we would like to thank those who participated in both the Symposium and the

AALS concurrent session whose feedback has been helpful in refining the approach out-

lined in this essay.

113

114 CLINICAL LAW REVIEW [Vol. 30:113

Justice Clinic uses adolescence; race; trauma; and sexual orientation,

gender identity, and gender expression (SOGIE) as its principal

frames. This essay will explain in further detail what we mean by

“pedagogical frame,” how we selected our principal frames, and how

we apply them in our course and client work. Ultimately, as this essay

explains, this pedagogical approach seeks to translate the essence of

critical legal theory into critical legal praxis and to integrate such

praxis into the clinical model.

NTRODUCTION

The work of social justice is the work of narrative reconstruction,

building new stories around facts that are often disregarded, in-

visibilized, and taken for granted as acceptable and unremarkable

features of social life.

– Kimberl´e Crenshaw

Meet “Kayla.”

Kayla was a seventeen-year-old, Black girl who

lived with her mother in a pre-dominantly Black neighborhood in the

District of Columbia. She was a sophomore at a DC public high

school. She enjoyed school, attended almost daily, and earned prima-

rily Bs and Cs. Kayla had an Individualized Education Plan (IEP) for

emotional disturbance. Kayla was on the dance team and liked spend-

ing the night at her friends’ homes and hanging out with her first seri-

ous boyfriend, DeAngelo.

DeAngelo was a charismatic seventeen-year-old who liked the at-

tention he received from the girls at his school. Recently, Kayla had

been hearing rumors from her friends that DeAngelo was “talking to”

another female classmate. Upset at the rumors, Kayla confronted De-

Angelo about it at school during the lunch period. When he denied

that he was cheating on Kayla with another girl, Kayla grabbed his

cellphone out of his hand and scrolled through his text messages while

making her way down the hallway.

A school resource officer (SRO) stationed at the school observed

the interaction between Kayla and DeAngelo and stepped in front of

Kayla as she was walking down the hallway. This SRO had observed

prior arguments between Kayla and DeAngelo and did not want them

to continue “disturbing” the school environment. When Kayla tried to

African American Policy Forum, “Under the Blacklight: Narrating the Nightmare

and (Re)Imagining the Possible,” Y

UBE

(May 20, 2020), https://www.youtube.com/

watch?v=E0ppfjbESV4.

For confidentiality and pedagogical reasons, “Kayla” is a composite of the exper-

iences of a number of clients. She is primarily based on the experiences of our clients

“Sharice” and “Shanna” profiled in Chapters 6 and 7, respectively, of K

RISTIN

N. H

EN-

NING

, T

AGE OF

NNOCENCE

: H

MERICA

RIMINALIZES

LACK

OUTH

(2021)

[hereinafter T

AGE OF

NNOCENCE

Fall 2023] Critical Clinical Frames 115

walk by the officer, he grabbed Kayla’s arm and asked her to come

with him. Kayla pulled away and began to run away from the officer.

After a brief chase, the officer caught up to Kayla and performed a

“takedown maneuver.” As he tried to place her in handcuffs, Kayla

continued to struggle and made it difficult for him to handcuff her.

The officer placed Kayla under arrest for robbery-snatch and resisting

arrest. The prosecutor filed a petition with those same counts the fol-

lowing day. She was also suspended from school for this incident.

Despite this being Kayla’s first arrest and the fact that De-

Angelo’s phone was immediately returned to him undamaged, the

prosecutors charged Kayla in delinquency court. During our initial in-

terview of Kayla, we learned from Kayla that her father passed away

when she was four years old. Kayla did not remember much about her

father or his passing. She told us that her mother struggled with de-

pression and substance abuse issues after his death. Kayla also shared

with us that she had been living in a series of group and foster homes

for youth in the child welfare system for the last few weeks after being

removed from her home due to allegations of physical abuse. Due to

“outbursts” at and abscondences from her child welfare placements,

Kayla’s social worker asked that the delinquency court detain Kayla in

this new matter. Kayla told us that she wanted to go home to live with

her mother, notwithstanding the allegations of physical abuse.

Unfortunately, Kayla’s case, while a composite of two clients,

represents many of the all-too-common lived experiences of young

people who become entangled in the juvenile legal system and the

common manner in which they are perceived by a variety of system

stakeholders. Indeed, for far too many of our clients, “delinquency” is

the dominant frame through which they and their behavior are

viewed. The result is that our clients’ rich and complex lives are too

often flattened by a focus on the event that brought them before the

court, casting suspicion on and attributing malintent to all of the cli-

ent’s past and future behaviors. For example, when viewed through

the frame of delinquency, it is easy to reduce Kayla’s narrative to that

of an angry, Black girl; a woman scorned; an oppositional and defiant

teen; a child who never learned to do right; or a girl who is acting too

grown for her own good. In effect, one page of one chapter in the

story of Kayla’s life becomes the title of her book in the eyes of those

around her – “disregard[ing], invisibiliz[ing], or tak[ing] for granted”

the varied nuanced layers of Kayla’s story in furtherance of their own

aims. Our job as youth defenders is to shift the frame through which

we, others, and the law and systems view our clients and to develop a

See African American Policy Forum, supra note 1.

116 CLINICAL LAW REVIEW [Vol. 30:113

narrative that advances the expressed interests of our clients.

And

our job as clinicians is to equip our students as bourgeoning attorneys

to engage strategically in that work of critical analysis, deeper under-

standing, and narrative reconstruction.

This essay lays out a pedagogical approach that we have been

developing and refining in the Georgetown Law Juvenile Justice

Clinic over the last ten years to enhance our ability to better accom-

plish this dual aim of more effectively representing our clients and

better equipping our students to further the work of social justice.

Part I of this essay introduces our Pedagogy of Frames. This section

explains the concept of “pedagogical frames,” the primary frames we

have selected for the Juvenile Justice Clinic, and why we selected

these particular frames for our work. Part II of this essay summarizes

how we apply this Pedagogy of Frames at the Georgetown Juvenile

Justice Clinic. While this paper explains the concept of pedagogical

frames from the perspective of a youth defense clinic, the approach

can be applied to most, if not all, clinics. Indeed, we believe the frames

approach can be incorporated into a wide swath of doctrinal and other

experiential courses endeavoring to equip students with the skills nec-

essary to effectively represent their clients and make this a more just

world.

I. T

EDAGOGY OF

RAMES

EFINED

Advancing justice for our primarily Black youth clients – both at

the individual and systemic levels – has been the animating motivation

for developing our pedagogy of frames. At the heart of this pursuit is

an effort to unmask and combat the various ways that supposedly neu-

tral laws and systems are used against our clients to reify an unjust

status quo and to perpetuate the marginalization and oppression of

historically disadvantaged groups. While grounded generally in critical

See N

’

. D

. S

’

R. 1.2 (2012) (“Counsel’s primary and fundamental re-

sponsibility is to advocate for the client’s expressed interests”), https://njdc.info/wp-con-

tent/uploads/2013/09/NationalJuvenileDefenseStandards2013.pdf; see also M

ODEL

ULES

ROF

’

ONDUCT

R. 1.2 (2023) (a lawyer shall abide by a client’s decisions concerning

the objectives of representation and . . . shall consult with the client as to the means by

which they are to be pursued”); M

ODEL

ULES OF

ROF

’

ONDUCT

R. 1.14 (2023)

(“When a client’s capacity to make adequately considered decisions in connection with a

representation is diminished, whether because of minority, mental impairment or for some

other reason, the lawyer shall, as far as reasonably possible, maintain a normal client-law-

yer relationship with the client“); M

ODEL

ULES OF

ROF

’

ONDUCT

R. 1.14, Comment 1

(2023) (“Nevertheless, a client with diminished capacity often has the ability to understand,

deliberate upon, and reach conclusions about matters affecting the client’s own well-being.

For example, children as young as five or six years of age, and certainly those of ten or

twelve, are regarded as having opinions that are entitled to weight in legal proceedings

concerning their custody.”)

Fall 2023] Critical Clinical Frames 117

legal theory, our endeavor, given our status as client-centered advo-

cates and clinicians, is practical. As a result, our pedagogy of frames

can be considered a framework for translating critical legal theory into

critical legal praxis and for integrating such praxis into the clinical

model.

A. The Elements of a Pedagogical Frame

Broadly speaking, framing theory and frames analysis is a multi-

disciplinary approach to understanding how people make sense of the

world around them. Erving Goffman, the father of frame analysis, be-

gins his examination of how individuals come to understand the world

with the assumption that “when individuals attend to any current situ-

ation, they face the question: ‘What is it that is going on here?’”

other words, individuals seek to find the “definition of a situation,”

even if they are not consciously or intentionally constructing such a

definition themselves but rather adopting a definition socially created

for them.

Goffman argues that the definition an individual adopts for

a specific situation

depends on a host of layered issues, including, but

not limited to, focus,

perspective,

a simplification bias,

time orien-

tation,

and natural and social norms.

To Goffman, a “frame” then

is the sum of the “principles of organization” or the “schemata of in-

terpretation” that an individual applies to a given situation to

“render[ ] what would otherwise be a meaningless aspect of the scene

into something meaningful.”

And “frame analysis” is the process of

examining how this “organization of experience” takes place.

Building upon the work of Goffman and others, communication

theory defines a “frame” as a “central organizing idea for making

sense of relevant events and suggesting what is at issue.”

Frames

See e.g., Margaret E. Johnson, An Experiment in Integrating Critical Theory and

Clinical Education, 13 A

. U. J. G

ENDER

. P

’

& L. 161, 171-84 (2005) [hereinafter

Integrating Critical Theory and Clinical Education].

RVING

OFFMAN

, F

RAME

NALYSIS

: A

SSAY ON THE

RGANIZATION OF

XPE-

RIENCE

, 8 (1974).

Id. at 1-2.

Id. at 10 (defining a “strip” as “any arbitrary slide or cut from the stream of ongoing

activity, including here sequences of happenings, real or fictive, as seen from the perspec-

tive of those subjectively involved in sustaining an interest in them.”).

Id. at 8.

Id. at 8-9.

Id.

Id. at 9.

Id. at 22.

Id. at 21.

Id. at 11.

Jim A. Kuypers, Framing Analysis from a Rhetorical Perspective, in D

OING

EWS

RAMING

NALYSIS

: E

MPIRICAL AND

HEORETICAL

ERSPECTIVE

s (eds. Paul D’Angelo &

118 CLINICAL LAW REVIEW [Vol. 30:113

draw their power by “filtering our perception of the world” by in-

creasing or reducing the saliency of information in a manner that gives

the information particular meaning.

Communication theory explores

the manner in which individuals not only use frames to understand

their world, but also employ frames to attempt to persuade others to

make sense of the world in a particular way.

In his essay “Framing Analysis from a Rhetorical Perspective,”

Jim A. Kuypers describes framing from the perspective of the

“framer” as “the process whereby communicators act – consciously or

not – to construct a particular point of view that encourages the facts

of a given situation to be viewed in a particular manner, with some

facts made more noticeable than others.”

This process “act[s] to de-

fine problems, diagnose causes, make moral judgments, and suggest

remedies.”

As a result, Kuypers describes the action of framing –

when done intentionally – as a rhetorical process

as it involves “[t]he

strategic use of communication, oral or written, to achieve specifiable

goals.”

As such, framing in the rhetorical sense is a device used to

persuade others to agree “with the communicator that a certain value,

action, or policy is better than another.”

Thus, frames are used by

individuals both as a way of personally understanding the world and

as a way to construct the world for those around them.

Using framing theory and frame analysis as the foundation of our

“pedagogy of frames,” we define a “pedagogical frame” as an explicit

schema through which students are encouraged to intentionally and

critically examine and interpret everything they encounter in further-

ance of their representation of their clients’ expressed interests. Our

definition of a pedagogical frame has five key elements.

First, the foundation of the pedagogical frame is the schema. The

schema is the central idea, theory, construct, or theme through which

information is filtered and organized.

We split possible schema into

Jim A. Kuypers), 300 (2010).

Id.

Id. at 301.

Id. at 300.

Id. at 288 (requires intentional selection of language and knowledge of goals prior to

choosing language).

Id.

A number of studies have shown that the manner in which a proposed solution is

framed can have a significant impact on the level of support for the proposed solution. See

Edward A. Zelinsky, Do Tax Expenditures Create Framing Effects – Volunteer Firefighters,

Property Tax Exemptions, and the Paradox of Tax Expenditure Analysis, 24 V

. T

797, 807-11, 821-25 (2004) (providing various examples of the impact of framing on the

adoption of particular proposals).

Goffman, supra note 6, at 21 (“Primary frameworks vary in degree of organization.

Some are neatly presentable as a system of entities, postulates, and rules; others – indeed,

Fall 2023] Critical Clinical Frames 119

two broad categories – experiential and structural. We define experi-

ential schema as those organized around a body of research, theory, or

construct that relates to the “structure of experience individuals have

at any moment of their social lives.”

Examples of experiential

frames include race, life stages, gender, trauma, disability, and socio-

economic status. We define structural schema as those organized

around more abstract themes that are related to “the structure of so-

cial life” and, thus, can cut across experiential frames.

Examples of

structural frames include essentialism, epistemology, anti-subordina-

tion, and agency.

Second, pedagogical frames are explicit. Based on a professor’s

experience representing clients and their learning goals for the course,

the professor selects and names specific schema or schemata that 1)

will aid their students in their client representation and 2) will add

layers of learning to explore throughout the coursework.

This nam-

ing of the pedagogical frames should take place both on a practical

and metacognitive level. On a practical level, naming schema makes

the implicit, explicit, and the invisible, visible.

As discussed supra,

individuals often use frames either implicitly or subconsciously to

most others – appear to have no apparent articulated shape, providing only a degree of

understanding, an approach, a perspective. Whatever the degree of organization, however,

each primary framework allows its user to locate, perceive, identify, and label a seemingly

infinite number of concrete occurrences defined in its terms.”).

Goffman, supra note 6, at 13.

See id.; see also id. at 22 (“Social frameworks . . . provide background understanding

for events that incorporate the will, aim, and controlling effort of an intelligence, a live

agency, the chief one being the human being. Such an agency is anything but implacable; it

can be coaxed, flattered, affronted, and threatened.”).

See Carolyn Grose & Margaret E. Johnson, Braiding the Strands of Narrative and

Critical Reflection with Critical Theory and Lawyering Practice, 26 C

LIN

. L. R

. 203, 215

(2019) (“normative narrative construction is guided by critical theories. By ‘critical theo-

ries,’ in general, we mean theories of thought and argument that critique current systems,

structures, and practices through various lenses, such an anti-subordination, agency, equal-

ity, and justice.”); Johnson, Integrating Critical Theory and Clinical Education, supra note

5, at 177-84 (discussing the use of critical theory to explore “differences and their impact

on lawyering,” “a systemic critique of the various legal and governmental institutions with

which the clients and students will interact throughout the year,” and “the role of power,

privilege, and agency within the context of differences and the systemic critiques.”).

See Wallace J. Mlyniec, Where to Begin? Training New Teachers in the Art of Clinical

Pedagogy, 18 C

LIN

. L. R

. 101, 117 (“We also reinforce the importance of “naming” our

activities and techniques for students so that they are clearly identified for later use. Nam-

ing involves giving students frameworks within which they can fit the teachers’ questions.

For many students, a failure to “name” may result in the student knowing how to do a

specific task but not how to translate the lesson to other similar tasks. Naming also serves

to create a shared vocabulary for the teachers and students to use during the clinic and for

the student to use as he or she develops into a professional.”) (citations omitted).

Grose & Johnson, supra note 27, at 217 (“We need to make explicit to ourselves the

lenses we use to see the world, and how those lenses affect how we see our clients.”);

Johnson, Integrating Critical Theory and Clinical Education, supra note 5, at 163.

120 CLINICAL LAW REVIEW [Vol. 30:113

make meaning of information. Thus, the process of naming the se-

lected schemata models intentionality both in understanding and per-

suasion. On a metacognitive level, students should come to

understand frame analysis itself so they may learn how to identify,

analyze, and select frames themselves as well as deconstruct, shift, or

reinforce the frames selected by others. Indeed, in an ideal world, stu-

dents should be able to critique the specific pedagogical frames cho-

sen by the professors themselves. Thus, the purpose of the

pedagogical frame is not merely to encourage students to view the

casework and material through a particular filter chosen by the pro-

fessor, but to equip students with the transferable skill of frame analy-

sis generally.

Third, because information is clarified through a schema and be-

cause frame analysis is a skill, a pedagogical frame is fundamentally a

tool. It is a tool for narrative construction, deeper understanding,

meaning making, and persuasion.

Importantly, the use of the tool is

not the end, but rather a means to achieve the end of the expressed

interests of the client.

Consequently, selected schema must be used

strategically. Doing so, requires students, among other things, to un-

derstand their client’s expressed interests and think ahead about the

potential impact and efficacy of applying a particular schema to a situ-

ation.

In other words, while students might use a pedagogical frame

to seek a better personal understanding of a particular client or case,

they may not necessarily deploy the use of such frame for the pur-

poses of persuasion in that case. Thus, at its core, a pedagogical frame

is an intentional, client-centered tool.

Fourth, pedagogical frames employ a critical approach.

Peda-

gogical frames are critical as they encourage students to engage in

“the systematic process of illuminating and evaluating products of

See Grose & Johnson, supra note 27, at 206 (“Narrative construction requires identi-

fying and working with (or around) embedded norms, and persuasive narratives depend on

filtering information through a normative lens. But the theory of narrative construction

does not direct the narrative constructor as to what norms to include or through which lens

to filter information.”).

Kuypers, supra note 16, at 297 (“Perspectives are to help a critic, not direct the

criticism. . ..”).

See id. at 288 (“Persons who are interested in influencing how their messages are

received will plan ahead; they think ahead to the potential impact of their words).

See Grose & Johnson, supra note 27, at 208 (“Narrative theory leads to an under-

standing that lawyers with their clients are constructors of narratives, and, as such, need to

make intentional choices about that construction.”).

See id. at 215 (“normative narrative construction is guided by critical theories. By

‘critical theories,’ in general, we mean theories of thought and argument that critique cur-

rent systems, structures, and practices through various lenses, such as anti-subordination,

agency, equality, and justice.”).

Fall 2023] Critical Clinical Frames 121

human activity”

with the goal of “promot[ing] greater appreciation

and understanding.”

This critical process requires students to evalu-

ate and adopt various perspectives that serve as a “frame of refer-

ence” for the student in their evaluation of the case.

And while the

various pedagogical frames may aid the student with their analysis, it

is ultimately the student who is directing the process.

Students ex-

amine the frames through which other stakeholders view the client

and the case while also selecting their own frames to apply to their

evaluation.

When strategic, students also attempt to persuade other

stakeholders to adopt and apply a particular frame selected by the

student in the same manner in which the student is applying it.

inviting their audience to agree with the student’s interpretation of the

client or case, the student must justify the selection of the frame of

reference and provide evidence in support of why their analysis is

valid.

Essentially, students must build an argument convincing the

audience that their critical perspective is one the audience should es-

pouse as well.

Fifth, pedagogical frames are pervasive as students are en-

couraged to apply them to everything they encounter in clinic – the

law, the facts, root causes, solutions, relationships, values, and our cli-

Kuypers, supra note 16, at 290 (citing Andrews, Leff, Terrill (1998) at 6).

See id. at 290; see also Johnson, Integrating Critical Theory and Clinical Education,

supra note 5, at 171 (“With the assistance of critical theory, clinical students strengthen the

lawyer-client relationship by developing greater empathy and a stronger sense of client-

centeredness; improve their creative lawyering due to a better understanding of context

and case theory; and further their lawyering for social justice.”).

Kuypers, supra note 16, at 296-97 (“Simply put, a critical perspective serves as a

frame of reference for the critic; it guides the apprehension of an interaction with the

rhetorical act being analyzed. Different perspectives allow critics to see different aspects of

the rhetorical act. . .. When a perspective is adopted, it allows critics to see an artifact

differently than if no perspective was adopted. In a sense, the critic is allowed to see the

world in a particular way.”); see also see id. at 293 (“the best criticism allows for flexible

application of a perspective, allowing for personal insight and interests to guide the

criticism.”).

See id. at 297 (“The best criticism does not use perspectives as formulas. Although

they do suggest a particular way of viewing the world, it is the critic who directs the

criticism.”).

Students will also appraise the reasons why other stakeholders have selected – con-

sciously or unconsciously – specific frames. See Goffman, supra note 6, at 8 (“Different

interests will . . . generate different motivational relevancies.”).

Kuypers, supra note 16, at 290 (citing Andrews, Leff, Terrill (1998) at 6) (“[C]riticism

presents and supports one possible interpretation and judgment. This interpretation, in

turn, may become the basis for other interpretations and judgments.’”); see also id. at 293

(“The best critics simply do not make a judgment without supplying good reasons for

others to agree with them.”).

See id. at 292. (“In short, critics must invite their audiences to agree with them. This

is accomplished through stating their case and then providing evidence for the audience to

accept or reject.”).

See id. at 292-96.

122 CLINICAL LAW REVIEW [Vol. 30:113

ent’s experiences.

Pedagogical frames then help students develop

“new ways of seeing law, lawyers, and communities in action”

and

“braid the strands of narrative, critical reflection, and critical the-

ory.”

In this way, the use of pedagogical frames itself becomes a

meta-frame – a methodology for confronting the false claims of neu-

trality, certainty, and replicability of the law and the systems and peo-

ple that enforce it. As a result, pedagogical frames are as much a

practice – a mode of moving in the world – as they are a tool that

provide a structure for engaging in critical legal praxis.

In sum, a pedagogical frame is an explicit, intentional, critical tool

designed to equip students with the ability to 1) develop a deeper ap-

preciation and understanding of their casework and coursework; 2)

more effectively advocate on behalf of their client’s expressed inter-

est; and 3) sharpen their skills as an attorney.

B. Pedagogical Frames for a Youth Defense Clinic

Founded in 1973 by Judith Areen and Wallace Mlyniec, the Ge-

orgetown Law Juvenile Justice Clinic (JJC) was one of the first law

school clinics specializing in children’s issues to launch in the United

States and remains the longest continuously running.

Founded six

years after the landmark Supreme Court decision extending the right

to counsel and procedural due process to children charged in juvenile

court, the JJC sought to fulfill the mandate of the Gault decision, ex-

pand the legal rights of children, and protect children from maltreat-

ment by their parents or the government. In its early years, the clinic

handled all types of cases involving children – delinquency, education,

and child welfare among others – and helped formulate policy at the

local and federal levels. Today, the Georgetown Law Juvenile Justice

Clinic zealously and holistically represents youth charged in delin-

quency court in the District of Columbia.

See id. at 301 (“When highlighting some aspect of reality over other aspects, frames

act to define problems, diagnose causes, make moral judgments, and suggest remedies.”);

Phyllis Goldfarb, Beyond Cut Flowers: Developing a Clinical Perspective on Critical Legal

Theory, 43 Hastings L.J. 717, 718 (1992) (highlighting “rule skepticism” and “fact skepti-

cism” as examples of overlapping concerns between clinical legal education and critical

legal studies).

Anthony V. Alfieri, Rebellious Pedagogy and Practice, 23 C

LIN

. L. R

. 5, 15-16

(2016).

Grose & Johnson, supra note 27, at 205.

See id. at 204-05.

About Our Clinic, G

EORGETOWN

, https://www.law.georgetown.edu/experien-

tial-learning/clinics/our-clinics/juvenile-justice-clinic/about-our-clinic-5/ (last visited Aug.

16, 2023)

In 2015, the Juvenile Justice Clinic launched the Georgetown Juvenile Justice Initia-

tive (GJJI) in order to increase Georgetown’s commitment and capacity to tackle the most

pressing issues facing the juvenile legal system, including the over-criminalization of youth,

Fall 2023] Critical Clinical Frames 123

Our clients in the clinic are almost exclusively Black youth be-

tween the ages of 12 and 21 from historically under-resourced families

and neighborhoods in the District of Columbia. Indeed, Black youth

typically comprise between 90% and 95% of annual youth arrests in

DC,

and approximately 70% of DC youth arrested reside in the

three poorest (and easternmost) wards of the city.

Additionally, the

vast majority of our clients have experienced some level of trauma

prior to becoming system-involved.

Given the demographics and

common experiences of our clients, we have adopted four primary

pedagogical frames for our clinic: 1) Adolescence; 2) Race; 3) Trauma;

and 4) Sexual Orientation, Gender Identity, and Gender Expression

(“SOGIE”).

In developing the schema for each of these four frames,

we looked to social science, critical legal theory,

and our clients’

lived experience for inspiration. Below we will discuss not only how

we construct the schema for each frame but also provide concrete ex-

the racial and economic disparities that exist within the system, and the inadequate legal

representation far too many youth receive. The Juvenile Justice Initiative operates na-

tional, regional, and local initiatives, including serving as the host of the Mid-Atlantic

Gault Center. The mission of the Georgetown Juvenile Justice Initiative is to advocate for

a smaller, better, and more just juvenile legal system in the District of Columbia, the Mid-

Atlantic region, and across the country.

See e.g. Criminal Justice Coordinating Council, D

ISTRICT OF

OLUMBIA

FY18 D

IS-

PROPORTIONATE

INORITY

ONTACT

LAN

1-2, https://ojjdp.ojp.gov/sites/g/files/

xyckuh176/files/media/document/dc-fy18-dmc-plan_508.pdf (last visited Aug. 16, 2023) (re-

porting that Black youth made up 93% of arrests in FY18 and that “so few White youths

have penetrated the District’s juvenile justice system, that we cannot calculate Relative

Rate Indices for any point of contact beyond the referral to juvenile court”). In contrast,

Black youth only make up two-thirds of the adolescent population in DC. Puzzanchera, C.,

Sladky, A. and Kang, W. (2021). “Easy Access to Juvenile Populations: 1990-2020,” https://

www.ojjdp.gov/ojstatbb/ezapop/ (last visited Aug. 16, 2023).

Biannual Reports on Juvenile Arrests, Metropolitan Police Department, https://

mpdc.dc.gov/node/208852 (analysis on file with author).

For example, a study of a sample of DC youth with delinquency-system-involvement

found that approximately 12% had experienced homelessness; 50% of the youth had re-

ported cases of neglect; 23% had reported cases of abuse; nearly 15% had been removed

from their homes prior to delinquency-system-involvement; nearly 25% received TANF;

and nearly 75% had received Medicaid for over one year. C

RIMINAL

USTICE

OORDINAT-

ING

OUNCIL

, A S

TUDY OF

ACTORS THAT

FFECT THE

IKELIHOOD OF

UVENILE

US-

TICE

YSTEM

NVOLVEMENT

11 (2022), https://cjcc.dc.gov/sites/default/files/dc/sites/cjcc/

CJCC%20-%20A%20Study%20of%20Factors%20that%20Affect%20the%20Likelihood

%20of%20Juvenile%20Justice%20System%20Involvement%20%28October%202022%

29.pdf.

These are not the only frames that we discuss throughout the year. For instance,

disability and poverty come up often in our clinic work as well. However, these four peda-

gogical frames are the ones that we intentionally name and center in our teaching and

representation. See Johnson, Integrating Critical Theory and Clinical Education, supra note

5, at 174 (discussing antisubordination and essentialism as frames).

Id. at 162 (“Feminist legal theory, critical race theory, and poverty law theory serve

as useful frameworks to enable students to deconstruct assumptions they, persons within

institutions, and broader society make about the students’ clients and their lives.”).

124 CLINICAL LAW REVIEW [Vol. 30:113

amples of how we might apply the frame in an individual case using

Kayla’s case as an example.

1. Adolescence

The scientific research regarding adolescent development pro-

vides the foundation upon which we constructed our pedagogical

frame of adolescence.

Specifically, there are three key interrelated

concepts from the research that comprise the schema for the frame: 1)

normative adolescent development; 2) neurological immaturity; and

2) psychosocial immaturity.

“Normative adolescent development” refers to a set of common

milestones and characteristics that describe the typical pattern of de-

velopment for the period of adolescence.

Given the existence of this

norm across adolescents as a group, the law and practice can and

should treat all youth as a discrete class separate from adults and must

accommodate these common developmental characteristics when ap-

plied.

Neurological and psychosocial immaturity are examples of

normative features of adolescence that the law and practice should

accommodate.

The concept of neurological immaturity recognizes that the brain

of an individual is not fully developed until approximately the individ-

ual’s mid-twenties. Indeed, the period of adolescence is marked by

rapid and important changes in terms of brain composition and struc-

ture. For instance, during adolescence, the brain is rewiring itself

through the processes of pruning and myelination in order to become

more efficient and more effective at responding to the individual’s

lived environment. Additionally, the various regions of the brain con-

tinue to develop, with the region responsible for executive functioning

being the last region to fully develop.

As a result, youths’ brains are

particularly malleable and, thus, have a greater capacity for change

and growth than adults. In that context, a delinquent act most often

reflects transitory behavior not the character of the individual who

committed the act.

The concept of psychosocial immaturity recognizes that while

youth reach a similar cognitive maturity to adults at around age 16,

See generally Eduardo R. Ferrer, A New Juvenile Jurisprudence: How Adolescent

Development Research and Relentless Defense Advocacy Revolutionized Criminal Law and

Jurisprudence, in R

IGHTS

, R

ACE

, & R

EFORM

: 50 Y

EARS OF

HILD

DVOCACY IN THE

UVENILE

USTICE

YSTEM

(Henning, Cohen, & Marrus, eds., 2018) [Hereinafter A New

Juvenile Jurisprudence].

See id. at 55-66.

See id.

See id. at 58-60.

Fall 2023] Critical Clinical Frames 125

youth do not develop the same psychosocial maturity as adults until

they are around age 25. This lack of psychosocial maturity manifests

as youth being more impulsive, more focused on short-term rewards,

less averse to risk, and more susceptible to the influence of peers,

among other things.

Given this underdeveloped psychosocial capac-

ity, youth have diminished decision-making capacity relative to adults,

especially when under stress,

and, as a result, are less culpable.

Moreover, once a youth’s brain is fully developed and they reach the

same psychosocial maturity as adults, the vast majority of adolescents

– including those charged with violent crimes – naturally desist engag-

ing in delinquent behavior.

This again reinforces that delinquent be-

havior, by and large, is a normative feature of adolescence and not

indicative of who the individual will grow to be in adulthood.

The frame of adolescence thus lends itself easily to being used for

mitigation. Because youth as a class are less culpable and more malle-

able, adolescence is both a time of great opportunity and great peril.

Positive interventions during adolescence promote healthy develop-

ment and desistance whereas negative interventions can do significant

harm and increase recidivism.

Thus, the manner in which judges,

Laurence Steinberg, Dustin Alpert, Elizabeth Cauffman, Marie Banich, Sandra Gra-

ham, & Jennifer Woolard, Age Differences in Sensation Seeking and Impulsivity as Indexed

by Behavior and Self-Report: Evidence for a Dual Systems Model, 44 D

. P

SYCHOL

. 1764

(2008); Laurence Steinberg, Elizabeth Cauffman, Jennifer Woolard, Sandra Graham, &

Marie Banich, Are Adolescents Less Mature than Adults? Minors’ Access to Abortion, the

Juvenile Death Penalty, and the Alleged APA “Flip, Flop”, 64 A

. P

SYCHOLOGIST

583, 587

(2009).

B.J. Casey & Kristina Caudle, The Teenage Brain: Self Control, 22 C

URRENT

IREC-

TIONS

SYCHOL

. S

. 82, 82–87 (2013) (finding that cognitive capacity of a teenager is un-

dermined by stress); Bernd Figner et al., Affective and Deliberative Processes in Risky

Choice: Age Differences in Risk Taking in the Columbia Card Task, 35 J.

XPERIMEN-

TAL

SYCHOL

. 709, 728 (2009) (finding that adolescents in emotional situations were more

likely than children and adults to take risks).

See Edward P. Mulvey, Highlights from Pathways to Desistance: A Longitudinal

Study of Serious Adolescent Offenders 1 (Office of Juvenile Justice & Delinquency Preven-

tion (March 2011), https://www.pathwaysstudy.pitt.edu/documents/OJJDP%20Fact%20

Sheet_Pathways.pdf (finding that “approximately 91.5 percent of youth in the study re-

ported decreased or limited illegal activity during the first 3 years following their court

involvement.”).

See id. at 2 (finding that “Longer stays in juvenile institutions do not reduce recidi-

vism, and some youth who had the lowest offending levels reported committing more

crimes after being incarcerated.”); M

ARK

W. L

IPSEY ET AL

., C

FOR

UVENILE

USTICE

EFORM

, I

MPROVING THE

FFECTIVENESS OF

UVENILE

USTICE

ROGRAMS

: A N

ER-

SPECTIVE ON

VIDENCE

-B

ASED

RACTICE

23-25 (2010), (finding that “programs with a

therapeutic philosophy were notably more effective than those with a control philoso-

phy”), https://njjn.org/uploads/digital-library/CJJR_Lipsey_Improving-Effectiveness-of-Ju-

venile-Justice_2010.pdf; R

ICHARD

ENDEL

, T

ENTENCING

ROJECT

OUTH

NCARCERATION

AILS

: A

PDATED

EVIEW OF THE

VIDENCE

12-19 (March 2023),

https://www.sentencingproject.org/reports/why-youth-incarceration-fails-an-updated-re-

view-of-the-evidence/ (discussing the harms and counterproductive outcomes resulting

126 CLINICAL LAW REVIEW [Vol. 30:113

prosecutors, and probation officers respond to “delinquent” behavior

can undermine not only the young person’s individual development

but also public safety. For example, in Kayla’s case, there is likely little

to no factual dispute – she took the phone from her boyfriend and

struggled when the officer tried to handcuff her. As a result, from the

perspective of many of the system’s stakeholders, the primary ques-

tion of the case is what to do with Kayla, and, more specifically,

whether to detain and/or commit Kayla. As non-defense stakeholders

seek to answer those questions, we advocate for stakeholders to view

Kayla’s behavior through the above-described frame of adolescence.

Specifically, to the extent delinquency court intervention is even ap-

propriate in Kayla’s case, it should be the lightest touch possible given

the nature of the offense, Kayla’s lack of prior contacts with the delin-

quency court system, and her low risk of recidivism. Thus, any re-

quests for detention or commitment should be denied as harmful and

counterproductive and any interventions by the juvenile legal system

should be minimal.

While adolescence is an effective frame to deploy for purposes of

mitigation, it is critical to consider how the frame may be used in all

other aspects of the case, including litigation. Specifically, in order to

push back on the criminalization of normative adolescence itself, we

consider how we might use the frame of adolescence to challenge the

legal interpretation of Kayla’s undisputed behavior. For instance, rob-

bery in the District of Columbia requires proof that the individual

“took the property and carried it away without right to do so and with

the specific intent to steal it.”

The instruction defines “specific intent

to steal” as the intent “to deprive [name of complainant] of his/her

property and to take it for his/her own use.”

On its face, Kayla’s

undisputed behavior appears to meet the criteria – she took De-

Angelo’s phone against his will so that she could view his text conver-

sations. However, when viewed through the frame of adolescence,

Kayla’s intent reflects the hallmarks of adolescence – impulsive, domi-

nated by emotion, focused on immediate gratification – not a desire to

cause harm, realize unearned gain, or break the law. Kayla was in love

with DeAngelo. She was not breaking up with DeAngelo when she

took his phone; to the contrary, Kayla just wanted to make sure De-

Angelo was not cheating on her. Ultimately, but for the immediate

intervention by the SRO, Kayla very likely would have given De-

from youth incarceration.)

Comment, Criminal Jury Instructions for the District of Columbia, No. 4.300 (LEXIS

2022) (comment to the Criminal Jury Instruction for “Robbery”).

Criminal Jury Instructions for the District of Columbia, No. 4.300 (LEXIS 2022) (the

Criminal Jury Instruction for “Robbery”).

Fall 2023] Critical Clinical Frames 127

Angelo his phone back (or else risk damaging a relationship she

wanted to continue). Thus, when her intent is understood through the

frame of adolescence, it fails to meet the legal elements of robbery.

Additionally, the frame of adolescence can also be used to build a

defense theory to the resisting arrest charge. Given the overall context

of the situation,

one could argue that the SRO used more force than

“reasonably necessary” when he tackled Kayla to the ground instead

of following her, enlisting the assistance of other school staff, or other-

wise attempting to deescalate the situation before using such violent

force.

Because the officer used excessive force, then Kayla is entitled

to use an amount of force “reasonably necessary for protection.”

Here, utilizing the frame of adolescence, we would argue that Kayla

not only used no more force than a reasonable person would use in a

similar situation, but that she certainly used no more force than a

“reasonable child” would use after being tackled from behind by an

officer in a similar situation.

2. Race

Social science research and the lived experiences of our clients

provide the foundation upon which we constructed our pedagogical

frame of race.

Specifically, there are two broad key interrelated con-

cepts that comprise the schema for the frame: 1) implicit racial bias;

and 2) policing as trauma.

Implicit racial bias is unfortunately a factor that can influence the

decision making of all juvenile legal system stakeholders, including

defense counsel.

Indeed, this bias can be thought of as the result of

For instance, the officer knew Kayla; the situation occurred in school between two

youth who were in a romantic relationship; and the officer had additional resources for

finding and discussing the situation with Kayla.

Criminal Jury Instructions for the District of Columbia, No. 4.116 (LEXIS 2022) (the

Criminal Jury Instruction for “Resisting Arrest or Preventing Arrest or Detention of

Another”).

See id.

See generally Marsha L. Levick & Elizabeth-Ann Tierney, T

NITED

TATES

U-

PREME

OURT

DOPTS A

EASONABLE

UVENILE

TANDARD IN

J.D.B.

. N

ORTH

ARO-

LINA FOR

URPOSES OF

IRANDA

USTODY

NALYSIS

: C

AN A

ORE

EASONED

USTICE

YSTEM FOR

UVENILES

EHIND

?, 47 H

ARV

. C.R.-C.L. L. R

. 501 (2012)

(explaining the concept of the reasonable child standard).

See generally Henning, T

AGE OF

NNOCENCE

, supra note 2; Kristin N. Henning,

The Reasonable Black Child: Race, Adolescence, and the Fourth Amendment, 67 Am. U. L.

Rev. 1513 (2018) [hereinafter The Reasonable Black Child].

See Kristin N. Henning, Race, Paternalism, and the Right to Counsel, 54 A

. C

RIM

L. R

. 649, 653–57 (2017) (summarizing studies showing evidence of implicit racial bias in

the juvenile legal system); see also Henning, The Reasonable Black Child, supra note 69 at

1544 (“These types of cognitive biases are not limited to rogue officers who abuse their

power or intentionally target racial minorities with discriminatory motives. People of all

races have implicit racial biases that may negatively affect their behavior, even those who

128 CLINICAL LAW REVIEW [Vol. 30:113

subconsciously interpreting information through a negative frame of

race.

The research shows that implicit racial bias can have particu-

larly devastating effects on Black youth. For instance, Black youth are

often perceived as significantly older and, thus, both more culpable

and less deserving of the protections of adolescence than White youth

of the same age.

Black youth are also perceived to be more aggres-

sive and more dangerous, and, therefore, as more of a threat than

White youth.

Left unchecked, implicit racial bias leads to the in-

creased surveillance, arrest, prosecution, detention, commitment, and

transfer to adult court of Black youth. As a result, it is critical that

defenders intentionally name implicit racial bias subconsciously influ-

encing the decisions making of juvenile legal system stakeholders and

advocate for stakeholders to correct and overcome them.

“Policing as trauma” refers to the significant traumatic toll that

over-policing has on Black youth.

Numerous research studies have

confirmed the negative impact that Black youths’ direct experience

ardently reject racism and discrimination and have positive relationships with people of

other races. Even black Americans have some implicit racial bias in associating blackness

with crime.”).

Henning, The Reasonable Black Child, supra note 69, at 1543 (“Implicit bias is so

subtle that we are generally not aware of it and may act on it reflexively without realizing

it. Implicit racial bias evolves from our repeated exposure to cultural stereotypes in society

and is activated by environmental stimuli, including cultural stereotypes, that cause us to

associate crime and race, particularly crime and blackness. Once stereotypes and biases are

subconsciously triggered, they may evoke negative judgments and behaviors that are invol-

untary and unplanned.”).

See Phillip Atiba Goff et al., The Essence of Innocence: Consequences of Dehuman-

izing Black Children, 106 J. P

ERSONALITY

& S

. P

SYCHOL

. 526, 527-32 (2014); Henning,

The Reasonable Black Child, supra note 69 at 1538-60 (summarizing the research); R

E-

BECCA

PSTEIN

, J

AMILA

J. B

LAKE

& T

HALIA

ONZ

ALEZ

, G

EORGETOWN

OV-

ERTY

& I

NEQUALITY

, G

IRLHOOD

NTERRUPTED

: T

RASURE OF

LACK

IRLS

’C

HILDHOOD

(2017), https://genderjusticeandopportunity.georgetown.edu/wp-con

tent/uploads/2020/06/girlhood-interrupted.pdf [hereinafter Girlhood Interrupted].

L. Song Richardson, Arrest Efficiency and the Fourth Amendment, 95 M

INN

. L. R

2035, 2046–48 (2011); Justin D. Levinson & Danielle Young, Different Shades of Bias: Skin

Tone, Implicit Racial Bias, and Judgments of Ambiguous Evidence, 112 W

EST

. V

. L. R

307, 310-11 (2010); Kurt Hugenberg & Galen V. Bodenhausen, Facing Prejudice: Implicit

Prejudice and the Perception of Facial Threat, 14 P

SYCHOL

. S

. 640, 640 (2003); Joshua

Correll et al., Across the Thin Blue Line: Police Officers and Racial Bias in the Decision to

Shoot, 92 J. P

ERSONALITY

& S

. P

SYCHOL

. 1006, 1009 (2007); Joshua Correll et al., The

Police Officer’s Dilemma: Using Ethnicity to Disambiguate Potentially Threatening Indi-

viduals, 83 J. P

ERSONALITY

& S

. P

SYCHOL

. 1314, 1317 (2002); see also Henning, The

Reasonable Black Child, supra note 69 at 1538-60 (summarizing the research).

John F. Irwin & Daniel L. Real, Unconscious Influences on Judicial Decision-Mak-

ing: The Illusion of Objectivity, 42 M

EORGE

L. R

. 1, 8–9 (2010); Jerry Kang, Trojan

Horses of Race, 118 Harv. L. Rev. 1489, 1529–30, 1529 n. 207 (2005); Jeffrey J. Rachlinski

et al., Does Unconscious Racial Bias Affect Trial Judges?, 84 N

OTRE

AME

. L. R

. 1195,

1196-97 (2009); see also Henning, The Reasonable Black Child: Race, Adolescence, and the

Fourth Amendment, at 1572.

See Henning, T

AGE OF

NNOCENCE

, supra note 2, at 210-29.

Fall 2023] Critical Clinical Frames 129

with police and exposure to police violence in the media have on their

physical and mental health.

For instance, Black youth who have

been stopped by the police report heightened stress, anxiety, anger,

fear, a lack of safety, depression, insomnia, sweating, difficulty breath-

ing, nausea, shame, and other symptoms of physical and psychological

distress.

In all, the chronic toxic stress that Black youth experience

from invasive, aggressive, and sometimes violent policing can reduce

their life expectancy and puts them at greater risk for a host of nega-

tive health outcomes as adults.

Moreover, Black youth do not need

to experience discriminatory policing or police violence directly to be

impacted and harmed by it.

Additionally, over-policing does not just

impact the health and mental health of Black youth, but also shapes

their behavior. Black youth come to fear law enforcement and seek to

avoid them at all costs.

Black youth have no choice but to learn vari-

ous strategies for avoiding or surviving an encounter with police

–

strategies which are often ineffective or counterproductive because

“Black teenagers always ‘look’ guilty no matter what they do. And

they know it.”

This frame of race helps students better understand how the

world too often negatively perceives Black children and how Black

children too often negatively experience the world. This understand-

See Henning, T

AGE OF

NNOCENCE

, supra note 2, at 210-17, 226-29.

Dylan B. Jackson et al., Police Stops and Sleep Behaviors Among At-Risk Youth, J.

Nat. Sleep Foundation (2020); Juan Del Toro et al., The Criminogenic and Psychological

Effects of Police Stops on Adolescent Black and Latino Boys, 116 PNAS, 8261 (2019); Dy-

lan B. Jackson et al., Police Stops Among At-Risk Youth: Repercussions for Mental Health,

65 J. A

DOLESCENT

EALTH

627 (2019); Thema Bryant-Davis et al., The Trauma Lens of

Police Violence against Racial and Ethnic Minorities, 73(4) J. Soc. Iss. 852-871 (2017); Abi-

gail A. Sewell et al., Living Under Surveillance: Gender, Psychological Distress, and Stop-

Question-and-Frisk Policing in New York City, 159 Soc. Sci. Med. 1-13 (2016); Abigail A.

Sewell & Kevin Jefferson, Collateral Damage: The Health Effects of Invasive Police En-

counters in New York City, 93 J. Urb. Health 42-67 (2016); Amanda Geller et al., Aggres-

sive Policing and the Mental Health of Young Urban Men, 104(12) Am. J. Pub. Health

2321–2327 (2014).

Devin English, Sharon F. Lambert, Brendesha M Tynes, Lisa Bowleg, Maria Cecilia

Zea & Lionel C. Howard. Daily Multidimensional Racial Discrimination Among Black

U.S. American Adolescents, 66 J. A

PPLIED

EVELOPMENTAL

SYCH

. 1, 16 (2020); Sirry

Alang, Donna McApline, Ellen McCreedy & Rachel Hardeman, Police Brutality and

Black Health: Setting the Agenda for Public Health Scholars, 107 A

. J. P

. H

EALTH

662-

665 (2017).

Id. at 15; Brendesha M. Tynes, Henry A. Willis, Ashley M. Stewart & Matthew W.

Hamilton, Race-Related Traumatic Events Online and Mental Health Among Adolescents

of Color, 65 J. A

DOLESCENT

EALTH

371, 371-73 (2019).

Henning, The Reasonable Black Child, supra note 69, at 1554-55; Henning, T

AGE OF

NNOCENCE

, supra note 2, at 211, 215.

Henning, T

AGE OF

NNOCENCE

, supra note 2, at 211.

Henning, T

AGE OF

NNOCENCE

, supra note 2, at 163-66 (discussing stereotype

threat), 215.

130 CLINICAL LAW REVIEW [Vol. 30:113

ing is critical in our student attorneys’ pursuit of their clients’ goals.

Let’s look at Kayla’s case again. If Kayla was a white student in a

predominantly white school, would she have been arrested? Not

likely. Delinquency generally, as we discussed above, is a normative

feature of adolescence. But it is not just the behavior that matters, but

the state’s discovery of and response to youth behavior that makes

something fall under the jurisdiction of the delinquency court.

And,

in the case of Kayla, it is likely that implicit bias shaped that response

in a number of ways. For instance, the school resource officer deter-

mined that Kayla’s conduct was a criminal offense – not merely typi-

cal adolescent behavior or a violation of the school’s code of conduct.

The officer justified his decision to arrest Kayla by claiming that he

had “no choice” but to arrest her given her past outbursts and dis-

agreements with DeAngelo.

Both the officer’s perception of her be-

havior and his perceived lack of options short of arrest reflected many

facets of the officer’s and the system’s implicit bias against Black

youth, including perceiving Kayla as more culpable, more threatening,

and less deserving of support.

And while pointing out the bias would

not change the fact that she was arrested, naming the bias and getting

system stakeholders to understand how bias influenced the case may

help get the case dismissed or resolved in a creative manner short of

adjudication.

In addition to better understanding why the officer to responded

to Kayla in the manner in which he did, the frame of race is also key

to understanding why Kayla’s response of running from the school

resource officer and “resisting” arrest was objectively reasonable and

did not reflect a consciousness of guilt or desire to evade conse-

quences.

Indeed, Kayla’s response to the school resources officer

grabbing her arm was that of a “reasonable Black child” who unfortu-

nately is quite conditioned to be afraid of the police and to avoid in-

teraction with them at all costs.

The reasonableness of Kayla’s

response coupled with the officer’s lack of reason to believe that

See Eduardo R. Ferrer, Razing and Rebuilding Delinquency Courts: De/Reconstruct-

ing Delinquency (work in progress) (manuscript on file with the author) (discussing the

legal construct of delinquency as based not only on the definition of the behavior, but also

the detection of the behavior and the discretion to respond to the behavior using the appa-

ratus of the juvenile legal system).

ENNING

, T

AGE OF

NNOCENCE

, supra note 2, at 122-23.

Id. at 122-46.

See id. at 122-23 (in the case upon which Kayla’s is based, the government eventually

agreed to dismiss the case).

See Henning, The Reasonable Black Child, supra note 69, at 1554-55 (“A black

youth’s flight from the police is just as likely to reflect a personal desire to avoid contact

with a corrupt system as it is to be consciousness of guilt.”).

See id.

Fall 2023] Critical Clinical Frames 131

Kayla was a threat to others or to flee school grounds and knowledge

that he could easily find Kayla at a later point supports a finding that

the tackling of Kayla constituted excessive force. As such, when view-

ing this case through the frame of race, we shift the narrative from the

purported reasonableness of the officer’s behavior to the reasonable-

ness of Kayla’s behavior.

3. Trauma

The scientific and social science research regarding the impact of

childhood chronic toxic stress on development provides the founda-

tion upon which we constructed our pedagogical frame of trauma and

resilience.

Specifically, there are three key interrelated concepts

from the research that comprise the schema for the frame: 1) the high

prevalence of childhood chronic toxic stress among youth in the delin-

quency system; 2) the impact of chronic toxic stress on childhood de-

velopment; and 3) the impact of chronic toxic stress on childhood

behavior.

Unfortunately, the experience of chronic toxic stress during child-

hood is the norm rather than the exception for youth who become

involved in the delinquency system.

Studies investigating the preva-

lence of trauma among justice system-involved youth have found that

over ninety percent of youth in the juvenile legal system report having

experienced at least one traumatic experience during their childhood

– a rate far higher than the average population.

For example, one

study of system-involved youth in Florida found that “juvenile offend-

ers [were] 13 times less likely to report zero ACES (2.8% compared to

36%) and four times more likely to report four or more ACEs (50%

compared to 13%) than [a] population of mostly college-educated

adults.”

Thus, given the high prevalence of complex trauma in the

population of system-involved youth, our clients cannot be fully un-

derstood without also understanding the potential impact of chronic

toxic stress on their development.

See generally Eduardo R. Ferrer, Transformation through Accommodation: Re-

forming Juvenile Justice By Recognizing and Responding to Trauma, 53 A

. C

RIM

. L. R

549 (2016) [hereinafter Transformation through Accommodation]. Toxic stress is defined as

the “strong and prolonged activation of the body’s stress management systems in the ab-

sence of the buffering protection of adult support.” H

ARVARD

NIV

., C

ON THE

EVEL-

OPING

HILD

, T

CIENCE OF

ARLY

HILDHOOD

EVELOPMENT

: C

LOSING THE

ETWEEN

HAT

NOW AND

HAT

10 (2007), http://developingchild.

harvard.edu/wp-content/uploads/2015/05/Science_Early_Childhood_Development.pdf

[hereinafter T

CIENCE OF

ARLY

HILDHOOD

EVELOPMENT

See Ferrer, Transformation through Accommodation, supra note 89, at 574-76.

See id.

See Michael T. Baglivio et al., The Prevalence of Adverse Childhood Experiences

(ACE) in the Lives of Juvenile Offenders, OJJDP J. J

. J

UST

. 2, 10 (2014).

132 CLINICAL LAW REVIEW [Vol. 30:113

Chronic toxic stress during childhood can be especially impactful

because it occurs during a period where development is particularly

sensitive to experience and environment.

As a result, it should come

as no surprise that toxic stress has significant negative effects on the

developing brain and body.

Research over the last fifteen years has

identified observable physiological damage to the developing brain as

a result of childhood toxic stress.

Examples of such damage include

decreased volume in regions of the brain responsible for executive

functioning, self-regulation, memory storage, memory retrieval, coor-

dination of motor skills, and the regulation of cortisol as well as over-

activity in the region of the brain that interprets and responds to social

cues.

Additionally, toxic stress can disrupt the healthy development

of the body’s stress response system.

Specifically, when a developing

child experiences persistent toxic stress, the youth’s body will re-

calibrate its stress response system to adapt to the distressing environ-

ment.

While wholly rational from an evolutionary standpoint, this

adaptation can lead to impulsive and non-prosocial behaviors that can

undermine a young person’s success in the long-term.

Indeed, the experience of chronic toxic stress during childhood

can further diminish the normative decision-making capacity of ado-

lescents. First, chronic toxic stress can cause youth to become

hypervigilant.

100

This state of perpetual fear means that a young per-

son perceives the world to be unsafe, and thus, becomes preoccupied

with scanning the environment for threats.

101

While this hypervigi-

lance is an adaptive response that promotes survival, hypervigilance

also impairs a youth’s already-diminished ability to delay gratification

and prioritize the long-term over the short-term.

102

Second, chronic

toxic stress during childhood may condition a youth to experience

hyperarousal.

103

Thus, in addition to being more sensitive to environ-

mental cues, children experiencing hyperarousal are less adept at ap-

propriately interpreting and responding to those cues.

104

As a result,

See Ferrer, Transformation through Accommodation, supra note 89, at 569.

See T

CIENCE OF

ARLY

HILDHOOD

EVELOPMENT

, supra note 89, at 2 (“Toxic

stress in early childhood is associated with persistent effects on the nervous system and

stress hormone systems that can damage developing brain architecture and lead to lifelong

problems in learning, behavior, and both physical and mental health.”).

See Ferrer, Transformation through Accommodation, supra note 89, at 569-70.

See id.

See id. at 570-71.

See id.

100

See id. at 571.

101

See id.

102

See id.

103

See id. at 571-72.

104

See id.

Fall 2023] Critical Clinical Frames 133

they may misinterpret a neutral or safe situation as threatening and

mis-respond accordingly.

105

Third, chronic toxic stress during child-

hood can also hinder the development of executive function, nega-

tively impacting “learning, social interaction, self-regulation, and

impulse control.”

106

Given that executive functioning does not typi-

cally fully develop until an individual’s mid-20’s, youth who have ex-

perienced childhood trauma may struggle even more than the average

adolescent to control their impulses and emotions.

107

Like the frame of adolescence, the frame of trauma is often used

in advocacy regarding mitigation and court intervention. Fundamen-

tally, trauma-responsive care itself is grounded in a shift in framing,

from asking the question “what is wrong with the youth?” to asking

“what has happened to the youth?”

108

This shift in frame helps with

mitigation because it helps break down the victim/offender dichotomy

and locates the root cause of the young person’s behavior in the

trauma they have experienced rather than their character. This shift in

frame also provides a roadmap for effective intervention. Specifically,

given the experience of trauma, effective intervention must prioritize

healing and building resilience and avoid doing further harm.

109

Again, it is critical to understand how the frame of trauma can

also apply to reframing all aspects of the case. For instance, while the

frame of adolescence focuses on normative adolescence and thus

youth as a class, the frame of trauma focuses on the likely or actual

impact of chronic stress on the individual client. Thus, while the frame

of adolescence can be used to reframe objective standards like the

reasonable person to reflect youthfulness, the frame of trauma can

provide a more robust understanding of the individual client’s subjec-

tive perspective when evaluating culpability. For instance, applying

the frame of trauma to Kayla’s case helps the factfinder better under-

stand why Kayla reasonably ran from the officer in the first instance

and resisted arrest once she was tackled. Prior to the described inci-

dent with the school resource officer, Kayla had experienced signifi-

cant trauma during her childhood. Her father passed away when she

was still very young, and she grew up with a mother who experienced

depression, abused illegal substances, and allegedly physically abused

Kayla.

110

Given these adverse childhood experiences, Kayla is more

likely to experience both hypervigilance and hyperarousal, and her in-

105

See id.

106

See id. at 572-73.

107

See id.

108

See id. at 588-89.

109

See id. at 590-92.

110

While not a diagnostic tool, depending on the frequency of abuse, Kayla would score

at least a 4 on the Adverse Childhood Experiences Scale. See id. at Appendix 1.

134 CLINICAL LAW REVIEW [Vol. 30:113

dividual behavior must be interpreted through this lens. As such,

when the school resource officer grabbed her arm unexpectedly, his

actions triggered Kayla’s more sensitive fight-or-flight response, rea-

sonably causing her to fear and flee him. Similarly, when the school

resource officer tackled Kayla, she was reasonably put in fear of immi-

nent danger of bodily harm and did what she could to prevent the

school resource officer from harming her. Thus, both her flight and

her fight were reasonable autonomic responses, demonstrating both

that she lacked the criminal intent to resist and was legally justified in

doing so.

Additionally, the frame of trauma can help stakeholders better

understand and respond to the non-criminal behavior of youth who

are before the court. For instance, given Kayla’s alleged outbursts at

and abscondences from her foster placements, Kayla is likely per-

ceived as noncompliant at best and outright defiant at worst by her

social worker (and perhaps other system stakeholders). However, the

research teaches us that healing from trauma requires the feelings of

safety and control.

111

As a result, when a trauma-responsive lens is

applied to Kayla’s case, her behavior is better understood as commu-

nicating that she did not feel safe in her placements, needed some-

thing she could control, or both. This shift in frame from viewing her

behavior as a reflection of character to a form of communication is

critical to responding effectively to the behavior. The juvenile legal

system is quick to respond to perceived noncompliance or defiance

using coercive interventions like outplacement, electronic monitoring,

curfews, and other liberty restrictions – interventions that are likely to

make a youth like Kayla feel even less safe or in control.

112

Instead, a

trauma-responsive intervention would seek to both empower Kayla

and help her address the root and immediate causes of why she feels

unsafe.

Finally, it is critical to emphasize that, while Kayla’s trauma his-

tory helps to better understand her, it does not define her or predict

her future. Indeed, highlighting Kayla’s strengths, including her resili-

ence, is necessary to construct a robust, complete narrative. Here, we

might point out that, despite the trauma she has endured, Kayla is

very engaged in school. She attends regularly, gets good grades, and is

actively involved in extracurricular activities. Moreover, at seventeen,

111

Alicia Summers, PhD, Why Trauma-Informed Courts Are Important, J

UVENILE

US-

TICE

NFORMATION

XCHANGE

(Oct. 3, 2016), https://jjie.org/2016/10/03/why-trauma-in-

formed-courts-are-important/ (describing three common conditions for healing and

resilience: 1) safety; 2) self-determination; and 3) positive social connection).

112

See Ferrer, Transformation through Accommodation, supra note 90, at 590-92; see

also Lipsey, supra note 62, at 23-25; Mendel, supra note 62.

Fall 2023] Critical Clinical Frames 135

this is the first time she has been arrested. With additional interviews,

we could further develop the details of Kayla’s resilience – how she

has cared for her mother through her depression and substance abuse,

the effort she makes to keep her grades up, her commitment to dance,

and the strong community she has around her. Thus, the frame of

trauma provides a tool for contextualizing and understanding Kayla’s

alleged misbehavior while also highlighting the strength of her charac-

ter and resolve.

4. Sexual Orientation, Gender Identity, and Gender Expression

Social science research and the lived experiences of our clients

also provide the foundation upon which we constructed our pedagogi-

cal frame of sexual orientation, gender identity, and gender expression

(SOGIE).

113

The construction of the schema of SOGIE begins with a

clear understanding of the distinct aspects of human gender and sex-

ual identity and then explores the individual and systemic biases and

drivers that impact cis-girls, LGBTQ+ youth, and cis-boys. This frame

helps us reemphasize the importance of combating bias and individu-

alizing our representation of system-involved youth.

First and foremost, the schema is grounded in the recognition and

affirmation of the various dimensions of identity as it relates to gender

– assigned sex, gender identity, gender expression, and sexual orienta-

tion.

114

It also recognizes that each dimension of identity is a spec-

trum, not a simple binary.

115

For instance, assigned sex is the sex

designated at birth, typically based on the child’s visible genitalia.

116

While typically designated as either male or female, some intersex in-

dividuals are born with either sex chromosomes or reproductive sys-

tems that do not fall into the male/female binary.

117

Gender identity is

an individual’s internal identification along the spectrum of male/fe-

male identity.

118

While most individuals’ identities align with their as-

signed sex (i.e., cisgender), the gender identity of transgender

113

See generally Y

ASMIN

AFA

, E

DUARDO

ERRER

, M

AHEEN

ALEEM

, C

HERICE

OP-

KINS

& E

MILY

ELDHAKE

, R

IGHTS

IRLS

THE

EORGETOWN

UVENILE

USTICE

NITIA-

TIVE

, B

EYOND THE

ALLS

: A L

OOK AT

IRLS IN

DC’

UVENILE

USTICE

YSTEM

(2018),

https://rights4girls.org/wp/wp-content/uploads/r4g/2018/03/BeyondTheWalls-Final.pdf

[hereinafter Beyond the Walls]; Shannan Wilber, Lesbian, Gay, Bisexual, and Transgender

Youth in the Juvenile Justice System (Annie E. Casey Foundation, 2015), https://

www.nclrights.org/wp-content/uploads/2015/09/AECF_LGBTinJJS_FINAL2.pdf; Nancy E.

Dowd, Boys, Masculinities and Juvenile Justice, 8 J. K

OREAN

L. 115 (2008).

114

Wilber, supra note 113, at 6-7.

115

Id.

116

Id.

117

Id.

118

Id.

136 CLINICAL LAW REVIEW [Vol. 30:113

individuals is distinct from their assigned sex.

119

Gender expression is

the manner in which an individual chooses to present their gender to

others, typically through the use of clothing, hairstyle, or manner-

isms.

120

Gender nonconforming individuals present their gender in a

manner that differs from the manner in which their assigned gender

would present pursuant to cultural norms.

121

Sexual orientation re-

flects the gender to which an individual is attracted emotionally, sexu-

ally, or romantically.

122

Sexual orientation falls on a spectrum, with

individuals being attracted to men or women or identifying as bisex-

ual, pansexual, or asexual.

123

Understanding these various dimensions of gender and sexuality

is critical to understanding and framing the unique “drivers, exper-

iences, and needs” facing cis-girls and LGBTQ+ youth in the delin-

quency system,

124

especially given that the system has developed over

time into one that primarily focuses its attention on the behavior of

cis-boys.

125

For instance, the primary drivers of system-involvement

vary significantly by gender. Specifically, since the founding of the ju-

venile court, “the offenses that have led to girls’ justice-involvement

have been inextricably linked to girls’ engagement in behaviors that

violated social norms about gender, race, and femininity.”

126

While

boys more often come to the attention of the juvenile court as a result

of behavior that allegedly poses a threat to public safety, girls more

often are swept into the delinquency system to “protect” them from

promiscuity, victimization, or unlady-like behavior.

127

Similarly,

though perhaps for less paternalistic reasons, LGBTQ+ youth are

often driven into the system – directly and indirectly – as a result of

their non-conformance to traditional societal and cultural norms

around gender and sexual orientation.

128

Indeed, cis-girls and LGBTQ

119

Id. In addition to identifying as male or female, transgender individuals may also

identify as bi-gendered, two-spirit, or third gender. Id.

120

Id. An individual can choose to present themselves as masculine, feminine, or an-

drogynous. Id.

121

Id.

122

Id.

123

Id.

124

See Vafa, supra note 113, at 2; Wilber, supra note 113, at 14-35.

125

See Dowd, supra note 113, at 117 (“My hypothesis is that the juvenile justice system

is one that we have constructed as a gender-specific system to manage, control and respond

to boys. It reflects and operates upon assumptions about masculinities, and reflects mascu-

line norms.”); 124 (“The juvenile justice system should be understood as a system that

focuses on and deals with the behavior of boys.”).

126

Vafa, supra note 113, at 2.

127

Id.

128

Id. at 6-9; Bianca D. M. Wilson, Sid P. Jordan, Ilan H. Meyer, Andrew Flores, Lara

Stemple, & Jody Herman, Disproportionality and Disparities among Sexual Minority Youth

in Custody, 46 J. Y

OUTH

ADOL

. 1547, at 1548-50 (2017), https://pubmed.ncbi.nlm.

Fall 2023] Critical Clinical Frames 137

youth often experience similar pathways into system involvement –

pathways associated with or resulting from higher levels of complex

trauma, particularly sexual victimization; unmet behavioral health

needs; housing instability; school pushout; and child welfare system

involvement.

129

The impact of such pathways is that cis-girls and

LGBTQ+ youth – both of whom are sexual minorities in the delin-

quency system – are disproportionately criminalized and detained for

status offenses;

130

experience longer length of stays in detention;

131

and endure higher rates of victimization inside detention facilities, in-

equitable treatment, re-traumatization, and neglect of medical and be-

havioral health needs.

132

In sum, the research emphasizes the manner

in which the non-conformity and victimization of cis-girls and

LGBTQ+ youth is criminalized, making students more attuned to the

unique needs and obstacles cis-girls and LGBTQ+ youth face and

equipping students with a roadmap for issue-spotting and challenging

the biases at the root of such criminalization.

Importantly, while cis-boys make up the sexual/gender majority

in the delinquency system, system-involved cis-boys also face chal-

lenges – albeit different ones – associated with gender conformity, es-

pecially as it relates to the social construct of masculinity.

133

nih.gov/28093665/.

129

Vafa, supra note 113, at 6-9; Wilson, et al., Disproportionality and Disparities among

Sexual Minority Youth in Custody, supra note 128.

130

Wilson, et al., Disproportionality and Disparities among Sexual Minority Youth in

Custody, supra note 128, at 4 (2017) (“Girls (11%) were far more likely to be in custody

for status offenses (e.g., running away, truancy) when compared to boys (4%), as well as

for technical violations (24% vs. 16%).”), 6 (“Studies with juvenile justice practitioners

document widespread misperceptions and negative attitudes toward sexual minority youth

that produce and enable inequitable treatment, neglect of health and medical issues, exces-

sive use of force, sexual and physical victimization, and unwillingness to offer protection”);

Angela Irvine, “We’ve had three of them”: Addressing the invisibility of lesbian, gay, bisex-

ual, and trans-gender youth in the juvenile justice system, 19 C

OLUM

. J.

ENDER

& L.

675 (2010) (finding the LGBT youth are twice as likely as other youth to be detained for a

status offense); B

EYOND THE

ALLS

, supra note 113, at 7-8.

131

Wilson, et al, Disproportionality and Disparities among Sexual Minority Youth in

Custody, supra note 128, at 11 (“Sexual minority youth were disproportionately repre-

sented in juvenile detention, more likely to have been in custody for more than a year, and

were more likely to report being sexually assaulted by other youth compared to straight

youth.”); B

EYOND THE

ALLS

, supra note 113, at 10-11.

132

Wilson, et al, Disproportionality and Disparities among Sexual Minority Youth in

Custody, supra note 128, at 6-7 (“Studies with juvenile justice practitioners document

widespread misperceptions and negative attitudes toward sexual minority youth that pro-

duce and enable inequitable treatment, neglect of health and medical issues, excessive use

of force, sexual and physical victimization, and unwillingness to offer protection”) (cita-

tions omitted); B

EYOND THE

ALLS

, supra note 113, at 10-11; see also Wilber, supra note

113, at 12-13.

133

See Dowd, supra note 113, at 131.

The juvenile justice system is a good example of these patterns. We have generally

not focused on gender at all, rendering gender invisible. When we do focus on gen-

138 CLINICAL LAW REVIEW [Vol. 30:113

Professor Nancy Dowd observes:

The punishment or rehabilitation of boys, moreover, is not with the

goal of making them better or different men with a different sense

of masculinity. Rather, the system reinforces traditional notions of

masculinity rather than challenging them, at the very time when

those traditional notions are the focus of adolescent masculinities

and contribute to the actions of boys.

134

Specifically, the juvenile legal system reinforces “traditional notions of

masculinity”

135

by asserting its dominance over the boy-child,

136

mod-

eling violence,

137

and dismissing or punishing non-conformance to the

masculine ideal.

138

First, as “[boys] mature, they are taught to sup-

press emotion and empathy” and project strength.

139

However, in our

experience, system-involved boys are often perceived as defiant or ob-

stinate when they do not share openly with a judge, probation officer,

or therapist. Additionally, when boys do express themselves, they

tend to externalize their feelings.

140

For example, a boy’s expression of

der, we focus on girls and exclude boys, because we think we can only focus on one

rather than both. It is a system that presumptively is about boys, but we do not talk

about gender or masculinity. The examination of the system as gendered on behalf of

girls has not led to an examination on behalf of boys.

Id.

134

Dowd, supra note 113, at 133.

135

See Dowd, supra note 113, at 128 (“The two most common defining statements of

masculinity are imperative commands: do not be like a woman and do not be gay. Thus,

masculinity has negativity at its core, not an affirmative sense of identity.”).

136

See id. (“Men, although power-ful, feel power-less. The hierarchical relationship

among masculinities explains this, as well as the demand of masculinity that it constantly

be proved. Masculinity is “the Big Impossible,” that which is never assured or completely

achieved, but always to be demonstrated.”).

137

See M

ENDEL

, supra note 62, at 16-19 (finding that “a comprehensive national review

in 2015 revealed that systemic or recurring maltreatment or abuse had been clearly docu-

mented in the state-funded youth correctional facilities of 29 states and the District of

Columbia since 2000, and in 43 states and the District of Columbia and Puerto Rico since

1970”) (citing Richard Mendel, M

ALTREATMENT OF

OUTH IN

US J

UVENILE

ORREC-

TIONS

ACILITIES

(Annie E. Casey Foundation, (2015)); see also Dowd, supra note 113, at

130 (“Finally, violence is a core attribute of masculinity, for both men and boys, and in the

adolescent period the most traditional concept of masculinity, including violence, is

strongly reinforced.”).

138

At a systemic level, this often manifests through the reinforcement of patriarchal

hierarchies. See supra notes 124-132 and accompany text (discussing the increased victimi-

zation and disparate treatment of cis-girls and LGBTQ+ youth by the delinquency system);

Dowd, supra note 113 at 115 (“Boys of color are particularly dangerous, as are gay boys

and lower class boys. So the hierarchy of masculinities is evident in those who come into

the system and how they are treated.”).

139

Dowd, supra note 113, at 129.

140

See Tara M. Chaplin & Amelia Aldao, Gender Difference in Emotion Expression in

Children: A Meta-Analytic Review, 139 P

SYCH

. B

ULLETIN

735, 754 (2013) (finding “evi-

dence for significant but very small gender-role-consistent gender differences overall, with

. . . boys expressing more externalizing emotions such as anger than girls”).

Fall 2023] Critical Clinical Frames 139

depression may manifest itself as physical aggression.

141

Unfortu-

nately, the system often interprets such a visible expression of emo-

tion as evidence that the boy is a threat rather than understanding that

the aggression is a symptom of the invisible, unexpressed grief. Thus,

unless a boy expresses himself exactly in the way expected by the

court, he is punished.

142

And too often, the boy is punished with vio-

lence – increased surveillance, handcuffs, shackles, physical force,

prison bars, or solitary confinement.

143

Moreover, when a boy’s

trauma is raised as context to explain the behavior, his lived experi-

ence is often only cursorily considered or dismissed altogether. As a

shelter house worker once expressed after being informed of a 14-

year-old client’s history of trauma: “The boy just needs to just suck it

up and be a man.” Thus, understanding the role that masculinity plays

in shaping the juvenile legal system’s interpretation of and response to

the behavior of our male clients prepares students to reframe such

interpretations and responses and push back against the perpetuation

of toxic masculinity and patriarchal hierarchies.

Let’s examine Kayla’s case again now through the frame of

SOGIE. If Kayla and DeAngelo’s roles were reversed, would the

school resource officer have intervened? Would the prosecutor have

charged DeAngelo in the case? Given the roles that masculinity and

paternalism play in shaping the system’s response to adolescent be-

havior, the response might have been very different. First, given “the

dominance of men in the gender order,”

144

it is possible that the

school resource officer would not even perceive DeAngelo’s behavior

to be troubling, let alone criminal.

145

Rather the school resource of-

141

See Christine Blain-Arcaro & Tracy Vaillancourt, Longitudinal Associations between

Depression and Aggression in Children and Adolescents, 45 J. A

BNORM

. C

HILD

SYCHOL

959, 967 (2017) (finding “a positive and significant association between physical and rela-

tional aggression, and between both forms of aggression and depression symptoms” and

“that boys engage in physical aggression more than girls”) (citations omitted); see also

A.M. M ¨oller Leimk ¨uhler & J. Heller, N.-C. Paulus, Subjective Well-being and ‘Male De-

pression’ in Male Adolescents, 98 J. A

FFECTIVE

ISORDERS

65, 66 (2007) (discussing re-

search finding that “‘male’ symptoms like irritability, aggressiveness and antisocial

behavior were more strongly intercorrelated in depressed males than in depressed

females.”).

142

Dowd, supra note 113, at 114-15 (“The harsh punishment characteristic of the cur-

rent system reflects the view of boys as dangerous and inherently violent.”).

143

See M

ENDEL

, supra note 62, at 16-19 (discussing the high rates of maltreatment and

abuse that youth experience in juvenile facilities); see also Dowd, supra note 113, at 115

(“Moreover, the justification of harsh punishment as necessary in order to control boys

silently sanctions the worst offenses within confinement, most notably prison rape, leaving

them unchallenged and permitted as part of punishment.”).

144

See Dowd, supra note 113, at 115.

145

See Yael Cannon & Nicole Tuchinda, Critical Perspectives to Advance Educational

Equity and Health Justice, 50 J. L. M

. & E

THICS

776, 781 (2022) (“Intersectionality, a

tenet of CRT and DisCrit, helps to explain why Black girls experience higher levels of

140 CLINICAL LAW REVIEW [Vol. 30:113

ficer may have perceived DeAngelo’s behavior as justified given the

allegations of cheating. Second, because the situation did not pose any

threat to public safety, it is quite possible that the school resource of-

ficer would not view DeAngelo’s behavior as requiring system in-

volvement as a means to protect others. In contrast, while Kayla also

did not pose a threat to public safety, given her gender, it is more

likely that the school resource officer and prosecutor perceived system

involvement as not only necessary to protect her from herself but a

vehicle to ensure behavior change. Thus, applying the frame of

SOGIE helps students understand that the decision to arrest and

charge Kayla represents not only the criminalization of adolescence

but also the criminalization of gender.

5. Intersectionality & Overlapping Pedagogical Frames

In addition to adolescence, race, trauma, and SOGIE, we also

emphasize the intersectionality of these schema and its centrality to

the individualization of representation.

146

In other words, as Goffman

pointed out, the most complete or precise narrative often requires the

application of multiple overlapping frames.

147

For example, in Kayla’s

case, it is not just that she is an adolescent, or that she is Black, or that

she is a cis-girl who has experienced trauma. Kayla’s experience is

best understood at the intersection of these identities and experiences

– through the overlapping frames of being a Black teenaged cis-girl

with a history of trauma.

Social science research and lived experience of our clients again

help guide our construction and concretization of intersectionality.

While racial hierarchies impact all Black youth and gender hierarchies

impact all girls, research highlights the particular impact of the combi-

nation of racial and gender bias on Black girls specifically.

148

For in-

stance, mirroring similar research by Dr. Goff regarding Black boys,

the Georgetown Law Center on Poverty and Inequality found that,

compared to white girls of the same age, adults perceive that: Black

girls need less nurturing, protection, support, and comfort; that Black

arrest and restraint than both White children and Black boys. . ..”) (citing Thalia Gonz ´alez

et al., A Health Justice Response to School Discipline and Policing, 71 A

. U. L. R

. 1927,

1942 (2022) (finding that Black girls with disabilities have the higher rates of school exclu-

sion and referral to law enforcement of any student population)).

146

Katy Steinmetz, She Coined the Term ‘Intersectionality’ Over 30 years Ago. Here’s

What It Means to Her Today, T

IME

(Feb. 20, 2020), https://time.com/5786710/kimberle-

crenshaw-intersectionality/ (defining intersectionality as “a lens, a prism, for seeing the

way in which various forms of inequality often operate together and exacerbate each

other.”).

147

See Goffman, supra note 6, at 25-26.

148

See generally Epstein, supra note 72 (finding that “adults view Black girls as less

innocent and more adult-like than their white peers, especially in the age range of 5-14”).

Fall 2023] Critical Clinical Frames 141

girls are more independent; and that Black girls are more knowledge-

able about adult topics, including sex.

149

Combining these findings

with the disproportionate rates of school exclusion and referral to the

justice system that Black girls experience, the authors hypothesize

that the adultification of Black girls results in greater use of force and

harsher punishment in both school and juvenile legal system

settings.

150

Given this research, layering together the frames of adolescence,

race, trauma, and SOGIE strengthens the argument for dismissal of

Kayla’s case. Kayla’s behaviors merely reflected those of typical teen-

age angst and impulsivity, not criminal behavior. However, because of

her race and gender, the school resource officer failed to see her as a

child and instead criminalized her behavior. As a result, the arrest and

subsequent prosecution are grounded in bias and will do little to fur-

ther public safety. Additionally, given the trauma she has already ex-

perienced and the fact that she is less likely to be seen as in need of

protection and support, it is likely that the system will cause further

harm to Kayla. Therefore, when combined, the frames together make

a compelling case for dismissal.

Importantly, pedagogical frames are not necessarily to be used to

tell the entire, most-nuanced narrative of a client in every case, but

rather to construct the narrative most likely to advance the client’s

expressed interests. In other words, students should not be combining

all four frames in every case. Rather, in each case, students should

strategically consider how each frame in isolation might advance a cli-

ent’s identified goals while also considering the frames in combination

and collectively. As a result, while our four pedagogical frames pro-

vide a common framework for examining cases, the flexibility and in-

tentionality with respect to how frames are used promotes the

individualization of representation in every case.

C. Our Rationale for these Particular Pedagogical Frames for a

Youth Defense Clinic

Why did we choose these particular four frames for our youth

defense clinic? Three main reasons: prevalence, power, and principle.

First, the age, race, trauma history, and SOGIE of our clients in-

dividually and collectively influence every single one of our cases in

our clinic. While the degree of influence varies from case to case, we

have consistently seen these frames impact our cases and clients in

two primary ways. First, even when stakeholders explicitly acknowl-

149

See id. at 1, 7-8.

150

See id. at 1, 9-12.

142 CLINICAL LAW REVIEW [Vol. 30:113

edge these frames, they often minimize and reduce them to one of

many ancillary factors to consider at the mitigation stage of the pro-

ceedings of the case. In other words, facts like age and trauma history

are seen merely as information to be considered for determining juris-

diction or the disposition of the case, not for determining or under-

standing issues like culpability or compliance. Second, when

stakeholders unconsciously rely on these frames, the frames often lead

to or reinforce implicit bias. For example, implicit racial bias often

results in our Black clients – both boys and girls – being perceived as

older, more dangerous, more culpable, and less deserving of support.

Additionally, fundamental attribution bias often results in our youth

clients’ delinquent behavior being perceived as indicative of their

character rather than a normative feature of the transitory stage of

adolescence that they will outgrow. Thus, given the prevalence with

which we encounter these four frames in our cases and the manner in

which they can negatively impact our clients if not identified and ad-

dressed, we have to consider these frames in every case in our work.

Second, while we discuss above the manner in which these frames

can negatively impact our case, given the research regarding adoles-

cence, race, trauma, and SOGIE, these four frames can be powerful

tools to advance our clients’ expressed interests when used strategi-

cally and intentionally by defense counsel. This is particularly true

when we as defense counsel can recast adolescence, race, trauma his-

tory, and SOGIE not merely as one factor of many to be considered,

but as the frames through which all other factors should be consid-

ered. For example, adopting a trauma-responsive frame in a case shifts

the focus of the case from the youth’s behavior to what happened to

the youth prior to engaging in such behavior. This reframe helps

stakeholders better evaluate intent and reasonableness of conduct, ap-

propriateness of court intervention, disposition, and other critical de-

cisions in the case. Additionally, when used intentionally and

strategically, the frames of adolescence, race, and SOGIE can be used

to directly confront, combat, and reverse the various unconscious bi-

ases that too often negatively impact our clients.

Third, we chose these four frames because they not only provide

additional tools to improve our advocacy, but because they reflect our

values as professors and as a clinic – youth justice, racial justice, repar-

ative justice, and gender justice. First, kids should be treated as kids,

supported and instructed through mistakes, not scapegoated or

thrown away because of systemic forces they played no role in creat-

ing. Second, race matters. We must normalize conversations about the

manner in which historical and modern systemic racism drive children

of color into the juvenile legal system, and we must equip students to

Fall 2023] Critical Clinical Frames 143

engage intentionally in the work of undoing those systems of oppres-

sion.

151

Third, we must seek justice in ways that help individuals –

both perpetrator and victim – to meaningfully heal from the harm

they have experienced. This includes not just repairing harm at the

individual interpersonal level, but also acknowledging and repairing

the harm caused by biased and indifferent systems. And, finally, we

must strive to ensure that no one is punished or discriminated against

as a result of how they were born, who they love, or how they identify.

Thus, the four frames we selected provide not only a methodology for

equipping students with a transferable skill, but also a platform for

students to explore the type of lawyers and people they want to be

when they set out into the world to practice law.

II. T

EDAGOGY OF

RAMES

PPLIED

As Professor Johnson notes and describes in Integrating Critical

Theory and Clinical Education, there are a variety of ways that Criti-

cal Theory can be integrated into clinical pedagogy.

152

The Pedagogy

of Critical Clinical Frames defined above forms the foundation for our

approach for turning Critical Theory into Critical Praxis. Having de-

fined a pedagogical frame and explained how we have chosen and

constructed specific frames for the Juvenile Justice Clinic above, we

now turn to how we apply the pedagogy of frames in our clinic.

A. Course design

The Juvenile Justice Clinic encourages students to consider and

apply our four frames – 1) adolescence; 2) race; 3) trauma; and 4)

SOGIE – throughout every aspect of their client representation and

coursework. The intentional and explicit utilization of these critical

frames encourages students to deconstruct the law’s claim to neutral-

ity, to understand the manner in which carceral systems dispropor-

tionately negatively impact youth of color, and to construct

counternarratives that advance our clients’ expressed interests. Stu-

dents are also encouraged to explore how these frames apply to their

relationships with the client and system stakeholders, their lawyering

skills, and their own personal and professional identity formation.

Thus, given their pervasive nature,

153

our four pedagogical frames

151

Alfieri, supra note 44, at 18 (“New rebellious ways of speaking about civil rights and

poverty law require new visions of low-income communities of color burdened by stigma-

tizing identity narratives expressed in the form of ‘race talk.’”).

152

Johnson, Integrating Critical Theory and Clinical Education, supra note 5, at 172-84

(explaining the various ways that one could and that Professor Johnson has integrated

Critical Theory into her two clinics).

153

See supra notes 38-41 and accompanying text; see also Johnson, Integrating Critical

Theory and Clinical Education, supra note 5, at 174 (describing her decision “to teach

144 CLINICAL LAW REVIEW [Vol. 30:113

form a key pillar around which our course is designed.

154

The centrality of the pedagogical frames to our course design is

communicated to students explicitly in three ways through our sylla-

bus. First, the syllabus contains an introduction to the four frames

along with the course description and learning goals. Both the course

description and the learning goals mention the importance of strategi-

cally applying the four frames throughout all aspects of representing

their clients. Second, the syllabus explicitly names classes that will be

devoted to constructing the schema of a particular frame. This raises

the salience of the frames and communicates the goals for those par-

ticular classes to the students. Third, the syllabus communicates the

specific order in which we have chosen to explore each of the four

frames. As a result, as will be discussed in more detail below, the sylla-

bus itself guides students to make connections between the theory of

the frames and practical application of the frames.

B. Seminars & Readings

The four frames are woven into the fabric of the clinic through

three different types of seminar classes that reflect the “prepare, do,

reflect” essence of clinical education. First and foremost, there are

substantive seminar classes specifically devoted to constructing the va-

rious frames and preparing students to use them. These substantive

seminars begin during orientation with separate seminars devoted to

exploring difference and introducing the research relating to norma-

tive adolescent development and implicit racial basis. This introduc-

tion to the frames of adolescence and race take place prior to a

seminar class on case theory so that students can immediately engage

with how the frames can impact all aspects of litigation. Throughout

the year, we revisit the frames with additional seminar classes devoted

to each of these frames that are intentionally juxtaposed with semi-

nars covering “black letter” law. For instance, we pair a seminar cov-

ering Fifth Amendment doctrine with a seminar exploring the ways

the law should accommodate adolescence and explore the idea of an

objective “reasonable child” standard.

155

Additionally, we pair a semi-

nar covering Fourth Amendment doctrine with a seminar diving

deeper into implicit racial bias, policing as trauma, and an objective

“reasonable Black child” standard.

156

We also use a seminar on

trauma and resilience to highlight ways to use and litigate the subjec-

critical theory pervasively across the curriculum, as opposed to isolated classes”).

154

The learning goals for our clinic include 1) role assumption; 2) case planning; 3)

lawyering skills; and 4) reflection.

155

See supra notes 54-68 and accompanying text.

156

See supra notes 69-87 and accompanying text.

Fall 2023] Critical Clinical Frames 145

tive experiences of our clients to advance their expressed interests and

a seminar on SOGIE to reemphasize the role of defense counsel, indi-

vidualized representation, and the minimization of our own biases.

In preparation for these substantive seminars on frames, students

are assigned readings relating to the relevant frame. Readings include

law review articles, social science research, literature reviews, policy

reports, and annotated bibliographies that we have created for stu-

dents summarizing research studies on various topics.

157

Indeed, many

of the sources cited in Part I, supra, are the readings that we assign to

students as we help them explore and construct the various frames.

For instance, prior to orientation, students are assigned a chapter from

the National Research Council report on Reforming Juvenile Justice:

A Developmental Approach that succinctly explains key research re-

lated to the biological and social aspects of normative adolescent de-

velopment, including the impact of racial discrimination on

development.

158

Students are also assigned Race, Paternalism, and the

Right to Counsel

159

as well as The Reasonable Juvenile Standard in

JDB

160

in order to introduce how race and adolescence intersect with

our representation of youth.

The big picture goals of these substantive seminars on the frames

are three-fold. First, these substantive seminars provide students with

the information necessary to begin constructing the frames we en-

courage students to use in our clinic. The seminars and arc of the

course are designed and ordered such that the frames become more

layered and robust as students acquire more information and gain

first-hand experience representing clients. Second, the substantive

seminars provide an opportunity to explore how the frames can be

used as a tool for challenging the supposed neutrality of the law, sys-

tems, and stakeholders and for building strategic counternarratives.

As a result, the substantive seminars introduce not only the theory

behind the construction of the frame but also examples of how to

practically apply the frame in client representation. Third, these semi-

nars seed the ground for discussions of race and SOGIE as well as

normative and divergent development. Our hope is to establish a

clinic culture that normalizes discussions of these topics in our clinic as

well as the use of our frames as a tool to advance client’s interests.

In addition to substantive seminars, we also use simulation-based

157

Defenders can sign up to receive access to these annotated bibliographies as well as

additional resources related to the four frames at www.defendracialjustice.org.

158

See generally National Research Council, R

EFORMING

UVENILE

USTICE

: A D

EVEL-

OPMENTAL

PPROACH

(2013).

159

Kristin N. Henning, Race, Paternalism, and the Right to Counsel, supra note 70.

160

Levick & Tierney, supra note 68.

146 CLINICAL LAW REVIEW [Vol. 30:113

seminars to practice and reinforce using frames and frame analysis in

the context of client representation. Students are often assigned mock

exercises that they must complete for class. The exercises vary from

writing a disposition argument to drafting a cross examination to

drafting and delivering a suppression argument. The exercises are de-

signed to integrate the substantive law and trial skills students have

learned to that point while providing students with an opportunity to

incorporate the frames of adolescence and race, and their intersection

in the form of the reasonable Black child, into their argument. During

the second semester, students also argue an oral motion based on a

hypothetical designed to encourage students to practice incorporating

implicit bias, policing as trauma, and adolescent development into

their arguments.

Seminars incorporating traditional case rounds and other forms

of group-based reflection provide a third format for incorporating our

frames into our course and client work. Case rounds, in particular,

provide an effective, structured, class-wide format in which to explore

the assumptions and biases that may be at work in a live case.

161

As a

result, we have found case rounds to be a ripe opportunity to engage

collectively in frame analysis (i.e., what frames are being used by

whom and how in the case) and further explore the four frames spe-

cific to our clinic.

162

C. Supervision

Supervision provides another opportunity for students to engage

in frames analysis and practice the application of our pedagogical

frames in their advocacy. As students develop their case theory and

interact with other system stakeholders, students often engage in

frame analysis either subconsciously or consciously but incompletely.

In supervision, we then guide students to a more explicit, intentional,

and extensive analysis of the frames that others have adopted as well

as the potential frames and counternarratives that the student has

identified as useful to advancing their client’s expressed interests.

163

161

Susan Bryant & Elliot Milstein, Rounds: A “Signature Pedagogy” for Clinical Educa-

tion, 14 C

LIN

. L. R

. 195, n. 35 (“This kind of learning ultimately enables students to see

how culture and experience shape their world-views and influence lawyering choices. Good

clinical judgment requires a capacity to identify how one’s assumptions influence priorities

and define what ‘makes sense’ in the situation and to step away from those assumptions

and challenge them.”) (citations omitted); 214-15 (“[P]eer conversations often trigger re-

flection” which “involves surfacing tacit norms or assumptions that underlie a judgment

made to take a case in a particular direction.”).

162

See id. at 209 (“They begin to identify which contexts matter in problem definition

and how they shape solutions.”).

163

See Mlyniec, supra note 28, at 114 (“Clinical teachers are always ‘directing’ a student

in an exploration that leads to new knowledge or a solution to a problem.”).

Fall 2023] Critical Clinical Frames 147

This guidance can take a number of forms, from a more directive con-

versation with the student to a roleplay or moot paired with immedi-

ate reflection and debrief.

164

During supervision, we also engage in critical reflection,

165

un-

packing the various assumptions that students make, including, but

not limited to, assumptions about our clients and how the law is or

should be applied.

166

In examining these assumptions, we make clear

that defense attorneys are not immune to the same biases or deficits-

based thinking present in other stakeholders. Defenders may even be

more susceptible to unintentionally adopting, assuming, or reinforcing

the same negative frames applied by other system stakeholders.

167

a result, it is imperative that youth defenders engage in the work of

frames analysis and narrative reconstruction to ensure that we under-

stand, appreciate, and center our clients as well as zealously and effec-

tively advance their expressed interests.

168

Students are also asked to critically reflect during supervision

upon systemic issues they have encountered in their cases and relate

them back to the research and theory they have learned from the four

frames. For instance, using Kayla’s case as an example, we would en-

courage students to not only examine why the school resource officer

responded to Kayla the way that he did, but also why the school re-

source officer was present at Kayla’s school in the first place. We

might further discuss the proliferation of videos online in which police

officers are caught physically disciplining youth in schools and the fact

164

See id.

165

Grose & Johnson, supra note 27, at 204.

166

See id. at 206. Frame analysis and “parallel universes” thinking complement each

other well as tools for confronting our own assumptions and biases. See Susan Bryant, The

Five Habits: Building Cross-Cultural Competence in Lawyers, 8 C

LIN

. L. R

. 33, 70 – 71

(2001) (describing “‘parallel universes’ thinking” as “a method for exploring alternative

explanation for clients’ behaviors. . . [that] invites students to look for multiple interpreta-

tions, especially at times when the student is judging the client negatively.”).

167

See L. Song Richardson & Phillip Goff, Implicit Racial Bias in Public Defender

Triage, 122 Y

ALE

. L. J. 100, 105 (2013) (“There is ample reason for concern that [implicit

biases] will affect public defenders’ judgments because IBs thrive in situations where indi-

viduals make decisions quickly with imperfect information and when they are cognitively

depleted, anxious, or distracted); see generally M

AHZARIN

R.R. B

ANAJI

& A

NTHONY

REENWALD

, B

LIND

POT

: H

IDDEN

IASES OF

OOD

EOPLE

(2016) (discussing blind spot

bias).

168

Grose & Johnson, supra note 27, at 217 (“We need to make explicit to ourselves the

lenses we use to see the world, and how those lenses affect how we see our clients.”);

Johnson, Integrating Critical Theory and Clinical Education, supra note 5, at 163. Impor-

tantly, we as defense counsel must also be careful not to use frames to further pathologize

or contribute to flattening or stereotyping of experience. Rather counsel should use frames

to help us individualize all aspects of our representation, including, but not limited to, our

relationship with our clients, our advocacy on behalf of our clients, how we counsel our

clients, and the outcomes we pursue on their behalf.

148 CLINICAL LAW REVIEW [Vol. 30:113

that police brutality and state violence is not an abstract concept for

our clients, but a part of their everyday life. Thus, critical reflection in

supervision provides students with the opportunity to not only reflect

on how frames analysis applies in their individual case, but also how

frames analysis may impact the overall context in which their individ-

ual case is situated.

D. Client Representation

Finally, students utilize the four frames in their representation. In

doing so, students deconstruct and attempt to replace the numerous

false narratives spun about our clients.

169

Students do this by identify-

ing the dominant frames through which other stakeholders view our

clients and their cases and seeking to shift those frames in favor of

ones that advance our clients’ expressed interests. This process of

deconstruction and reconstruction is one that engages them directly in

the work of combating the system’s disproportionate impact on youth

of color in the District of Columbia. As a result, in the Juvenile Justice

Clinic, our students are not merely studying the law’s claim to neutral-

ity and the law’s differential effects on subordinated groups, but are

actively immersed on a daily basis in trying to deconstruct such claims

and stem the impact of the racial disparities and other injustices we

see present in our juvenile legal system.

Integrating our clinic’s pedagogical frames into their client repre-

sentation begins immediately upon picking up a client. Upon appoint-

ment, students will conduct an initial interview with the client. During

this interview, students will begin to learn about the client’s history,

life, and goals and begin to co-create with the client the narrative and

strategy for the case. In developing this narrative and strategy, stu-

dents are expected to consider not only our four pedagogical frames,

but also the frames that other stakeholders may be consciously or sub-

consciously applying to the case. Within hours of being appointed to a

new client, students also will have to make a release argument at the

client’s initial hearing. Students are expected to explore whether the

research relating to normative adolescent development, trauma, and

the harms of detention or the data relating to racial disparities in de-

tention in the District of Columbia are compelling arguments to

weave into their arguments before the court to counter the narratives

being told about our client. This often marks the first time in a case

169

Jay M. Feinman, The Failure of Legal Education and the Promise of Critical Legal

Studies, 6 C

ARDOZO

L. R

. 739, 758 (1985) (“The Critical example is a powerful element

of the Critical transformation. It provides, either imaginatively or actually, a concrete situ-

ation which demonstrates the falseness and oppressiveness of existing relations as well as

the Critical possibilities of transformation.”).

Fall 2023] Critical Clinical Frames 149

that students apply one or more frames in advocacy. After the initial

hearing, students must complete a case planning memorandum detail-

ing their theory of the case, theory of disposition, and strategic plan

for achieving client’s interests. Again, students are asked to intention-

ally consider how our four pedagogical frames will impact all aspects

of their client’s case. This memorandum – and the frames analysis in-

cluded therein – is an iterative document that should be updated and

adjusted as circumstances change or the student learns new informa-

tion throughout the course of the representation. This continual pro-

cess of deconstructing false or incomplete narratives and

reconstructing counternarratives that advance our client’s expressed

interests is the heart of transforming the theory of critical clinical

frames into practice.

ONCLUSION

Biases

170

and deficit-based approaches too often unduly shape

the narrative that system stakeholders create about the young people

we represent in the Juvenile Justice Clinic. Our client’s strengths – the

assistance they provide to their families; their sense of humor; their

artistic ability, academic achievement, or athletic prowess; or the ef-

fort they are making to improve in multiple domains of their life – are

too often marginalized, minimized, or erased. Moreover, our clients’

immaturity, race, gender, and life experiences are too often

weaponized against them. Unless intentional care is taken to shape a

more accurate narrative of our client’s lives, their intent, motivations,

and behavior are negatively interpreted through our own biases.

171

Pedagogical frames guide students in this work of counternarrative by

helping students better relate to, understand, co-create, and tell the

complex story of our clients in an effort to advance their expressed

interests in the face of a system that too often seeks to paint them as

one-dimensional. As such, the pedagogy of frames equips students

with a transferable skill that helps them be better advocates and

achieve a more just world.

170

Examples of other biases we encounter often include implicit racial bias, paternal-

ism, fundamental attribution error, and adultification bias.

171

Goffman, supra note 6, at 22 (“Motive and intent are involved, and their imputation

helps select which of the various social frameworks of understanding is to be applied.”)

REFLECTIONS ON THE LAUNCH OF A

RACIAL JUSTICE CLINIC AND THE

BRAVERY OF LIONS

ANEL

A. G

EORGE

This nation is at an inflection point in which the future of a viable,

multi-racial democracy stands in the balance. However, this occurrence

is not new—the nation has experienced moments of retrenchment

before, during which times of racial progress are quickly followed by

retrenchment in the form of legal efforts to rollback hard-won civil

rights. This Essay explores how clinical legal education is poised to pre-

pare law students to meet moments of retrenchment. Adopting the

framework of the “pedagogy of prefiguration,” this Essay asserts that

shaping clinical pedagogy to ensure that students engage in social anal-

ysis, exercise radical imagination, and foster dialogical relationships

with clients, can help to prepare them to advance racial justice even in

moments when retrenchment seems intractable. To fully equip clinic

students to engage in racial justice lawyering during such times of re-

trenchment, this Essay posits that another component be added to

prefigurative pedagogy—bravery. Drawing upon reflections from the

launch of a racial justice clinic, this Essay concludes that, to best meet

moments of retrenchment, clinicians must also prepare students to take

* Associate Professor of Law and founding director of the Racial Equity in Education

Law & Policy Clinic at Georgetown University Law Center. I would like to thank some of

the pioneering clinicians at Georgetown Law who have given me invaluable guidance and

support including Wallace Mylniec, Deborah Epstein, Robert Stumberg, and others. I

would also like to thank other clinical colleagues who have provided invaluable feedback

including Aderson Fran¸cios, Yael Cannon, Laura Moy, Amanda Levendowski, Dave Ra-

pallo, and Erica Hashimoto. I would like to thank Alicia Plerhoples for spearheading the

first Racial Justice Symposium at Georgetown Law. See Promoting Justice: Advancing Ra-

cial Equity Through Student Practice in Legal Clinics, G

. U

NIV

. L. C

. (Mar. 2023),

https://www.law.georgetown.edu/experiential-learning/clinics/racial-justice-symposium/.

This Essay originates from a presentation I delivered at the first Annual Mid-Atlantic

Clinical Conference held in February 2023 in Washington, DC, and remarks for the panel

entitled Racial Justice and the Pedagogy of Racially-Conscious Lawyering at Georgetown

Law’s Racial Justice Symposium. Thanks to participants in the Mid-Atlantic Clinical Writ-

ers Workshop, and to Professor Eloise Pasachoff for her invaluable feedback on an early

draft of this Essay. Thanks to Professor Karla McKanders and to Samantha Davis, Miya

Walker, Kristi Matthews, Jasmine Gripper, and Marina Marcou-O’Malley for their fearless

advocacy, inspiration, and examples of collaborative, transformative, and impactful policy

advocacy. Thanks to Mariah Briet for her invaluable research assistance. Finally, my grati-

tude goes to the Georgetown Law students who comprised the early cohorts of the REEL

Policy Clinic. Thank you for your commitment to justice, your constructive feedback, your

vulnerability, and your bravery. Wishing you each a daily dose of outrage at injustice.

151

152 CLINICAL LAW REVIEW [Vol. 30:151

risks, sacrifice privilege, and experience discomfort if they wish to en-

gage in the long, challenging, and brave work of transformative racial

justice lawyering.

NTRODUCTION

“[U]ntil lions have their own historians, the history of the hunt will al-

ways glorify the hunter.”

-African Proverb

In the spring of 2022, I launched the Racial Equity in Education

Law and Policy Clinic (hereinafter “REEL Policy Clinic”) at Ge-

orgetown University Law Center. The REEL Policy Clinic blends

principles of legislative lawyering,

critical race lawyering,

and move-

ment lawyering

to engage students in advancing racial equity in edu-

cation. Scholar Sameer Ashar’s conception of “prefigurative

pedagogy,”

which encourages imaginative thinking and innovation to

transform systems and promote social justice, as a fitting framework

for the amalgamation of pedagogical approaches that I employ in the

REEL Policy Clinic. I often tell my students that Black civil rights

activists who grew up in the Jim Crow regime of the south with segre-

gated schools and the stain of “separate but equal” had to imagine the

kind of world they were advocating to secure. Drawing from this prac-

tice of imagining,

Ashar defines “prefiguration,” which is inspired by

LaGarrett J. King, When Lions Write History, 22 Multicultural Education 2 (Fall

2014) (“The African proverb, ‘Until the lions have their historians, the tales of the hunt

shall always glorify the hunter,’ is used to metaphorically describe how dominant groups

inscribe power through historical narratives.”); see also Annalisa Quinn, Chinua Achebe

and the Bravery of Lions, NPR (Mar. 22, 2013), https://www.npr.org/sections/thetwo-way/

2013/03/22/175046327/chinua-achebe-and-the-bravery-of-lions (quoting Achebe’s recount-

ing of an Africa Proverb).

Chai Feldblum, the founding director of Georgetown Law’s Federal Legislation

Clinic, coined the term “legislative lawyer,” whom she described as “the ‘legal content

person’ and the ‘conduit’ between the political players and the substantive legal players on

any particular issue.” 34 M

EORGE

L. R

. 785, 797 (2003).

Vanita Gupta, Critical Race Lawyering in Tulia, Texas, 73 F

ORDHAM

L. R

. 2055,

2070 (noting that critical race lawyering is “a form of community-focused, racial justice-

oriented lawyering . . . which can actually go a long way toward fundamental and structural

reform of an otherwise broken and racist system that is devastating entire communities of

color.”).

This Essay relies upon scholar and Movement lawyer Betty Hung’s conception of

movement lawyering as “[l]awyering that supports and advances social movements, de-

fined as the building and exercise of collective power, led by the most directly impacted, to

achieve systemic institutional and cultural change.” Betty Hung, Movement Lawyering as

Rebellious Lawyering: Advocating with Humility, Love and Courage, 23 C

LIN

. L. R

. 663,

664 (2017).

See Sameer M. Ashar, Pedagogy of Prefiguration, 132 Y

ALE

L. J. 869 (2023).

As Ashar notes, “Before it was named as such, prefigurative thinking was embedded

in the anticolonial and civil-rights movements of the twentieth century.” Id. at 871 n.8

Fall 2023] Launch of a Racial Justice Clinic 153

utopian thinking,

as the “idea [that] we have to build our movement

cultures and our leftist institutions in the model of the world we are

seeking to create.”

This expands upon the concept of “prefigurative

legality” as conceived by Amy Cohen and Bronwen Morgan. Accord-

ing to Cohen and Bronwen’s concept of prefigurative legality, despite

the law’s potential to entrench inequality, advocates can recognize the

utility of the law to explore potential avenues to pursue social justice

and persist in the use of legal power, even in the face of uncertain

outcomes.

Consistent with this concept, Ashar outlines three features

of prefigurative pedagogy with which clinicians can experiment to ad-

vance utopian imagination to address the social problems that legal

clinics work to remedy: (1) social analysis; (2) radical imagination; and

(3) dialogical relationship with collaborators. Although I did not have

Ashar’s framework as a reference when I launched the REEL Policy

Clinic, I find that it provides a fitting description of the pedagogical

approach I employ in the clinic. In this Essay, I describe how I imple-

ment the three components of Ashar’s prefigurative pedagogy in the

REEL Policy Clinic. I posit that prefigurative pedagogy can be partic-

ularly vital in moments of retrenchment during which—according to

scholar Kimberl ´e Crenshaw who coined the concept

—hard-won ra-

cial progress is undermined by laws that seek to re-entrench racial

stratification and relegate Black Americans to second-class citizen-

ship.

As scholar Reva Siegel asserts, white supremacy morphs itself

into new forms when it is challenged—finding legally palatable ways

(quoting P

AUL

AEKSTAD

& S

OFA

AIO

RADIN

, P

REFIGURATIVE

OLITICS

: B

UILDING

OMORROW

ODAY

4–8 (2020)).

Ashar, supra note 5, at 877 n.35 (noting that everyday utopias “are hugely fruitful

places from which to think differently and imaginatively about concepts, particularly when

such thinking is oriented to a socially transformative politics.”).

Id. at 871.

Ashar notes that Cohen and Bronwen identify four characteristics of “prefigurative

legality”:

(1) the innate pluralism and indeterminacy of law provide a sense of possibility and

encourage the use of ‘legal techniques, meanings, and practices’;

(2) in unpredictable and alchemical ways, people acting collectively draw on ‘legal

logics and thoughtways’ to constitute themselves;

(3) people persist in using legal power ‘notwithstanding their dissatisfaction, and

sometimes deep loss of faith, in the capacity of traditional state-based modes of law

reform’; and

(4) people do not allow uncertainty about outcomes to inhibit experimentation with

legal change.

Id. at 878 (quoting Amy J. Cohen and Bronwen Morgan, Prefigurative Legality, 48 L

. I

. (forthcoming 2023)).

See Kimberl ´e Crenshaw, Race Reform and Retrenchment: Transformation and Legiti-

mation in Antidiscrimination Law, 101 H

ARV

. L. R

. 1331, 1336 (1988).

Id. (noting that race can be a stabilizing force in America).

154 CLINICAL LAW REVIEW [Vol. 30:151

to re-entrench racial inequality.

I posit that encouraging law stu-

dents to engage in social analysis that helps them to understand the

legal landscapes that fuel retrenchment and to exercise radical imagi-

nation to devise innovative interventions to respond to such moments

of retrenchment in dialogical relationship with clients as collaborators

who help students to dream of new social arrangements, can help clin-

ics to be responsive to moments of retrenchment. I also expand

Ashar’s concept and assert that another component—bravery—be im-

plemented in prefigurative pedagogy so that students build this quality

and exercise it as they engage in racial justice lawyering during times

of retrenchment in which upsetting the status quo of inequality can

engender risk and derision.

In the years following racial progress such as the election of Ba-

rack Obama,

as well as increased awareness of racial inequality in

America (albeit brief) following the killing of George Floyd,

I be-

lieve that the nation is again in a moment of retrenchment that re-

quires innovative lawyering to help to cure it. The issuance of an

Executive Order condemning training on racial inclusion in federal

agencies that triggered copycat legislation around the nation barring

teaching about racial inequality has left an indelible imprint on the

nation, the legal profession, and many legal institutions.

These legis-

See Reva Siegel, Why Equal Protection No Longer Protects: The Evolving Forms of

State-Enforcing State Action, 49 S

TAN

. L. R

. 1111, 1113 n. 4 (1997).

Peniel Joseph, Obama’s Efforts to Heal Divisions and Uplift Black America, T

ASH

. P

OST

, (Apr. 22, 2016) https://www.washingtonpost.com/graphics/national/obama-

legacy/racism-during-presidency.html (noting that Obama’s election “was heralded as the

arrival of a ‘post-racial’ America, one in which the nation’s original sin of racial slavery and

post-Reconstruction Jim Crow discrimination had finally been absolved by the election of

a black man as commander in chief.”).

“Protests and demonstrations that erupted in the summer of 2020 following the kill-

ings of unarmed Black Americans by law enforcement . . . appeared to signal a clarion call

for America to reckon with its racist past.” Janel A. George, The End of ‘Performative

School Desegregation’: Reimagining the Federal Role in Dismantling Segregated Education,

22 R

UTGERS

ACE

& L. R

. 189, 191 (2021).

Executive Order 13950 issued by former President Trump excluded from federal

contracts any trainings deemed to be “divisive” or that included “divisive concepts.” The

Order also prohibited “race or sex stereotyping” or “race or sex scapegoating.” Combat-

ting Race and Sex Stereotyping Exec. Order No. 13950, 3 C.F.R. § 433 (2020) (rescinded)

[hereinafter “Exec. Order 13950”].

The order was later invalidated by a federal court and rescinded by President Biden

upon taking office. See Jessica Guynn, Donald Trump Executive Order Banning Diversity

Training Blocked by Federal Judge, USA T

ODAY

(Dec. 23, 2020, 6:40 PM), https://

www.usatoday.com/story/money/2020/12/23/trump-diversity-training-ban-executive-order-

blocked-federal-judge/4033590001/. “The summer of 2020 was an inflection point for legal

education’s relationship with racial and other inequities. After Minneapolis police mur-

dered George Floyd, faculty, administrators, and students spoke out with increased ur-

gency about the need to address race in law school curricula . . . Many law

schools . . . formally (re)dedicated themselves to helping students recognize and analyze

structural inequalities and how the law perpetuates them.” Alexa Chew & Rachel Gurvich,

Fall 2023] Launch of a Racial Justice Clinic 155

lative developments have been followed by rollbacks of civil rights by

the courts, including the evisceration of affirmative action in higher

education.

These events have significantly impacted the nation’s law

students. In the wake of 2020, many law students began demanding

more law school courses addressing racial inequality in America.

Even as legislation barring teaching about racial inequality spread,

many law schools adopted commitments to addressing racial equity,

outlined by institutional learning objectives focused on ensuring that

students graduate with knowledge of the role of the law and social

stratification, and initiated new centers, clinics, and institutes focused

on racial justice issues.

The American Bar Association’s (ABA)

Saying the Quiet Parts Out Loud: Teaching Students How Law School Works, 100 N

. L.

. 887, 887 (2022).

See Students for Fair Admissions v. President and Fellows of Harvard College, 143 S.

Ct. 2141 (2023) (decided together with Students for Fair Admissions, Inc. v. University of

North Carolina et al., No. 21-707, 143 S. Ct. 2141 (2023)); see also Dobbs v. Jackson

Women’s Health Center, 142 S. Ct. 2228 (2022) (invalidating the federal constitutionality

of abortion, permitting states to regulate or prohibit abortion, and overturning Roe v.

Wade, 410 U.S. 113 (1973)).

“We are with a generation of students who want concrete actions and outcomes . . . I

think they’re thirsting to make a difference and to be in an environment that wants to

encourage making a difference and also inclusion and wellbeing.” Michelle Weyenberg,

Which Law Schools Take the Lead in Racial Justice?, N

’

URIST

: P

(Dec. 7, 2022,

8:00 AM), https://nationaljurist.com/prelaw/prelaw-news/which-law-schools-take-the-lead-

in-racial-justice/ (quoting James Hackney, dean of Northeastern University School of

Law).

According to UCLA Law’s CRT Forward Tracking Project, since September 2020, a

total of 209 local, state, and federal government entities across the United States have

introduced 670 anti-Critical Race Theory bills, resolutions, executive orders, opinion let-

ters, statements, and other measures. CRT F

ORWARD

RACKING

ROJECT

, https://crtfor-

ward.law.ucla.edu/ (last visited Jun 22, 2023).

See Ilana Kowarski, How U.S. Law Schools Are Preparing Students for Racial Justice

Work, U.S. N

EWS

& W

ORLD

. (Oct. 21, 2022), https://www.usnews.com/education/best-

graduate-schools/top-law-schools/articles/how-u-s-law-schools-are-preparing-students-for-

racial-justice-work (noting that the BLM protests of the summer of 2020, led many law

schools “to begin teaching more thoroughly about the disparate impact of laws and law

enforcement methods on marginalized populations”); Weyenberg, supra note 17; see also

Angela Onwuaci-Willig et al., Law Deans Antiracist Clearinghouse Project, A

’

. L.

CHS

., https://perma.cc/B2RL-BCHT (last visited Oct. 12, 2021).

Georgetown University Law Center, like many other legal education institutions,

also adopted an Institutional Learning Outcome (ILO), which states that the school seeks

to equip students with the “[a]bility to think critically about the law’s claim to neutrality

and its differential effects on subordinated groups, including those identified by race, gen-

der, indigeneity, and class.” Georgetown Law, Institutional Learning Outcomes, O

FFICE OF

CADEMIC

FFAIRS

(Jun. 22, 2023) https://www.law.georgetown.edu/admissions-aid/aba-

required-disclosures/institutional-learning-outcomes/ A couple of examples of recently es-

tablished law school entities focused on racial justice include St. John’s University’s School

of Law’s Center for Race and the Law led by Renee Nicole Allen, What We Do, C

FOR

ACE

& L., https://www.stjohns.edu/law/academics/centers-institutes/center-race-and-

law#:~:text=John’s%20Law%20Professor%20Renee%20Nicole,symposia%2C%20dia-

logue%2C%20and%20scholarship (last visited June 27, 2023) (providing opportunities for

students, academics, practitioners, and community members to examine race and engage in

156 CLINICAL LAW REVIEW [Vol. 30:151

House of Delegates approved accreditation requirements outlined in

Revised ABA Standards 303 (b),

and 303 (c), which requires that a

“law school shall provide education to law students on bias, cross-cul-

tural competency, and racism: (1) at the start of the program of legal

education, and (2) at least once again before graduation.”

While not

all in the legal academy share a commitment to addressing racial ine-

quality and the role of the law,

recent events have undoubtedly

ushered in a new era of legal education in which many legal education

institutions—and clinical educators— are exploring how to address

these issues. I agree with Movement lawyer and scholar Purvi Shah’s

assertion that “[m]oments of social unrest offer us an opportunity, if

not an imperative, to examine business as usual—to excavate what is

idea exchange about its intersection with the law through lectures, symposia, dialogue, and

scholarship); the University of Pennsylvania’s Carey School of Law’s Advocacy for Racial

and Civil Justice Clinic (ARC) led by former LDF attorney Cara McClellan, Advocacy for

Racial and Civil Justice Clinic, U. P

ENN

SCH

OF L

., https://www.law.upenn.edu/clinic/arc/

(last visited June 27, 2023) (providing students with hands-on experience working in civil

rights litigation and policy advocacy in the Philadelphia region using a movement law-

yering approach); the University of Minnesota School of Law’s Racial Justice Law Clinic,

led by former LDF counsel Liliana Zaragoza, Racial Justice Law Clinic, U

NIV

. M

INN

. L.

CHOOL

, https://law.umn.edu/course/7120/racial-justice-law-clinic (last visited June 27,

2023) (teaching students how to engage in direct representation, strategic litigation, and

other forms of advocacy as part of a greater movement to advance the rights of Black,

Indigenous, Latine/x, Asian American Pacific-Islander and/or other People of Color); and

the Center for Racial and Disability Justice at Northwestern Pritzker School of Law,

Center for Racial and Disability Justice, Faculty & Research, N

ORTHWESTERN

RITZKER

L., https://www.law.northwestern.edu/research-faculty/racial-disability-justice/ (last

visited June 27, 2023) (the Center is the first of its kind and focuses on “pressing social

justice issues affecting the lives of disabled people of color, women with disabilities,

LGBTQIA+ disabled people, and low-income disabled people).

303(b) notes that law schools shall provide opportunity for students to develop pro-

fessional identity. See ABA Standards & Rules of Pro. for Approval of Law Schools, Stan-

dard 303 (2022-2023).

Id. New Interpretation 303-6 notes “the importance of cross-cultural competence to

professionally responsible representation and the obligation of lawyers to promote a jus-

tice system that provides equal access and eliminate bias, discrimination, and racism in the

law should be among the values and responsibilities of the legal profession to which stu-

dents are introduced.” Id. at 19.

A group of ten Yale Law School professors submitted a joint memo to the ABA

protesting its adoption of 303(b) and (c) and noting that the requirements “attempt to

institutionalize dogma, mandating instruction in matters that are unrelated to any distinc-

tively legal skill . . . .” See Bruce A. Ackerman et al., Response to May 25, 2021, Notice re

Proposed Revisions to Standards 205, 206, & 303 of the ABA Standards and Rules for Pro-

cedure for Approval of Law Schools, C

OUNCIL OF THE

ECTION OF

EGAL

DUCATION

AND

DMISSIONS TO THE

(June 23, 2021), https://www.americanbar.org/content/dam/

aba/administrative/legal_education_and_admissions_to_the_bar/coun-

cil_reports_and_resolutions/comments/2021/june-2021/june-21-comment-yale-law-

school.pdf. As scholar Etienne Toussaint observes, “[s]ome legal scholars have questioned

whether adopting a cross-disciplinary social justice mission within law school clinical pro-

grams has politicized law teaching.” Etienne C. Toussaint, The Purpose of Legal Educa-

tion, 111 C

. L. R

. 1, 46 (2023).

Fall 2023] Launch of a Racial Justice Clinic 157

rotten, and rebuild something better . . . if we are courageous inside

this vulnerable moment, there is an opportunity for transformation.”

This Essay illustrates how Ashar’s prefigurative pedagogy is em-

ployed in the REEL Policy Clinic and asserts that it offers an ap-

proach for rebuilding and expanding upon clinical pedagogy as a tool

for preparing law students to advance racial justice in times of re-

trenchment. It seeks to find a place in the scholarship examining peda-

gogical innovations in clinical legal education to equip law students to

address social injustice.

The nation stands at the precipice of a par-

ticularly polarizing moment in which the future of a viable multi-racial

democracy is in question.

Law clinics can offer avenues to advance

justice in such a time. As Ashar asserts, “[p]refigurative thinking pro-

vides a framework for projects that social-movement organizations

may use to defy the inevitable retrenchment that follows from the sig-

nificant challenges to the status quo.”

Furthermore, the law school

clinic is an opportune place to engage in prefigurative pedagogy as

Ashar posits, “[l]aw clinics may engage in experimentation that sets a

foundation for ongoing radical visioning that sustains social move-

ments through periods of retrenchment and repression.”

I also rec-

ognize that I am fortunate to work at a law school that values clinical

legal education, innovation, and social justice. Georgetown Law’s

motto is: “Law is the means; justice is the end.”

I recognize that an

Purvi Shah, Rebuilding the Ethical Compass of Law, 47 H

OFSTRA

L. R

. 11, 14

(2018).

See, e.g., Margaret E. Johnson, An Experiment in Integrating Clinical Theory and

Clinical Education, 13 J. G

ENDER

, S

. P

’

& L. 161 (2005).

See Adam Serwer, The Capitol Riot Was an Attack on Multiracial Democracy, T

TLANTIC

(Jan. 7, 2021), https://www.theatlantic.com/ideas/archive/2021/01/multiracial-de-

mocracy-55-years-old-will-it-survive/617585/ (“What transpired yesterday was not simply

an assault on democracy. It was an attack on multiracial democracy, which is younger than

most members of the Senate.”); see also Brandon Tensley, America’s Fragile Multiracial

Democracy is at Stake, CNN (Oct. 21, 2021), https://www.cnn.com/2021/10/21/politics/vot-

ing-rights-fannie-lou-hamer-race-deconstructed-newsletter/index.html (noting of Fannie

Lou Hamer’s legacy, Tensley pointed out that “the fear that if Black people and other

marginalized groups had full access to the voting process, they would be able to elect pub-

lic officials who would advocate for their interests. They would want to dismantle systems

of oppression.”).

Ashar, supra note 5, at 879.

Id. at 883.

I value the motto’s recognition that law and justice are not interchangeable. This is

consistent with William Quigley’s assertion that “[w]e must never confuse law and justice.

What is legal is often not just. And what is just if often not legal.” William Quigley, Letter

to a Law Student Interested in Public Interest, 1 D

AUL

FOR

. J

UST

. 7, 16 (2007).

This is particularly resonant in the arena of education in which de jure Jim Crow education

once had the cover of law. See Plessy v. Ferguson, 163 U.S. 537 (1896) (upholding the

“separate but equal” Jim Crow segregation regime in public accommodations); see also

Ella Kohler, Law Center Celebrates 150 Years, T

OYA

(Oct. 29, 2020), https://

thehoya.com/law-center-celebrates-150-years/ (quoting Wallace Mylniec “We believe in

158 CLINICAL LAW REVIEW [Vol. 30:151

emphasis on social justice remains rare in many law schools that em-

phasize preparation for corporate law practice or other lucrative fields

of law.

I begin this Essay by recounting the racial justice lawyering work

that influenced my approach to clinical teaching. I then turn to the

three components of Ashar’s framework of prefigurative pedagogy

and provide illustrations of how these are implemented the context of

the REEL Policy Clinic to engage students in lawyering to address

racial inequities in at a time of retrenchment. In Part II, I outline how

I engage students in what Ashar terms “social analysis,” which entails

engaging students in excavating historic inequities and identifying

contemporary iterations of them.

I embrace Critical Race Theory

(CRT) as tool help students engage in this kind of social analysis, par-

ticularly the law’s complicity in perpetuating racial inequality in a

post-Civil Rights era.

In Part III, I share examples of how I integrate

“radical imagining” into the REEL Policy Clinic.

I describe how I

urge students to exercise imagination at the outset of the clinical expe-

rience and to employ their imaginative muscles throughout their

clinical practice to help advance their clients’ goals. This is consistent

with Ashar’s insistence that clinicians seeking to promote social

change encourage law students to think beyond the limitations of the

law and the “constraining rules of our profession and the material and

ideational austerity so deeply inscribed in our culture and our-

selves.”

In Part IV, I demonstrate how I operationalize the concept

of “dialogical relationship” with client groups.

This approach is a

departure from traditional client-lawyer relationships and instead em-

bodies a collaborative client-lawyer relationship in which students

contemplation through action. That is the best of what education does . . . .”); William M.

Treanor, G

. L., https://www.law.georgetown.edu/faculty/william-m-treanor/ (noting that

Dean Treanor has focused on increasing opportunities for students to pursue careers in

public interest law).

As Quigley notes “[u]fortunately, the experience of law school and the legal profes-

sion often dilute the commitment to social justice lawyering.” Id. at 16.

Ashar, supra note 5, at 895.

Critical Race Theory (CRT) is a practice of interrogating the role of the law in repli-

cating racial inequality. See Janel George, A Lesson on Critical Race Theory, A

. B

’

(

Jan. 11, 2021), https://www.americanbar.org/groups/crsj/publications/

human_rights_magazine_home/civil-rights-reimagining-policing/a-lesson-on-critical-race-

theory/. Kimberl ´e Crenshaw, who coined the term CRT, notes that it is a verb and not a

noun. Id. I agree with Professor Khiara Bridges’s response to the inquiry of whether CRT

is indeed a theory—“if we embraced a more expansive definition of ‘theory’—defining it as

analytical framework that can be used to explain or examine facts or events–then CRT

would qualify.” K

HIARA

M . B

RIDGES

, C

RITICAL

ACE

HEORY

: A P

RIMER

5 (2021).

Ashar, supra note 5, at 890.

Id. at 891.

Id. at 895.

Fall 2023] Launch of a Racial Justice Clinic 159

work closely and collaboratively with clients who I consider co-educa-

tors in the clinical space. I expand upon Ashar’s framework of

prefigurative pedagogy and suggest the addition of another

component.

In Part V, I underscore how and why I seek to instill in students

what I believe is another necessary competency to effectively advance

racial justice in times of racial retrenchment—bravery. As scholar

Betty Hung asserts, to be real partners in social change, lawyers must

“be ready and willing to take risks, relinquish our privileges, make

sacrifices, and demonstrate real courage in the face of adversity.”

Therefore, I share these early reflections of my journey as a clinician

in this same spirit. The ability to lawyer in the face of adversity, uncer-

tainty, and discouraging odds is a feature of this bravery.

I close this Essay with some thoughts about working to advance

racial justice in this moment of retrenchment. The African Proverb

noted at the top of this Essay underscores the importance of telling

one’s story, even in the face of defeat. When the late Nigerian writer

Chinua Achebe was asked by an interviewer about the power of story-

telling as recognized in this African proverb, he responded, “story-

telling is something that we have to do, so that the story of the hunt

will also reflect the agony, the travail—the bravery, even, of the

lions.”

Therefore, I tell this story of embarking on the journey of

creating a new clinic dedicated to the long, brave work of racial jus-

tice. I outline how the framework of prefigurative pedagogy, coupled

with bravery, can prepare students to engage in racial justice work at

times of retrenchment. As a junior scholar with a Clinic in its nascent

stages, sharing some of these early reflections and vulnerabilities is a

challenge, but in the spirit of Chinua Achebe’s lesson, I hope it is a

brave one. I hope that this story inspires other clinicians to adopt fea-

tures of prefigurative pedagogy in their clinics and to face the uncer-

tainty of this moment of retrenchment with courage.

I. F

ROM

IVIL

IGHTS

AWYER TO

LINICIAN

A. A Legislative Lawyer

I’ve encountered many law students who don’t realize becoming

a legislative lawyer is a career option.

When I was a law student in

Betty Hung, Movement Lawyering as Rebellious Lawyering: Advocating with

Humility, Love and Courage, 23 C

LIN

. L. R

. 663, 669 (2017).

The title of this Essay is a play on the title of an interview of Chinua Achebe. In

detailing a Paris Review interview of the late Nigerian writer Chinua Achebe, a reporter

quotes Achebe on storytelling. Quinn, supra note 1; see also LaGarrett J. King, When

Lions Write History, 1 M

ULTICULTURAL

DUC

. 2, 2 (2014).

I wrote an article for the ABA Law Students Division outlining the role of the legis-

160 CLINICAL LAW REVIEW [Vol. 30:151

the early 2000s, I certainly did not realize that a “real lawyer” could

focus solely on policy work rather than litigation. It was my Property

professor who highlighted for me the import of public policy.

In-

stead of merely teaching black letter law, he urged students to ask

questions such as: What is the particular social and political context in

which the court is making its decision? How may that context have

played a role in influencing the outcome of the case? What policies

likely influenced or impacted the case? He began each lecture by shar-

ing the historic context preceding the case, which proved invaluable in

making us all aware that legal decisions are not made in a vacuum.

Indeed, CRT recognizes that social and political contexts can influ-

ence court decisions and that, as lawyers and scholars, we ought not

pretend that legal decisions are immune from the social and political

contexts in which they are made.

The grounding that my Property

professor provided inspired my interest in public policy and my pur-

suit of a career as a legislative lawyer. A legislative lawyer, I later

realized, could have a direct hand in shaping public policy. Chai Feld-

blum, the founder of Georgetown Law’s Federal Legislation Clinic

coined the term legislative lawyer and noted that the art of legislative

lawyering lies in “combining a thorough knowledge of law, with a so-

phisticated understanding of politics, in order to devise creative and

effective legislative and administrative solutions.”

I believe that legislative lawyers play a particularly important role

in advancing racial justice by transcending exclusive reliance upon liti-

gation. For example, the massive resistance that ensued throughout

the south following the seminal Brown ruling is testament to the effi-

cacy of legislative power accompanying litigation. Congress and the

Executive helped to bring massive resistance to its knees with enact-

ment of the Civil Rights Act of 1964, particularly its Titles IV and VI,

which included federal sanctions for recalcitrant school districts that

lative lawyer to help raise more awareness of this career option for law students. Janel

George, How the Legislative Lawyer Changes the World, A

. B

’

(Jan. 1, 2022),

https://www.americanbar.org/groups/law_students/resources/student-lawyer/career-paths/

how-the-legislative-lawyer-changes-the-world/.

I also owe a debt of gratitude to my property professor William Lawrence Church,

Sherwood R. Volkman-Bascom Professor of Law, University of Wisconsin-Madison School

of Law (retired), who inspired my interest in and dedication to public policy and legislative

lawyering.

The movement that preceded Critical Legal Studies, whose adherents were known as

Legal Realists, challenged traditional beliefs that the law was divorced from society and

politics. Instead, they argued that judges ought not pretend that the law was separate from

the social and political contexts in which decisions were made. Instead, Legal Realists pro-

posed that the law ordered society. Critical Legal Studies picked up where this movement

left off, taking the assertion even further by proposing that the law ordered injustice and

maintained a status quo of inequality. See Bridges, supra note 32, at 24.

Feldblum, supra note 2, at 824.

Fall 2023] Launch of a Racial Justice Clinic 161

helped to advance school desegregation.

Litigation accompanied by

legislative action and other legal levers can have powerful effects. For

example, while encouraging Congress to pass the Voting Rights Act,

former LDF Director-Counsel Sherrilyn Ifill noted that voting rights

lawyers and advocates have to essentially “play whack-a-mole,”

liti-

gating and challenging discriminatory voting laws while Congress fails

to act on reauthorizing the law. Legislation can promote the necessary

widespread systemic change needed to implement and enforce laws

that promote civil rights and racial equity. Instilling in law students an

appreciation for and understanding of legislative lawyering and the

competencies of a legislative lawyer, can help them to become well-

rounded lawyers who appreciate the range of legal levers needed to

advance racial justice.

I began my legal career with a post-graduate fellowship at Ge-

orgetown Law designed to steep lawyers in policy advocacy.

I had

the privilege of working on behalf of a multi-issue organization ad-

dressing challenges, such as immigration reform, the impact of domes-

tic violence on undocumented immigrant women, reproductive justice,

and healthy workplaces. The fellowship piqued my interest in using

my legal skills to shape and advance public policy. After completing

the fellowship and working for a couple of years on complex child

custody cases, I found my way to Capitol Hill, where I worked as a

staffer for a few years. I managed a legislative portfolio that included

education, immigration, and health care reform. Working for a Con-

gresswoman and a Senator exposed me to what made for effective

strategies for crafting and advancing legislative change. I also honed

strong listening skills through the years of taking hundreds of meet-

The Civil Rights Act and its enforcing regulations empowered the federal govern-

ment to investigate complaints of discriminatory behavior by federal fund recipients, con-

duct compliance reviews, and initiate compliance proceedings against non-compliant

school districts. By the end of 1966, the Johnson administration had terminated funds for

over 32 southern school districts based on their failure to comply with federal law. See

Janel George & Linda Darling-Hammond, Advancing Integration & Equity through Mag-

net Schools, L

EARNING

’

NST

., May 2021, at 6, 7. The strength that the federal gov-

ernment brought to bear made a significant impact on the progress of school

desegregation. “In 1961, only 6% of Black children in the South attended schools with

white children, but by 1973, almost 90% of Southern schoolchildren attended integrated

schools.” Id. at 7.

Press Release, NAACP Legal Defense and Educational Fund, Inc., On One-Year

Anniversary of Shelby County v. Holder Decision Ifill Urges Passage of Bipartisan Voting

Rights Act (June 20, 2014), https://www.naacpldf.org/press-release/on-one-year-anniver-

sary-of-shelby-county-v-holder-decision-ifill-urges-passage-of-bipartisan-voting-rights-

amendment-act/. Ifill served as LDF’s Seventh President and Director-Counsel from 2013

until 2022.

See Women’s Law and Public Policy Fellowship Program, G

. U. L. C

., https://

www.law.georgetown.edu/wlppfp/ (last visited Jun. 22, 2023).

162 CLINICAL LAW REVIEW [Vol. 30:151

ings with constituents and organizations interested in advancing their

legislative priorities. I learned to listen to discern their needs, to iden-

tify legislative levers to advance those priorities, and to understand

challenges and obstacles to achieving those priorities.

B. “All of this About a Boy?!”: Lawyering at the Intersection of

Racial Equity and Education

I soon found my way to the NAACP Legal Defense and Educa-

tional Fund, Inc. (LDF), the storied civil rights organization that liti-

gated major civil rights cases. It was at LDF where my work at the

intersection of racial equity and public policy afforded me key lessons.

The first lesson that I learned was that racial inequality in America

has been perpetuated largely by laws, policies, systems, and prac-

tices.

Although I didn’t name it as such as the time, I was learning a

tenet of CRT—that systems and institutions do the bulk of perpetuat-

ing racial inequality in America.

While de jure Jim Crow laws even-

tually gave way to more facially neutral de facto laws that foster racial

inequality,

I could see how racial stratification was crafted by design,

directly belying theories of post-racialism claiming that contemporary

America is distant from its racially inequitable past.

For example, I

learned more with granular specificity how housing segregation–the

result of discriminatory practices like redlining

– perpetuated segre-

This recognition of the normalization of racism in America is also embraced by many

critical race scholars. “CRT begins with the notion that racism is ‘normal, not aberrant, in

American society, and, because it is so enmeshed in the fabric of our social order, it ap-

pears both normal and natural to people in this culture . . . . Thus, the strategy becomes

one of exposing racism in its various permutations.” Gloria Ladson-Billings, Just What is

Critical Race Theory and What’s it Doing in a Nice Field Like Education? 11 I

’

UALITATIVE

TUDIES IN

DUC

. 7, 11 (Nov. 25, 2010).

George, supra note 32 (noting “CRT recognizes that racism is codified in law, em-

bedded in structures, and woven into public policy . . . . CRT recognizes that it is the

systemic nature of racism that bears primary responsibility for reproducing racial

inequality.”).

As scholar Kimberl ´e Crenshaw observed, “[t]he end of Jim Crow has been accompa-

nied by the demise of an explicit ideology of white supremacy. The white norm, however,

has not disappeared; it has only been submerged in popular consciousness.” Crenshaw,

supra note 10, at 1379.

This is consistent with the theory of “Post-Racialism,” which “denies that the nation

today is in any important way proximate to its historical past. It argues instead that, at

present, racism is an aberration, a rarity. It posits that enduring racial inequality is not the

effect of race or racism, but rather is the effect of other forces, like class or individual

behavior.” Bridges, supra note 32, at 5.

Ta-Nehisi Coates, The Case for Reparations, T

TLANTIC

(Jun. 2014), https://

www.theatlantic.com/magazine/archive/2014/06/the-case-for-reparations/361631/ (defining

“redlining” as the practice of “selectively granting loans and insisting that any property it

insured be covered by a restrictive covenant–a clause in the deed forbidding the sale of the

property to anyone other than whites . . . . Redlining destroyed the possibility of invest-

ment wherever black people lived.”).

Fall 2023] Launch of a Racial Justice Clinic 163

gated and under-resourced Black schools in jurisdictions where educa-

tion was largely funded through property taxes.

During my time with LDF, my work with the Dignity in Schools

Campaign,

a national coalition of over one hundred organizations

committed to eliminating discriminatory school discipline policies and

practices, highlighted the importance of crafting policy interventions

in collaboration with those directly impacted.

Namely, I learned that

those proximate to the problems are best situated to craft interven-

tions to address them. LDF’s commitment to working directly with

communities, including through its longstanding organizing arm,

helped me to understand the vital role that organizing played in legal

work. I learned that my role as a legislative lawyer working with com-

munity-based organizations was to contribute my legal expertise in

service of community crafted interventions—not to impose ideas or

interventions in a top-down manner.

This understanding of the cen-

trality of community organizing helped to shape my work then and

now, as well as my appreciation for the centering of the voices, exper-

iences, and expertise of those directly impacted by issues.

In August of 2014, the killing of 18 year-old Michael Brown in

Ferguson, MO, by police officer Darren Wilson

changed the trajec-

See Mission, D

IGNITY IN

CHOOLS

AMPAIGN

, https://dignityinschools.org/about-us/

mission/ (last visited Sept. 4, 2023) (noting that the campaign challenges the systemic prob-

lem of pushout in schools and works to dismantle the school-to-prison pipeline).

“Social justice advocacy is a team sport. No one does social justice alone. There is

nothing more exciting than being a part of a group that is trying to make the world a better

place.” Quigley, supra note 29, at 21 (2007).

Indeed, LDF has always had a community organizing arm, which has facilitated the

development of community relationships and community education. Notably, Rosa Parks

was an investigator and community liaison for the NAACP, supporting Black women who

reported sexual assault in southern communities. See D

ANIELLE

L. M

UIRE

T THE

ARK

ND OF THE

TREET

: B

LACK

OMEN

, R

APE

AND

ESISTANCE

(2010); see also

Leticia Smith-Evans et al., Unlocking Opportunity for African American Girls: A Call to

Action for Educational Equity, NAACP L

EGAL

. F

UND

, & N

’

OMEN

’

L. C

(2014), https://www.naacpldf.org/wp-content/uploads/Unlocking-Opportunity-for-African-

American_Girls_0_Education.pdf; Amanda Alexander, Nurturing Freedom Dreams: An

Approach to Movement Lawyering in the Black Lives Matter Era, 5 H

. H

. & C

. L. R

. 101, 116 (2021).

Scholar Amanda Alexander notes:

The lesson here is to pay attention to organizing. The law does not have the answers,

but organizers often do — they recognize the full scope of problems and locate the

roots of those problems in powerlessness . . . . Organizing is so central because it is

all about getting to the roots of power imbalance. Organizing builds power. And

visionary organizing focuses not just on what we are fighting against but offers a

vision of what we are fighting for.

Alexander, supra note 52, at 116.

“On August 9, 2014, police officer Darren Wilson shoots and kills Michael Brown, an

unarmed Black teenager in Ferguson, Missouri, a suburb of St. Louis. Protests and riots

ensue in Ferguson and soon spread across the country.” This Day in History, 2014: Michael

Brown is Killed by a Police Officer in Ferguson, Missouri, H

IST

. C

HANNEL

, https://

164 CLINICAL LAW REVIEW [Vol. 30:151

tory of my work at LDF. I was aware of the emergence of the Black

Lives Matter movement in the wake of the killing of Trayvon Martin

in 2012,

but it was Brown’s killing that illuminated for me the stark

connections between public education and racial injustice. Nikole

Hannah-Jones’ education reporting provided particularly compelling

insight into this connection. Hannah-Jones observed of Brown’s

mother, Lesley McSpadden, shortly after Brown’s killing, “She’s

standing in a crowd of onlookers, a few feet from where her son was

shot down, where he would lie face down on the concrete for four

hours, dead. And this is what she said. ‘You took my son away from

me. You know how hard it was for me to get him to stay in school and

graduate? You know how many black men graduate? Not many!’”

Education was at the forefront of Ms. McSpadden’s mind in the after-

math of her son’s killing. Furthermore, Hannah-Jones noted:

Michael Brown became a national symbol of the police violence

against black youth, but when I looked into his education, I realized

he’s also a symbol of something else, something much more com-

mon. Most black kids will not be shot by the police but many of

them will go to a school like Michael Brown’s.

I realized that the vestiges of the de jure segregation in schools

that should have been eliminated by the Brown ruling persisted al-

most unabated in communities like Ferguson, Detroit, Baltimore, and

other segregated, majority Black communities also impacted by disin-

vestment, political disenfranchisement, and economic challenges.

Shortly following Brown’s killing, I penned an op-ed, noting of

Brown’s educational trajectory:

By receiving his degree on August 1st, Michael, again, beat the

odds; he did not join the estimated 52 percent of Black males na-

tionwide, or Missouri’s 56 percent who did not receive a high school

diploma.”

Yet, Brown was still subjected to bias and punitive po-

licing. As I noted, “The same implicit bias that criminalizes black

males, resulting in overly punitive and exclusionary discipline prac-

tices, was rampant in the Ferguson Police Department and played

www.history.com/this-day-in-history/michael-brown-killed-by-police-ferguson-mo (last vis-

ited Jun. 22, 2023).

See generally P

ATRISSE

AHN

-C

ULLORS AND ASHA BANDELE

, W

HEN

HEY

ALL

OU A

ERRORIST

: A B

LACK

IVES

ATTER

EMOIR

(2018).

Nikole Hannah-Jones, The Problem We All Live With–Part One, T

HIS

. L

IFE

(July 31, 2015), https://www.thisamericanlife.org/562/transcript (emphasis added).

Id. Hannah-Jones noted, “[i]t took me all of five minutes on the internet to find out

that the school district he attended is almost completely black, almost completely poor,

and failing badly.” Id.

See Janel George, Understanding the School-to-Prison Pipeline, S

. L

OUIS

OST

-D

IS-

PATCH

(Aug. 31, 2014), https://www.stltoday.com/opinion/understanding-the-school-to-

prison-pipeline/article_7a054f9a-534e-54f1-bb94-f8425e5fd1f3.html.

Fall 2023] Launch of a Racial Justice Clinic 165

out in Ferguson’s streets in documented confrontations between its

black citizens and law enforcement.

For me, Brown’s killing underscored starkly the connections be-

tween education, the endurance of racial inequality, policing, and the

criminalization of Black people, as well as the intersecting issues of

poverty, political disenfranchisement, and all of the other various

means through which Black people have been relegated to second-

class citizenship in this nation. Brown’s killing also helped me to un-

derstand a similar connection with Trayvon Martin’s killing by a racist

vigilante. Martin was not supposed to be staying with his father, but

because he was suspended from school, he was staying at his father’s

home that fateful night.

These connections were consistent with Crenshaw’s concept of

“intersectionality,” which she defines as a “lens through which you

can see where power comes and collides, where it interlocks and inter-

sects.”

As Crenshaw noted in recent years, “[i]t’s not simply that

there’s a race problem here, a gender problem here, and a class or

LGBTQ problem there. Many times that framework erases what hap-

pens to people who are subject to all of these things.”

Likewise, the

lens of intersectionality illuminates the multiple dimensions of a stu-

dent’s identity that intersect with racial identity, such as class,

LGBTQ status, gender identity, and other characteristics–all which

impact a student’s unique educational experience. I believe that analy-

sis of educational inequality is incomplete without analysis of racial

subordination, political disenfranchisement, economic inequality, gen-

der identity discrimination, health disparities, and other dimensions

which impact the lived experiences and outcomes of too many chil-

Id.

See Brian Hamacher, Lisa Orkin Emmanuel, & Jeff Burnside, Trayvon Martin Sus-

pended from Miami High School for Possession of Empty Marijuana Baggie, NBC M

IAMI

(Mar. 26, 2012), https://www.nbcmiami.com/news/local/trayvon-martin-punched-george-

zimmerman-slammed-his-head-into-sidewalk-report/1919217/.Trayvon’s mother, Sabrina

Fulton, noted of the “leaked” information regarding the cause of her son’s suspension,

“[t]hey killed my son and now they’re trying to kill his reputation.” Id.

Kimberl ´e Crenshaw, Demarginalizing the Intersection of Race and Sex: A Black Fem-

inist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics, 1 U.

. L

EGAL

ORUM

8, 139 (1989) (noting anti-discrimination laws focus on the privileged

members of the group, “[t]his focus on the most privileged group members marginalizes

those who are multiply-burdened and obscures claims that cannot be understood as result-

ing from discrete sources of discrimination.”).

Kimberl´e Crenshaw on Intersectionality More Than Two Decades Later, C

OLUM

. L.

. (Jun. 8, 2017), https://www.law.columbia.edu/news/archive/kimberle-crenshaw-inter-

sectionality-more-two-decades-later; see also Bridges, supra note 32, at 14 (“CRT responds

that class, gender, religion, and even an individual’s behavior are important in explaining

social life . . . . The insight upon which CRT insists is that race, almost invariably, is a

factor. Race intersects with other axes of identity and -isms to produce the world in which

we exist.”).

166 CLINICAL LAW REVIEW [Vol. 30:151

dren of color in this nation.

In seeking to challenge “separate but equal” through the arena of

public education, the legal architects of Brown recognized that public

education, particularly at the k-12 level, provided a compelling dem-

onstration of the myriad evils of the Jim Crow regime.

Even today,

public education continues to serve as a barometer of the status of

racial equity, democracy, and citizenship in this nation. This has been

demonstrated most recently through the disparate impact of the pan-

demic on marginalized communities of color, pervasive school segre-

gation and under-resourcing of segregated schools of Black and

Brown children, attacks on affirmative action, among other enduring

issues.

In the months after Brown’s killing, I recall talking with a former

Capitol Hill colleague who noted that the Member of Congress she

worked for (who shall remain unnamed) explained with incredulity

when observing the unrest following Brown’s killing and the insur-

gence of the #BlackLivesMatter movement: “All of this about a

boy?!” Brown’s killing illuminated enduring inequalities impacting the

lives of Black Americans and re-ignited a reclamation of Black hu-

manity most recently witnessed following the killing of George Floyd.

Brown represented so many Black boys, and girls, and adults, includ-

ing those who had been criminalized, marginalized, and confined to

failing schools. Yes . . . all of this . . . about a boy.

C. Applying Lessons Learned from Civil Rights Lawyering to the

REEL Policy Clinic

The events of 2020, including the killing of George Floyd and

worldwide demonstrations,

inspired me to seek a new endeavor in

which I could combine my passion for teaching with advocacy to ad-

dress issues of racial inequality in education. I entered the law profes-

sor job “market” hoping to secure a position that would enable me to

“The public schools were chosen because they presented a far more compelling sym-

bol of the evils of segregation and a far more vulnerable target than segregated railroad

cars, restaurants, or restrooms.” Derrick Bell, Serving Two Masters: Integration Ideals and

Client Interests in School Desegregation Litigation, 85 Yale L.J. 470, 473 (1976).

See Elizabeth DeBray, Kara S. Finnigan, Janel George, & Janelle Scott, A Civil

Rights Framework for the Reauthorization of ESEA, N

’

DUC

. P

’

. (Oct. 2022),

https://nepc.colorado.edu/publication/reauthorization.

“In death Floyd has indeed ‘touched the whole world.’ The racial and political reck-

oning of 2020, and its continuing aftermath, can be traced back to the uprisings that fol-

lowed the news of his death.” Peniel E. Joseph, Who Was George Floyd, N.Y. T

IMES

OOK

. (May 17, 2022), https://www.nytimes.com/2022/05/17/books/review/his-name-is-

george-floyd-robert-samuels-toluse-olorunnipa.html (reviewing Robert Samuels & Toluse

Olorunnipa, H

AME IS

EORGE

LOYD

: O

’

IFE AND THE

TRUGGLE FOR

ACIAL

USTICE

(2022)).

Fall 2023] Launch of a Racial Justice Clinic 167

engage students in the kind of legislative lawyering work I had done

throughout my legal career.

Clinical legal education, with its empha-

sis on social justice,

appeared to be the right fit.

The scholarship of Ashar and other clinicians has provided me

with the language to name the lessons from legislative lawyering prac-

tice that I integrate into the REEL Policy Clinic. For example,

Deborah Archer’s “political lawyering” which utilizes a systemic re-

form lens in case selection, advocacy strategy, and lawyering process,

requiring the deployment of a variety of tools in the lawyer’s toolbox,

has informed my multi-prong approach for clinical practice.

These

tools include legislative research and analysis, legislative drafting, en-

gagement with decision-makers, and a variety of other policy interven-

tions—all lawyering tasks that I employed in my racial justice work

that I have integrated into the REEL Policy Clinic students’ clinical

practice. Before I describe how I integrate components of Ashar’s

prefigurative pedagogy into the REEL Policy Clinic’s practice, I de-

scribe how I engage in client and student lawyer selection for the

clinic.

As I planned the launch of the REEL Policy Clinic, I was mindful

of selecting clients who shared a systemic and multi-prong approach

to advancing racial justice. Drafting a theory of change for the REEL

Policy Clinic before selecting clients helped me to identify the guiding

values that would influence this client selection process. A Theory of

Change can function not only as a roadmap of sorts for engaging in

social justice work, but also as an articulation of values.

As Amanda

What is known as the law professor “market” is an application process that is facili-

tated by the American Association of Law Schools (AALS), which requires applicants to

submit background materials through the Faculty Appointments Register (FAR). Faculty

Appointments Register, A

’

. L. S

CHS

., https://aals.org/recruitment/current-faculty-

staff/far/ (last visited Jun. 22, 2023).

“[C]linical legal education strives to teach about justice and fairness and the roles

lawyers play in pursuit of these values.” Margaret E. Johnson, An Experiment in Integrat-

ing Critical Theory and Clinical Education, 13 A

. U. J. G

ENDER

. P

’

& L

, 161,

166 (2005).

“Political lawyers recognize that litigation, interdisciplinary collaboration, policy re-

form, and community organization must proceed together. Litigation is just one piece of a

complex advocacy puzzle.” Deborah Archer, Political Lawyering for the 21st Century, 96

ENV

. U. L. R

., 399, 402 (2019).

“Law professors seeking to train the next generation of social justice advocates

should expose students to the transformational potential of integrated advocacy—strategic

litigation, community organizing, direct action, media strategies, and interdisciplinary col-

laboration proceeding together–in the fight for social change.” Id. at 402.

I recognize that difference disciplines and entities define “theory of change” in va-

ried ways. An example of a theory of change outlined by a racial justice organization that I

think is particularly powerful is that of Race Forward, which notes in part:

Achieving a just, multiracial democratic society requires addressing structural racism

in all its manifestations—policies, institutions, and culture. It means that we must

168 CLINICAL LAW REVIEW [Vol. 30:151

Alexander asserts, a “theory of change helps us approach problems

with a clear plan, a set of values, a sense of whom we are accountable

to in our work, and metrics for success.”

I believe it can also serve as

a reminder, particularly when the work is difficult and progress seems

unattainable, of why and how we do the work. The mission of the

REEL Policy Clinic, to work to eradicate racial inequities in education

was clear, but what I learned during my time with LDF and the Dig-

nity in Schools Campaign was that a theory of change could articulate

exactly how an entity or organization would engage in the work.

This entails thinking about how and with whom the work will be done.

Or, as Alexander notes, thinking of your answer to the question—

“how does sustainable social change happen?”

This includes think-

ing through how success will be measured. I knew that measuring suc-

cess in the policy field could be difficult, as “wins” such as getting bills

enacted could be relatively rare.

Therefore, the REEL Policy Clinic’s Theory of Change

begins

with naming the problem, including why it existed and how it could be

addressed, as illustrated in an excerpt from the REEL Policy Clinic’s

updated Theory of Change below:

Racial inequality persists in public education because laws and poli-

cies function to reify racial stratification in America. Litigation alone

cannot dismantle these laws/policies that are deeply embedded into

systems, institutions, practices, and structures. A coordinated legisla-

tive effort—driven by those most impacted by these laws and poli-

cies—is necessary to dismantle systemic racial inequality in public

education.

One of the most important components of the REEL Policy

Clinic’s Theory of Change is its articulation of how we would engage

in racial justice work, as detailed below:

The REEL Policy Clinic seeks to help law students to understand the

role of the law in perpetuating racial inequality in education by ap-

plying CRT to engage in legislative advocacy to dismantle this ine-

elevate the concept of structural racism and redefine and popularize what a just,

multiracial, democratic society truly looks like. It also means that we must harness

our collective power to transform systems and culture to advance proactive and long-

lasting solutions for equity and justice.

Our Theory of Change, R

ACE

ORWARD

, https://www.raceforward.org/about/our-theory-

of-change (last visited June 27, 2023).

See Alexander, supra note 52, at 121 (noting that a “[u]nderstanding your own the-

ory of change — and that of other lawyers, organizers, and clients you are working with —

can help guide decisions and provide a broader strategy from which tactics will flow.”).

See DRAFT Updated Since Retreat—DSC Theory of Change, D

IGNITY IN

. C

AM-

PAIGN

(Oct. 2017), https://dignityinschools.org/wp-content/uploads/2017/10/UPDATED-

Theory-of-Change.pdf.

Alexander, supra note 52, at 121.

On file with author.

Fall 2023] Launch of a Racial Justice Clinic 169

quality. This work necessitates legislative advocacy that is

community-driven and evidence-based (defined as evidence centering

the lived experiences and expertise of people of color), with the goal

of effecting systems change. Students engage in this advocacy by em-

ploying a range of tools, including coalition-building, capacity-build-

ing, legal research and drafting, organizing, and oral and written

advocacy, and public education.

Finally, the Theory of Change recognizes the metrics used to gauge

our progress in achieving this goal:

We seek an education policymaking process in which more leaders of

color are centered, welcomed, involved, elevated to leadership posi-

tions, and whose ideas are incorporated into policy and practice. We

seek policy spaces in which white community members take owner-

ship in the labor to bring about racial equity.

We measure our progress through the increased participation and

centering of people and children of color in the education policymak-

ing process; incorporation of community-developed policy interven-

tions in education legislation, policy, and practice; and increased

representation of people of color and other historically minoritized

and marginalized people in policymaking positions, among other

metrics.

I mention the REEL Policy Clinic’s Theory of Change here be-

cause articulating a theory of change in advance of selecting clients or

outlining student projects proved invaluable because it provided

guardrails for the kinds of organizations the REEL Policy Clinic

would work with as clients and the kind of work that students would

engage in. For example, it was important that REEL Policy Clinic cli-

ents also believed in centering the voices of communities directly im-

pacted by racial inequality in education. Our clients also recognized

that lived experience, as articulated through the stories and voices of

those directly impacted

by educational inequity, were valuable

sources of knowledge. This was vital for ensuring that, when students

engaged in research, that they would look beyond “traditional” legal

resources and engage directly with impacted community members and

The term “directly impacted” can also have some negative connotations. In this con-

text, it refers to people who are personally impacted by issues that a particular clinic may

be working to address. As one organizer describes the term and her work, “[W]e meet

people where they are at—and we hire ‘directly impacted people.’ I’ve grown to hate that

term as it is used more and more in a tokenistic way and people rarely actually mean it.

Working and amplifying the stories of directly impacted people again means seeing people

as full people. Personally impacted people are impacted by the same issues you are or-

ganizing around and fighting for—or against.” Angela Lang, Serving, Organizing, and Em-

powering Communities of Color: Best Practices for Aligning Research, Advocacy, and

Activism, E

CON

. P

’

NST

. (June 15, 2022, https://www.epi.org/anti-racist-policy-re

search/serving-organizing-and-empowering-communities-of-color-best-practices-for-align-

ing-research-advocacy-and-activism/.

170 CLINICAL LAW REVIEW [Vol. 30:151

advocates to garner needed information for white papers, testimony,

and other legislative materials they produced for clients. This value is

reflected in students’ work product. For example, white papers, testi-

mony, and even fact sheets students have produced include quotes,

anecdotes, and policy recommendations directly from clients.

The REEL Policy Clinic’s first clients included a youth advocacy

organization and a parent advocacy organization. Both clients shared

the REEL Policy Clinic’s value of centering the voices of those di-

rectly impacted by racial inequities in education. The leaders of the

organizations included youth impacted by policies like discriminatory

school discipline practices and parents who fought for equitable

school funding and resources for their children’s schools respectively.

I was mindful to select clients who not only appreciated the educa-

tional goals of clinical education, but who also embodied and could

“model” the values of the REEL Policy Clinic’s Theory of Change for

students. For example, representatives from the youth advocacy or-

ganization skillfully interacted with lawmakers who were not aligned

with their policy requests. They managed to find common ground to

build relationships and find future opportunities for collaboration.

During meeting debriefs, I discussed how the representatives dis-

played these kinds of skills and students shared their thoughts about

how they could replicate them. In the following sections I describe

how Ashar’s framework, including dialogical engagement with clients,

in more detail, but I first describe the students who have comprised

the early cohorts of the REEL Policy Clinic.

During the student selection process, I consider the diversity of

experiences that students bring to the clinic space. Many law students

who are drawn to clinics often have a pre-inclination to engage in so-

cial justice work. For others, the clinical experience offers an opportu-

nity to engage in public interest lawyering before entering the world

of corporate law. Many of the students interested in the REEL Policy

Clinic also have backgrounds in education—some have been educa-

tors and some have worked in school systems. Some are also drawn to

policy work. They are often curious about what legislative lawyering

entails and hope to learn more about it in the clinic. Many are also

curious about working on issues of racial inequity in education. Ge-

orgetown Law students apply for clinics once a year. Students submit

detailed applications for consideration and clinic faculty review them.

During one of the selection rounds, I met with a student, a white

woman, who was interested in the REEL Policy Clinic. “Do I belong

in a clinic like this?” she asked me. I was concerned that she was im-

Students are mindful of confidentiality when doing this, particularly with minor

clients.

Fall 2023] Launch of a Racial Justice Clinic 171

plying that, as a white woman, she didn’t belong in a clinic focused on

racial justice. However, she clarified her concern — “I don’t want to

potentially take a spot away from a student of color who wants to be

in this clinic.” I assured her that the work of racial justice is everyone’s

responsibility. Often the labor of racial justice work is shouldered by

people of color who must find ways to manage the internalization of

the work while maintaining a “professional” demeanor as well as the

fatigue of shouldering the work, among other challenges. It can be

exhausting. “White people have a stake in promoting racial justice,” I

assured her. I informed her how we would begin with social analysis,

including a grounding in the origins of racial inequality in America

and use CRT as a tool to understand the role of the law in maintaining

them. That student did join the clinic and her contributions were

invaluable.

The REEL Policy Clinic has had a range of students, including

students of different races, ethnicities, and nationalities, as well as stu-

dents from immigrant families, students for whom law is their second

career, and students who are parents. Some of the most engaged stu-

dents in the clinic are white students, including those who have at-

tended schools in under-resourced, rural areas, who draw from their

experiences to inform their advocacy. I encourage all students to bring

their experiences to the clinic space and to learn from the experiences

of their peers. In the next section, I detail how I engage students in

Ashar’s conception of social analysis—an important component of

prefigurative pedagogy.

II. S

OCIAL

NALYSIS

: L

OOKING

ACK AND

OOKING

EEPER

In this section, I describe how Ashar’s first component of

prefigurative pedagogy— deriving a common social analysis — is

operationalized in the REEL Policy Clinic. Ashar asserts that “under-

standing background distributions and structures of power” can chal-

lenge conventional approaches to public interest lawyering.

Furthermore, Ashar underscores that this analysis can be informed by

pedagogy that moves between history and the present and that ques-

tions established social norms and hierarchies. I find this to be a vital

foundational step for preparing students to engage in racial justice

lawyering in times of retrenchment. I emphasize how our nation has

experienced times of racial retrenchment in the past and how lawyers

can play a pivotal role in such times. This helps students to see re-

trenchment not as an isolated event but as a development in a historic

pattern in which backlash follows times of racial progress.

Ashar, supra note 5, at 886.

172 CLINICAL LAW REVIEW [Vol. 30:151

A. Looking Inward: Social Analysis in the REEL Policy Clinic

I ground students’ social analysis of racial inequality in education

with “critical historical knowledge,”

including foundational lectures

during orientation and in the early weeks of the semester that trace

the trajectory of the fight for racial inequality in education in

America. First, I outline the historic denial of education to enslaved

(and, in some cases, free) Black people to help students recognize the

anti-Blackness at the root of racial inequities in education in America.

I expose the legal system’s complicity in this by highlighting the text of

laws that penalized Black people who sought to learn to read or other-

wise educate themselves in the antebellum south. I then draw from

scholarship that explores the rationale of this denial of education —

namely to keep Black people enslaved, to maintain a subservient un-

derclass,

and keep Black people relegated to second-class citizen-

ship.

I excavate obscured history about the development of the

contemporary education system, including scholar Derek W. Black’s

work exposing the role of emancipated Black policymakers in creating

publicly-funded education systems and supporting enactment of com-

pulsory education laws.

I begin with early cases like Roberts v. Bos-

ton,

and I also include lesser known cases, like Tape v. Hurley,

Lum v. Rice,

and Mendez v. Westminster

to help students under-

stand the reach and impact of school segregation laws and the ways

that subordinated communities leveraged the law to secure justice

leading up to the Brown v. Board of Education victory. Many students

express surprise when they realize the long trajectory of legal battles

waged by “people of color to secure access to education and the vari-

ous ways that the legal system has contorted to deny them access to

Id. at 888.

Scholar W.E.B. DuBois asserts that the provision of low-quality education to Black

people was part of an effort to ensure a working class that would perform the bulk of the

labor in a capitalist economy. DuBois termed this kind of education “caste education.” See

Clayton Pierce, W.E.B. DuBois and Caste Education: Racial Capitalist Schooling from Re-

construction to Jim Crow, 54 A

. E

DUC

. R

SCH

. J., 23S, 38S (2017).

I have found scholar Michael Dumas’ work to be invaluable in teaching students

about how anti-Blackness drives education policy. See Michael J. Dumas, Against the

Dark: Antiblackness in Education Policy and Discourse, 55 T

HEORY INTO

RAC

. 11-19

(2016).

Derek W. Black, S

CHOOLHOUSE

URNING

: P

UBLIC

DUCATION AND THE

SSAULT

MERICAN

EMOCRACY

110-11 (2020).

59 Mass. 198 (1849) (upholding Boston’s practice of school segregation although no

de jure school segregation laws existed).

66 Cal. 473 (1885) (invalidating segregated schools in the state of California). Shortly

after the Tapes’ legal victory, the California legislature enacted a law mandating segregated

schools.

275 U.S. 78 (1927) (upholding the “separate but equal” doctrine in education).

161 F.2d 774 (9th Cir. 1947) (invalidating California school segregation law).

Fall 2023] Launch of a Racial Justice Clinic 173

quality education.” I find this powerful grounding and preparation for

students to engage in addressing contemporary forms of racial inequi-

ties in education. As Ashar concludes, “[o]ur responses to [these]

structural conditions will fall short time after time if we as teachers

and students do not engage in social analysis of the problems on which

we are working.”

This is particularly important for racial justice

work because there is so much miseducation (and omission) of the

historic origins and manifestations of racial inequality in America and

the various ways that the legal system has facilitated it. However,

“[b]y engaging in ongoing social analysis, undergirded by critical his-

torical knowledge . . . lawyers and law students can expand their un-

derstanding beyond dominant paradigms.”

In addition, by building

students’ understanding of the ways that racial inequality in education

has been embedded in institutions and systems in order to endure,

students move beyond seeing racism as a product of specific and iso-

lated incidents between individuals, and instead, as a consequence of

systemic and institutional laws, policies, and practices. This grounding

establishes the foundation for their analysis of the ways that racial

inequities in education currently manifest.

To aid students in social analysis, I build in self-reflection exer-

cises early in their clinical experience. Engaging in self-reflection, a

hallmark of clinical education,

helps students to unpack their own

biases and assumptions. One self-reflection exercise is the telling of

their education stories. Students tell their education stories during the

first session of orientation. It is an early exercise in vulnerability but

students inevitably learn from their peers and identify similar exper-

iences that help them build connections. The instructions for the edu-

cation story are as follows:

Prepare Your Education Story - Please reflect upon your educa-

tional trajectory and consider when you first became aware of racial

difference (your own or others) along your journey? Did a particular

incident occur that prompted this realization? What happened? How

did it impact your educational journey or your perceptions about

race?

I provide enough space for students to choose the story they tell

to allow them the flexibility to avoid retelling painful stories, but I also

encourage students to reflect and identify ways that race or racial ine-

quality may have impacted them (even unknowingly) along their edu-

Ashar, supra note 5, at 888.

Id.

Wallace Mylniec, Where to Begin? Training New Teachers in the Art of Clinical

Pedagogy, 18 C

LIN

. L. R

. 101, 165 (2012) (noting that clinical supervisors must teach law

students to engage in self-reflection for their development as attorneys.)

174 CLINICAL LAW REVIEW [Vol. 30:151

cational journeys. The stories that students share are powerful, and

many draw upon them to inform their clinical practice.

I also use two other exercises to engage students in self-reflection

and social analysis. I borrowed these from the University of Michi-

gan’s college of Language Arts and Sciences’ (LSA) Inclusive Teach-

ing program.

The first exercise is the “Personal Identity Wheel,”

which prompts students to reflect upon their personal/individual iden-

tity. After filling in the exterior of the wheel, which contains prompts

such as birth order, skills you are most proud of, favorite color, and

favorite foods, students fill in three adjectives describing themselves in

the center of the wheel. Students fill in these wheels and then pair off

and share with partners.

Not only does this help students to reflect

on their individual identities, they recognize similarities with their

clinic colleagues. After students share their personal identity wheels,

we ask them to fill in the “Social Identity Wheel,”

which prompts

students to fill in identifiers such as race,

religious affiliation, age,

ethnicity, first language, and other identifiers.

This prompts them to

consider how they are externally perceived. After filling out the exte-

rior of this wheel, students then consider prompts in the center of the

wheel, including which identities you think about most often; which

identities have the greatest effect on how others perceive you; which

identities have the strongest effect on how you perceive yourself. We

then encourage students to again pair off and share with clinic col-

leagues.

These internal and external reflections prepare students to

begin to analyze the social structures and beliefs that impact their edu-

cational experiences and those of their clients.

Inclusive Teaching – the Basics to Advanced Practices, U

NIV

ICH

. C

OLL

ITERATURE

, S

AND THE

RTS

, https://sites.lsa.umich.edu/inclusive-teaching/ (last vis-

ited June 27, 2023).

Personal Identity Wheel, U.

ICH

. C

OLL

ITERATURE

, S

AND THE

RTS

https://sites.lsa.umich.edu/inclusive-teaching/personal-identity-wheel/. (last visited June 27,

2023).

We provide the caveat that students do not have to share anything that they’re not

comfortable sharing.

Social Identity Wheel, U

NIV

ICH

. C

OLL

ITERATURE

, S

AND THE

RTS

https://sites.lsa.umich.edu/inclusive-teaching/social-identity-wheel/ (last visited June 27,

2023).

In the Clinic, we acknowledge that race is a social construct and instead encourage

students to reflect upon how their perceived race may impact their social interactions and

education, health, and economic outcomes.

We also encourage students to add in other characteristics that are not indicated on

the wheel and acknowledge that such labels can often stifle one’s sense of self and identity.

We also do not require students to turn in anything written in response to this assign-

ment. The goal is to prompt students to reflect about their identities, including their indi-

vidual identities and their social identities (including how those identities are perceived or

presented in particular social contexts, like in law school) and how these identities (or

perceived identities) may impact their experience of the world.

Fall 2023] Launch of a Racial Justice Clinic 175

B. CRT as a Tool for Social Analysis

I employ CRT as a tool to help students engage in social analysis.

Applying CRT aids students in understanding the role of the law in

perpetuating racial inequality in education—and its potential to eradi-

cate it. First, CRT provides a valuable lens for students to critique the

ways the law has been complicit in reifying racial inequities in educa-

tion. As Crenshaw (who coined the term CRT) notes, it is a verb, not

a noun,

it is:

a way of seeing, attending to, accounting for, tracing and analyzing

the ways that race is produced, the ways that racial inequality is

facilitated, and the ways that our history has created these inequali-

ties that can now be almost effortlessly reproduced unless we attend

to the existence of these inequalities.

This recognition of the role of institutions related to racial ine-

quality also prompts students to understand the ways the law has been

complicit in replicating and reifying racial inequality. Namely:

CRT argues that when race figures centrally in legal scholarship, it

allows us to see how racial hierarchies are reflected in and repro-

duced by areas of law that have seemingly nothing to do with race—

like the tax code, securities laws, land use laws and intellectual

property laws.

I also employ it as a pedagogical tool. For example, during the

REEL Policy Clinic’s orientation, I share two photos with students

that show only school facilities and resources, including lockers and

books. The photos do not contain people. The two schools featured

are only fifteen minutes apart. I ask the students to guess the racial

demographics of the student populations at each school—simply by

looking at the photos. Students always guess the racial demographics

correctly— the poorly resourced school with used books and old fur-

niture is comprised mostly of Black and Latino students and the well-

resourced school with computers at each desk is attended mostly by

white students. CRT, I tell the students, is what helps us to understand

not only how we are able to accurately guess the racial demographics

of each school merely by looking at photos of resources, but to also

uncover the ways the law aids in perpetuating these kinds of resource

inequities along racial lines. For example, we delve into the history of

Jacey Fortin, Critical Race Theory: A Brief History, N.Y. T

IMES

(Nov. 8, 2021), https:/

/www.nytimes.com/article/what-is-critical-race-theory.html (noting that “Professor Cren-

shaw put it, CRT is more a verb than a noun.”).

Id. Crenshaw further notes, “For me, critical race theory is a method that takes the

lived experience of racism seriously, using history and social reality to explain how racism

operates in American law and culture, toward the end of eliminating the harmful effects of

racism and bringing about a just and healthy world for all.” Id.

176 CLINICAL LAW REVIEW [Vol. 30:151

redlining,

dependency upon property values to fund education, and

the Supreme Court’s failure to recognize a constitutional right to edu-

cation to understand how and why school resource inequities along

racial lines persist.

While there is a lot of misinformation about CRT, there are also

great resources that I draw from to help students understand it and

apply it in their social analysis, including a primer by scholar Khiara

Bridges and a casebook by my colleague scholar Dorothy Brown.

100

also penned a piece for the American Bar Association’s Human

Rights Magazine about CRT, which outlines CRT’s origins and some

aspects of race and the endurance of racism in America that many

CRT scholars recognize (in addition to the recognition that systems

and institutions can do the bulk of replicating racial inequality),

101

such as:

• Race is a social construct;

• Recognizing that racism is a feature of American life;

102

and

• Recognizing the relevance of people’s everyday lives to

scholarship.

I explore these various CRT components to aid students in their

social analysis. For example, to explore the concept of race as a social

construct, I introduce the Human Genome Project and its finding that

humans share the majority of the same genes.

103

I also discuss differ-

ent ways that racism operates in American life to demonstrate how it

is a feature of American systems, such as how racial categorization

was tied to whether one was classified as enslaved or free. Finally, I

encourage students to reflect upon their own experiences, including

the education stories that they share during orientation, and to bring

those experiences to bear in their clinical practice.

I also curate a seminar syllabus that provides opportunities for

students to engage in social analysis.

104

This includes incorporating

See Coates, supra note 49.

See San Antonio v. Rodriguez, 411 U.S. 1 (1973) (concluding that there is not a

fundamental right to education).

100

See generally Bridges, supra note 32; D

OROTHY

A. B

ROWN

, C

RITICAL

ACE

HE-

ORY

: C

ASES

, M

ATERIALS

, & P

ROBLEMS

(4th ed. 2023).

101

George, supra note 32.

102

This is not to concede and declare that racism is unsurmountable, but to recognize

that it has impacted so many aspects of American life, including education, health, and

economics. Id.

103

See The Human Genome Project, N

’

. G

ENOME

SCH

. I

NST

., https://

www.genome.gov/human-genome-project [last visited Sept. 5, 2023].

104

“[I]f you are directing an immigration clinic, cite immigrants. If you are directing a

criminal clinic, cite incarcerated people. If you are directing a clinic that represents indige-

nous people, consider populating your syllabus with the intellectual production of Native

Fall 2023] Launch of a Racial Justice Clinic 177

readings authored by writers of diverse backgrounds—including non-

lawyers such as organizers, educators, and parents. To be clear—this is

a starting point, having “token” readings by authors of diverse back-

grounds does not alone complete the work of incorporating different

perspectives throughout the clinic. This also entails selecting readings

that center the voices of impacted individuals. For example, for a sem-

inar on professional ethics, I assign students the applicable rules of

professional conduct, but also assign Shah’s article Rebuilding the Eth-

ical Compass of Law,

105

which prompts students to consider their own

ethical motivations for clinic practice and to critique the rules of pro-

fessional conduct. Shah’s experience as a Movement lawyer is vital for

this exercise as she draws from and outlines learnings from her own

work. Students expressed concerns about why so many rules are re-

strictive in nature rather than encouraging or incentivizing attorneys

to affirmatively act in ways that center and support historically

marginalized individuals. Students engage in a group exercise and for-

mulate their own Rules of Professional Conduct that govern their

clinical practice for the semester. I encourage students, consistent with

Shah’s critique of professional rules, to think proactively and affirma-

tively about representing clients and to recognize what governing

principles are important to them.

106

Prior groups of students have de-

veloped lists of guiding ethics that include working collaboratively to

reach equitable resolution for clients and acknowledging that the legal

system has been a site of harm and trauma for some clients and to

affirmatively act to try to mitigate this harm.

Through various approaches that I employ in the REEL Policy

Clinic students learn to engage in social analysis, including by applying

CRT to understand the origination and current manifestations racial

inequities that impact the educational experiences of students of

color. I posit that CRT is both a pedagogical tool for clinicians and

tool for clinic students to engage in social analysis to better under-

stand how the law can be leveraged to uphold a status quo of racial

inequality or to eradicate it.

people. The idea here is to trust oppressed people to prescribe their own emancipation,

read what they have writer on their pain and prescriptions, and then as an anti-racist clinic

set out to be an ally.” Norrinda Hayat, Freedom Pedagogy: Toward Teaching Antiracist

Clinics, 28 C

LIN

. L. R

. 149, 162 (2021).

105

47 H

OFSTRA

L. R

. 11 (2018). Shah is the Founder and Executive Director of the

Movement Lab and Co-Founder of Law for Black Lives. Purvi Shah, M

OVEMENT

, https://movementlawlab.org/purvi-shah (last visited June 27, 2023).

106

Id. at 14 (noting the rules are silent “on what the affirmative role for a lawyer is in

society . . .”).

178 CLINICAL LAW REVIEW [Vol. 30:151

III. R

ADICAL

MAGINATION

Encouragement of the use of imagination is uncommon in the law

school classroom. As Ashar notes, imagination “remains under siege

in U.S. educational systems, which are under pressure to prepare stu-

dents to obediently serve capital and develop historical understanding

that reinforces current distributions of wealth and power.”

107

Law

schools often discourage students from being imaginative as many fo-

cus on preparing students to conform to the current social status

quo.

108

However, because of their proximity to social justice practice

and tradition as laboratories of innovation, law clinics hold the prom-

ise of providing students with opportunities to engage in radical imag-

ining. In addition, and as Ashar notes, “[b]oth the duty of loyalty to

clients and the principle of academic freedom enable clinical teachers

to construct dockets with a rare degree of independence, shielded

from the market and state pressure that most progressive civil-society

organizations face to reinforce (or not challenge) status-quo distribu-

tions of wealth and power.”

109

I posit that in times of retrenchment,

during which solutions seem unworkable, teaching clinic students how

to exercise radical imagination is necessary and urgent. In this section,

I describe how I introduce clinic students to radical imagining.

A. Practicing Radical Imagining

I employ a radical imagination exercise at the close of orientation

to begin to challenge students to think beyond defensive legislative

responses and understand the importance of an “offensive” policy

strategy, including strategies that extend beyond the limitations of the

law.

110

I agree with Asher’s assertion of the utility of radical imagina-

tion—it’s important for students to have a vision for which they are

working towards, even if it seems beyond reach. Too often, policy

work—particularly in the arena of racial justice during times of re-

trenchment during which change seems unattainable and racism

seems intractable—is couched in defensive terms. However, teaching

students to engage in dreaming is vital for encouraging them to proac-

tively work towards shaping the kind of world they want, rather than

107

Ashar, supra note 5, at 879.

108

“Law is an exceptionally fraught terrain for radical political imagination due to its

use as an instrument of social control, as well as its use to discipline and domesticate dis-

ruptive social movements.” Id. at 880.

109

Id. at 882.

110

Indeed, as Phil Schrag has noted, “One of the hallmarks of an effective lawyer is that

he or she can (1) recognize those occasions when doing a task by the book is not likely to

achieve satisfactory results, (2) figure out a creative alternative, and (3) find the courage to

deviate from the accepted norm of practice.” Philip G. Schrag, Constructing a Clinic, 3

LIN

. L. R

. 175, 184 (1996).

Fall 2023] Launch of a Racial Justice Clinic 179

merely preventing bad things from happening.

111

This also entails af-

firmatively advancing a vision of justice. As Alexander asserts, “we

must focus on what we are fighting for. We invite people to dream of a

better future and to work toward it with us.”

112

I adapted this exercise from one developed by the late scholar

and former LDF voting rights litigator Lani Guinier who challenged

her students to imagine a just world by drawing the kind of world they

desired.

113

I give students a large blank sheet of paper and crayons

and markers. After recovering from the initial shock of seeing crayons

and markers (for some law students, for the first time in decades),

students settle in and listen to the directions to draw their vision of a

racially just school. “How can you work toward achieving something if

you can’t imagine it?” I ask them. What does it look like? What does

it sound like? Who is in the school? Who are the teachers? Who are

the students? Sometimes students are hesitant, complaining that they

cannot draw. Then, students begin to draw. Some ask, “Is this right?”

Of course, I tell them that there is no “right answer,” which is difficult

for many of them to grasp.

The ideas that students come up with are innovative. Some of

their schools include “cooling off” rooms where children can calm

themselves rather than being placed in detention if they are upset.

When I started doing this exercise, I initially asked students to individ-

ually draw pictures of their visions of racially just schools. However, I

recently began having the students draw a picture as a group. This has

proven successful, as it inspires students to develop a collective vision

as they draw it on the paper. I also find that doing this as a group

exercise urges students to collaborate, to discuss their visions, and to

practice radical imagining together. This helps them to “recognize the

co-constitutive relationship between material reality and ideology.”

114

Ashar also encourages the extension of this collaborative dreaming to

dialogue with clients and organizational partners.

115

A recent group of

students drew a school that was accessible to the local community and

that offered GED class and other adult education options. This is the

111

“We seek a balance of ‘defense, offense, and dreaming.’ It is not enough to focus on

what we are fighting against; we must focus on what we are fighting for. We invite people

to dream of a better future and to work toward it with us.” Alexander, supra note 52, at

128-129.

112

Id. at 129.

113

“In one class, she brought huge rolls of paper and challenged students to draw

images of better social arrangements—and in so doing, invited students to get out of their

comfort zones, to laugh, and to imagine ways that fueled the rest of the course.” John F.

Manning & Martha Minow, In Memoriam, Tribute, Professor Lani Guinier, 136 H

ARV

. L.

. 743, 748 (2023).

114

Ashar, supra note 5, at 894.

115

Id.

180 CLINICAL LAW REVIEW [Vol. 30:151

first exercise for many students in thinking beyond the boundaries of

the law. Radical imagining is a competency that we seek to build in

the REEL Policy Clinic, because addressing deeply-entrench

problems of racial inequality requires creative problem-solving, flexi-

bility, and agility. I hope to apply this idea to create opportunities to

engage in creative and collaborative dreaming with clients and part-

ners about innovative ways to advance their goals, unbound by the

confines of the law.

I also share a real-life example of exercising imagination with stu-

dents. I tell the story of being in a meeting as an LDF lawyer with the

staff of a conservative lawmaker and several colleagues from other

civil rights organizations during the process of developing the legisla-

tive language for a federal education law. We were seeking the

lawmaker’s support of a provision in the law that would require re-

porting of data vital for civil rights enforcement. The staffer re-

sponded, “My boss can’t support anything with the words ‘civil rights’

in it.” Many of my civil rights colleagues were astounded, frustrated,

and discouraged because the data we hoped to require districts to re-

port included this language. As the meeting neared a close, I thought

quickly and suggested merely cross-referencing the statute number

containing the data that we wanted to have reported rather than in-

cluding the actual language containing the words the lawmaker was

opposed to. We were able to arrive at a compromise with that

lawmaker, securing his support and achieving our legislative goal. I

share this not to gloat about that compromise, but to illustrate that

creative problem-solving can be vital for lawyers achieving a goal.

Maintaining a vision of the end goal (even if it seems far out of reach)

is vital for staying the course. At the beginning of this Essay, I men-

tioned the story I tell my students of the pioneering civil rights advo-

cates who grew up in the Jim Crow south and never interacted with

white people in public spaces, yet who advocated for an integrated

world that they had never seen.

116

Some didn’t survive to witness the

reality of integrated public spaces they fought to achieve. I remind my

students that we are the beneficiaries of their imaginations.

IV. D

IALOGICAL

ELATIONSHIP WITH

LIENTS

Establishing and maintaining a dialogical relationship with cli-

ents, in which clients are collaborators, sources of knowledge, and co-

constitutors of legal solutions, is foundational for the kind of practice

116

As Quigley notes, “Every good law or case you study was dismissed as impossible or

impractical for decades before it was enacted . . . it is only in the hearts and dreams of

people seeking a better world that true social justice has a chance.” Quigley, supra note 29,

at 28.

Fall 2023] Launch of a Racial Justice Clinic 181

the REEL Policy Clinic engages in, which departs from lawyer-client

models that may perceive the lawyer as the sole holder of knowledge.

For example, we have a seminar focused on coalitions in which we

invite our clients to join us at the law school to teach our students how

to participate effectively in coalitions. Part of student project work

sometimes includes regularly attending coalition meetings with clients

and client partners. We first prompt students to reflect upon their own

privilege as law students, including how coalition partners may per-

ceive them as very knowledgeable of the law. By the time that we host

this seminar, students have completed several self-reflective exercises

in which they consider their privilege as law students and how others

may perceive (or misperceive them). Even as early as client introduc-

tion meetings, I often have to encourage students to reflect on how

they present themselves. For example, at an initial meeting about

school discipline with youth advocates, a couple of students intro-

duced themselves as “2Ls” or “3Ls.” We discussed later how some-

thing so innocuous as how law students refer to themselves can be

alienating for clients who are not familiar with law school “lingo,” but

who can understand, “I am a second-year law student” or “I am in my

last year of law school.” Sometimes, this is how minute the reflection

must be for students to unpack how they present themselves and how

that presentation, in turn, can either help to build relationships or to

alienate clients. These small interactions can impact the process of

building trust and understanding in the client relationship.

Another aspect of dialogical relationships is recognizing the ex-

pertise and knowledge of clients and clinic partners. When students

attend coalition or partner meetings, I regularly tell them to not as-

sume that they are the smartest people in the room. Instead, I urge

them to take a learning posture. Too often, students are eager to share

their knowledge and legal expertise (however limited it may be), but I

urge them to approach these interactions as learning opportunities,

not opportunities to show how much they know. We encourage them

to learn from coalition members, to listen for their concerns and

needs, to ascertain how their client’s interest may be consistent with

or diverge from the interests of other coalition partners, and–most im-

portantly–to learn from the expertise and institutional knowledge of

coalition members.

In the client-led coalitions seminar, students work directly with

clients to engage in scenarios that require them to grapple with issues

such as the appropriate role of the lawyer in coalitions (particularly

when some coalition members may be confused about who the lawyer

182 CLINICAL LAW REVIEW [Vol. 30:151

represents),

117

resolving intergenerational conflicts, and navigating

and resolving differences in coalition strategies. Students learn from

and problem-solve alongside clients (including our youth advocates).

Thereby, the client also becomes the teacher. This may be contrary to

the practice of many clinics, in which the lawyer is usually the sole

holder of knowledge, but consistent with the REEL Policy Clinic’s

Theory of Change, clients are holders of knowledge and students are

learners.

We also build this dialogical relationship with clients by ensuring

that the clinic is a welcoming space for clients and engaging in mutual

aid. For example, because one of our client’s is a youth advocacy or-

ganization comprised of Black youth, we want to ensure that clients

see themselves in the REEL Policy Clinic space. To do that, we have

decorated the space with books by Black authors and other authors of

color, some posters the youth advocates produced, and other educa-

tional resources, such as books on Black history. We also practice mu-

tual aid, or the practice of providing material and immaterial support

to partners and neighbors, has its roots in Black communities who his-

torically pooled resources to support each other.

118

I became aware of

this during my time at LDF, when I realized how a gesture like cover-

ing the cost of lunch or coffee for meetings could make a tremendous

impact on the client (particularly clients impacted by income inequal-

ity). This is not about depleting the REEL Policy Clinic budget, but

using resources (when available) to support clients. When we host

youth clients at the law school, we provide lunch and snacks and cover

metro fare or other transportation costs. We also have a “hygiene sta-

tion,” a cart in the clinic space that holds travel size products such

deodorant, shower gel, hand sanitizer, and other products. Whenever

we meet with clients in the Clinic space, we invite them to take prod-

ucts home with them. Often, after client events are held in the REEL

Policy Clinic space, the hygiene cart is completely empty. These are

the kind of material supports that we can offer clients in addition to

our legal services.

Mutual aid also includes immaterial support. For example, a sub-

goal that I have in bringing Black youth advocates to the law school

117

Bell, supra note 63, at 460.

118

“Black mutual aid societies date back to the 1700s. Free Black Americans pooled

resources to buy farms and land, care for widows and children, and bury their

dead . . . . One of the most famous examples of mutual aid are the Black Panther Survival

Programs from the late 1960s, through which members distributed shoes, transported el-

ders to grocery stores, offered breakfasts and more.” Christine Fernando, Mutual Aid Net-

works Find Roots in Communities of Color, A

SSOCIATED

RESS

(Jan. 21, 2021), https://

apnews.com/article/immigration-coronavirus-pandemic-

7b1d14f25ab717c2a29ceafd40364b6e.

Fall 2023] Launch of a Racial Justice Clinic 183

campus is to expose them to the law school environment, give them

opportunities to sit in classrooms, and see themselves in the space.

When a couple of youth advocates commented during a meeting at

the law school that they wanted to be lawyers, I was thrilled and I

hope that their exposure to the law school helps them to visualize

themselves achieving this goal. In addition, we often meet clients

where they are, at schools or local libraries in their neighborhoods.

This provides the opportunity for the law students to get off campus

and for those who confine themselves to certain neighborhoods in the

District, it gives them an opportunity to visit other communities and

to see the places where student clients live and attend school.

I encourage students to engage in dialogical relationship with cli-

ent partners and those directly impacted by the issues of racial ine-

quality that are the focus of the REEL Policy Clinic’s work. I

encourage students to consider these stakeholders sources of knowl-

edge. This kind of epistemic shift is vital for developing students’ full

understanding of the law and its impact on the lived experiences of

people of color who are experts of their own experiences. Engaging

with stakeholders deepens students’ social analysis of the issues that

they work on. As students share their plans for advancing client goals

for the semester, I discuss the tasks that they will undertake to achieve

the client’s goals and encourage them to consider interviewing com-

munity members or other stakeholders to inform their analysis. A fi-

nal component of the REEL Policy Clinic’s approach to lawyering in a

time of retrenchment, as described below, is bravery.

V. B

RAVERY

During the REEL Policy Clinic’s orientation at the start of each

semester, I ground students in the distinction between a “safe space”

and a “brave space.”

119

I caution students that I cannot guarantee that

the clinic is a “safe space,” meaning that I can’t guarantee that they

won’t feel discomfort, pain, or shame when examining issues of racial

inequality. However, I assure them that the endeavor to analyze issues

of racial equity and to advocate on behalf of our clients to realize it is

a brave one. This of course does not refer to the literal meaning of

students’ physical safety, but to students’ comfort levels and the real-

119

Brian Arao and Kristi Clemens have written about transforming from “safe spaces”

to “brave spaces” when framing discussions about diversity and social justice. See Brian

Arao & Kristi Clemens, From Safe Spaces to Brave Spaces: A New Way to Frame Dialogue

Around Diversity and Social Justice, T

RT OF

FFECTIVE

ACILITATION

, 2013, at

135–50; Glenn Singleton & Cyndie Hays, Beginning Courageous Conversations About

Race,E

VERYDAY

NTIRACISM

: G

ETTING

EAL

BOUT

ACE IN

CHOOL

, June 2008, at

18–23.

184 CLINICAL LAW REVIEW [Vol. 30:151

ity of feelings they will inevitably experience when stepping outside of

their comfort zones. The untitled poem below beautifully captures this

sentiment:

There is no such things as a ‘safe space’—

We exist in the real world.

We all carry scars and have caused wounds.

This space

seeks to turn down the volume of the world outside, and amplify

voices that have to fight to be heard elsewhere.

This space will not be perfect.

It will not always be what we wish it to be

But

It will be our space together,

And we will work on it side by side.

120

After sharing this poem with students, we explore the definition

of “safe” which includes descriptors such as “not exposed to risk” or

“protected from danger.”

121

I then share the text of some recent anti-

CRT laws supported by conservative lawmakers that purport to pro-

tect students from feeling “discomfort” or “guilt” during classroom

discussions about historic racial inequality.

122

I also ask:

123

What reso-

nates for you when you hear “safe space” versus “brave space”?;

“What people/ideas do these spaces seek to protect?; “Where does

growth happen?”

124

I also share an assertion from Brian Arao and

Kristi Clemens’ scholarship on brave spaces, “the language of safety

contributes the replication of dominance and subordination, rather

than dismantling thereof.”

125

Further, I share an insight from Tim

Wise: “This country is never safe for people of color. Its schools are

not safe; its streets are not safe; its places of employment are not safe;

its health care system is not safe.” After grounding students in the

distinction between a safe space and a brave space, I then guide them

120

Beth Strano, Untitled Poem, F

ACING

ISTORY

& O

URSELVES

, https://

www.facinghistory.org/resource-library/untitled-poem-beth-strano (last updated April 22,

2022).

121

ERRIAM

-W

EBSTER ONLINE DICTIONARY

, safety: (1) the condition of being safe

from undergoing or causing hurt, injury, or loss. https://www.merriam-webster.com/diction-

ary/safety (last visited Sept. 5, 2023).

122

For example, many of the state and local laws and restrictions seeking to deny discus-

sions of race or racism in schools replicate the language of Executive Order 13950, issued

by former President Trump, which excluded from federal contracts any trainings deemed

to be “divisive” or that included “divisive concepts.” The Order vaguely defined “divisive”

as virtually anything related to racial equality, diversity, or inclusion. See Combatting Race

and Sex Stereotyping,” Exec. Order No. 13950, 3 C.F.R. 433 (2020) [rescinded].

123

The inaugural teaching fellow of the REEL Policy Clinic, Nikola Nable-Juris, devel-

oped the original lesson plan for this session, some elements of which I share here.

124

See Arao, supra note 119; see also Singleton, supra note 119.

125

See Arao, supra note 119, at 140.

Fall 2023] Launch of a Racial Justice Clinic 185

as they formulate their own “community norms” to govern how they

will engage in conversations, interactions with clients and partners,

and otherwise show up in the work to advance racial justice in educa-

tion. This gives them a sense of ownership—and accountability. They

have a stake in the environment that they create and how they show

up for their clients and partners. It also manages their expectations—

they learn that racial justice lawyering work is impossible without ex-

periencing discomfort, lack of closure, confusion, and even shame or

emotional pain. Yet, every semester, after engaging this in this exer-

cise, students always choose to proceed with the work—with bravery.

ONCLUSION

“Hope is justified. Time and again, Americans of all races, colors,

and creeds have shown themselves to be willing to fight for equality

in the schoolhouse, at the lunch counter, and on the public bus. They

are proof positive that while the movement toward justice and equal-

ity is slow, it is also inexorable.”

126

We are facing new battles against racial injustice in our nation

today that require new tools to address them. Preparing clinic students

to engage in social analysis, dialogical relationships with clients, radi-

cal imagining, and bravery can equip them to advance racial justice in

moments of racial retrenchment. Charles Hamilton Houston, the

founder of LDF and former vice-dean of Howard Law remarked that

the lawyer can be either a parasite or a social engineer.

127

The work of

a social engineer is long and difficult. Educating social engineers is

also difficult work. It is also a brave endeavor. What fuels this commit-

ment is hope. I believe that hope and bravery operate in concert.

Somedays, I am short on both, but I agree with William Quigley’s ob-

servation of hope and social justice lawyering:

Hope is also crucial to this work. Those who want to continue the

unjust status quo spend lots of time trying to convince the rest of us

that change is impossible. Challenging injustice is hopeless they say.

Because the merchants of the status quo are constantly selling us

hopelessness and diversions, we must actively seek out hope. When

we find the hope, we must drink deeply of its energy and stay con-

nected to that source. When hope is alive, change is possible.

128

126

UCKER

C. J

OHNSON

HILDREN OF THE

REAM

: W

CHOOL

NTEGRATION

ORKS

1, 255 (2019).

127

See Roger A. Fairfax Jr., Wielding the Double-Edge Sword: Charles Hamilton Hous-

ton and Judicial Activism in the Age of Legal Realism, 14 H

ARV

. B

LACKLETTER

L. J. 17, 26

(1998). Further noting that “a lawyer as a social engineer is the ‘mouthpiece of the weak

and a sentinel guarding against wrong’ . . . a social engineer ‘ought to use the law as an

instrument to achieve social justice and full, equal civil rights for all Americans.’” Id.

128

Quigley, supra note 29, at 27.

186 CLINICAL LAW REVIEW [Vol. 30:151

I am not sure what the outcome of this work will be. I’m not sure

what the history books will say about how racial justice advocates met

this moment of retrenchment. I do hold the hope that we who believe

in racial justice will win. I know that the clinicians who preceded me

believed in the potential of the law to advance justice and they helped

to make my work possible by imaging the world I now inhabit. There-

fore, holding onto this hope, let us all proceed with the bravery of

lions.

TEAMWORK MAKES THE DREAM WORK:

IMPROVING COMMUNITY LAWYERING

THROUGH A POLICY AND

TRANSACTIONAL LAW

CLINIC PARTNERSHIP

ENNIFER

As cross-clinic partnerships become more common in law schools,

the synergies between policy and transactional law clinics merit in-

creased consideration as a collaborative model that can provide holistic

legal support to underserved communities. This Essay uses the illustra-

tion of one such partnership at Georgetown University Law Center to

demonstrate a model of inter-clinic collaboration that advances racial

equity, helps communities of color shift power back to their residents,

and provides an interdisciplinary approach to meet more legal needs

across a longer timeline. Critically, this integrated, community-centered

approach can also enhance the students’ learning outcomes in clinics by

exposing them to different types of lawyering and collaboration. The

examples of cross-clinic partnership discussed in this Essay reinforce

the need for comprehensive legal services in communities of color and

other historically underrepresented communities, where there may be a

need for legal and policy support beyond the resources of a single

clinical program.

NTRODUCTION

Two years ago, students enrolled in my Policy Clinic reached out

to a local civic association to better understand how negotiations for

community benefits agreements (“CBAs”) could be made more equi-

table in Washington, D.C.

In the city’s rapidly gentrifying majority-

* Staff Attorney and Adjunct Professor of Law, Harrison Institute for Public Law,

Georgetown University Law Center. This Essay is part of the Promoting Justice: Advanc-

ing Racial Equity Through Student Practice in Legal Clinics Symposium at Georgetown

University Law Center. My deepest appreciation and gratitude to Chaz Brooks, Julian Hill,

Sara Hoverter, and Bob Stumberg for their thoughtful feedback. Special thanks to Charity

Fort and Elly Kugler for their conversations and wisdom, and to Elisabeth Wickeri, Joey

Lee, and Karen Newirth for modeling patience in teaching and mentorship.

Community benefits agreements (“CBA”) are contracts negotiated between private

developers and residents impacted by a development project. In a CBA, developers agree

to provide amenities and resources to the community above and beyond what is legally

required. In exchange, local organizations, which negotiate on behalf of impacted re-

sidents, agree to provide community support for the development project. See generally

187

188 CLINICAL LAW REVIEW [Vol. 30:187

Black neighborhoods located east of the Anacostia River, residents at

risk of physical and economic displacement must compete in time, en-

ergy, and other resources with deep-pocketed private developers.

exchange for an interview with my students to discuss the civic associ-

ation’s experience negotiating CBAs, a representative asked that we

first agree to provide them with a litany of pro bono legal services –

much of it outside the scope of our policy clinic’s expertise. As I ex-

plained, asking a policy lawyer to review and revise their organiza-

tional bylaws was much like asking a cardiologist to conduct brain

surgery, or your plumber to be your electrician. The civic association

needed a transactional lawyer with experience in nonprofit entity for-

mation. As it happened, I had a referral in mind.

Like so many great partnerships – peanut butter and jelly, Sher-

lock and Watson – cross-clinic partnerships between transactional and

policy clinics seem intuitive in hindsight, particularly given the in-

crease in models of cross-clinic collaborations.

However, while inter

and intra-clinic partnerships have existed both in practice and in the

literature, collaborations between policy and transactional law clinics

have not been extensively explored. As our example at Georgetown

University Law Center illustrates, there are inherent similarities and

common objectives between many transactional and policy clinics

that, when paired, become mutually reinforcing, not merely

complementary.

Specifically, I reflect on my experience teaching in the Harrison

Institute for Public Law’s Policy Clinic (the “Policy Clinic”); our grow-

ing collaboration with a sister clinic, the Social Enterprise & Non-

profit Law Clinic (the “SENLC”); and our joint efforts to support

local communities that are battling environmental injustice, redlining,

and the legacy of generations of systemic racism. Part I describes our

Patricia E. Salkin & Amy Lavine, Community Benefits Agreements and Comprehensive

Planning: Balancing Community Empowerment and the Police Power, 18 J.L. & P

’

157

(2009).

Katherine Shaver, D.C. Has the Highest ‘Intensity’ of Gentrification of any U.S. City,

Study Says, W

ASH

. P

OST

, Mar. 19, 2019, https://www.washingtonpost.com/transportation/

2019/03/19/study-dc-has-had-highest-intensity-gentrification-any-us-city/.

One recent example of cross-clinic collaboration is the Transactional Law Clinic Col-

laborative, which formed during the COVID-19 pandemic and provides legal assistance to

small business and nonprofit clients in the D.C., Maryland, and Virginia area. T

RANSAC-

TIONAL

LINIC

OLLABORATIVE

, https://www.wcl.american.edu/academics/experien-

tialedu/clinical/theclinics/elc/tlcc/ (last visited Aug. 23, 2023). In another example, the

Education Defense and Justice for Youth program at the University of California, Berke-

ley School of Law combines the resources of two clinics (Youth Defender Clinic and Edu-

cation Justice Clinic) to provide holistic support and representation to clients at the

intersection of the juvenile justice and education systems. E

DUCATION

EFENSE

& J

USTICE

FOR

OUTH

, https://ebclc.org/about/the-work/education-defense-justice-for-youth/ (last

visited Aug. 23, 2023).

Fall 2023] Teamwork Makes the Dream Work 189

collaboration as one example of how a policy clinic and a transactional

law clinic can ally to support a common community client. Part II

elaborates on the positive impacts of a transactional law and policy

clinic partnership for clients and communities, particularly as they ex-

plore opportunities to reclaim their political and economic power.

Similarly, Part III explores the benefits of such partnerships for clinic

students. And, as we frequently remind our students, no honest self-

reflection would be complete without constructive feedback. There-

fore, in Part IV, I identify and address some challenges and lessons

learned from our collaboration thus far, concluding with some per-

sonal learning goals I have developed for our supervision going

forward.

I. A

XAMPLE OF

ROSS

-C

LINIC

OLLABORATION IN

OMMUNITY

AWYERING

Our experience with the civic association was the first, albeit

brief, example of coordinating on projects or clients between the

SENLC and the Policy Clinic. In that first instance, our cross-pollina-

tion of resources was limited to a relatively straightforward client re-

ferral. Later, we organized a joint meeting of our students, who

together reviewed the basics of affordable housing and community de-

velopment. This conversation increased their collective understanding

of the policy contexts that our respective clients were grappling with.

The next semester, however, provided our two clinics with an oppor-

tunity to work in tandem with a client – the Resilience Hub Commu-

nity Coalition (“RHCC”) – that required both long-term policy

support as well as short-term guidance in transactional law. The

RHCC was particularly well-suited for an inter-clinic collaboration

between the policy and transactional law clinics. It benefited from a

preexisting, longstanding relationship with clinic staff; required the

disparate skill sets of our two clinics; and was structurally organized to

maximize community ownership.

The RHCC is comprised of a group of residents who live in Ward

7, a predominantly Black neighborhood situated east of the Anacostia

River in D.C.

As is the case with so many of our policy projects in the

Policy Clinic, where relationships with clients and collaborators can

develop and mature over the span of years rather than semesters, I

had been working with members of the community coalition for over

five years. The RHCC formed in 2017 to provide recommendations to

’

TOF

NERGY

& E

’

, C

LIMATE

EADY

DC: T

ISTRICT OF

OLUMBIA

’

LAN TO

DAPT TO A

HANGING

NVIRONMENT

(2016), https://doee.dc.gov/sites/default/

files/dc/sites/ddoe/service_content/attachments/CRDC-Report-FINAL-Web.pdf.

190 CLINICAL LAW REVIEW [Vol. 30:187

D.C. government agencies on implementing the city’s climate plans.

In the ensuing years, the RHCC’s membership rotated as its focus

shifted from climate resilience to creating a neighborhood “resilience

hub,” or a community space that can provide year-round, wrap-

around resources to the community. Resilience hubs can deploy emer-

gency operations and resources during disruptive states, such as a heat

wave, flood, or public safety incident.

Most importantly, the pillars of

a resilience hub center the principle of community ownership.

Resili-

ence hubs are tailored to the individual needs of each community,

with its services and other resources determined by local residents

who are the most attuned to neighborhood priorities.

Five years after the start of a convening process facilitated by the

D.C.’s environmental agency and the Policy Clinic, the members of

the RHCC wanted to formalize their coalition through the formation

of a nonprofit that would be able to operate independently of its insti-

tutional conveners. Given the emphasis on community ownership, this

was a natural next step. The Policy Clinic had provided research sup-

port and guidance on strategies for accruing political buy-in and bring-

ing the Ward 7 resilience hub to scale across the city. However, to

secure funding and recruit new members, the RHCC needed a cohe-

sive legal identity.

The SENLC, which focuses on social enterprise and nonprofit

formation, governance, and ongoing legal support, helped fill a critical

gap in the Policy Clinic’s expertise. The members of the RHCC sub-

mitted an intake form in the summer. By the fall, the SENLC had

assembled a team of students – supervised by a clinical teaching fellow

– who met periodically with the members of the RHCC to understand

the coalition’s goals in entity formation and to provide research up-

dates to help the group determine the type of entity they wanted to

form. The roles of the respective clinics were memorialized in separate

written agreements. The SENLC provided the RHCC with a letter of

The RHCC emerged from an initial D.C. government community engagement pro-

cess called the Equity Advisory Group, which was tasked with proposing recommendations

to help advance D.C.’s climate solutions. S

KEO

OLUTIONS

& G

. C

LIMATE

., R

EC-

OMMENDATIONS FROM THE

QUITY

DVISORY

ROUP IN

NE W

ARD

7 (2018), https://

www.georgetownclimate.org/files/report/eag_recommendations_web_8.20.18.pdf.

ESILIENCE

MTY

. C

OMM

., W

ARD

7 R

ESILIENCE

ROPOSAL

(2020), https:/

/faunteroycenter.org/wp-content/uploads/2021/02/RHCC-Report-Year-1.pdf; Resilience

Hub Implementation, F

AUNTEROY

MTY

. E

NRICHMENT

., https://faunteroycenter.org/

resilience-hub-implementation/ (last visited Aug. 23, 2023); U

. S

USTAINABILITY

IREC-

TOR

’

ETWORK

ESILIENCE

NCUBATOR

@FH F

AUNTEROY

: R

ESILIENCE

ROGRESS

EPORT

(2022), http://resilience-hub.org/wp-content/uploads/2022/11/USDN_Progress-_

Faunteroy_November22-3.pdf

Five Foundational Areas, R

ESILIENCE

UBS

, http://resilience-hub.org/core-compo-

nents/ (last visited Aug. 23, 2023).

Id.

Fall 2023] Teamwork Makes the Dream Work 191

engagement that clarified the clinic’s mission and the unique nature of

the students’ role in providing legal counsel to the client, in addition

to including routine provisions around confidentiality and termination

of the relationship. Similarly, the role of the the Policy Clinic was cap-

tured in a Memorandum of Understanding (an “MOU”) with the

RHCC. The MOU clarified roles, timelines, and general deliverables

that would help further the RHCC’s mission.

By the end of the semester, students in the SENLC had provided

the RHCC with a recommendation for forming a nonprofit corpora-

tion that qualified for tax-exemption under 501(c)(3) of the Internal

Revenue Code, drafted sample language for bylaws, and itemized the

steps to file Articles of Incorporation in the District of Columbia.

II. P

OSITIVE

MPACTS OF

OLLABORATION FOR

LIENTS AND

OMMUNITIES

In the examples above, the SENLC and Policy Clinic benefited

from sharing a common client base in the D.C. community: residents

who share not only geographic proximity, but, for many, a common

mission to pursue housing, environment, and economic justice. Like

many grassroots organizations, our D.C. client required an interdisci-

plinary focus that exceeded the expertise of the SENLC or Policy

Clinic alone.

Collaboration between law school clinics can bring a multi-pro-

nged approach to supporting community clients. An interdisciplinary

legal team can be particularly useful for building capacity to address

systemic inequality by shifting power back to disenfranchised re-

sidents and helping organizations reclaim self-determination in how

public policies are adopted and implemented in their communities.

Indeed, the concept of community lawyering is inherently a collabora-

tive exercise: practitioners who incorporate a community lawyering

approach frequently bring a range of subject matter expertise (e.g.,

environment, workers’ rights, community economic development, ad-

ministrative law) and draw on different practice areas and skills sets

(e.g., litigation, legislative advocacy).

Accordingly, community cli-

Alexi Nunn Freeman & Jim Freeman, It’s About Power, Not Policy: Movement Law-

yering for Large-Scale Social Change, 23 C

LIN

. L. R

. 147, 150 (2016) (recognizing that

those who self-identify as movement lawyers or community lawyers can play an important

role in helping grassroots and community organizers shift power, “exercise self-determina-

tion and ensure that all public policies reflect their particular needs and concerns”).

Marcy L. Karin & Robin R. Runge, Toward Integrated Law Clinics that Train Social

Change Advocates, 17 C

LIN

. L. R

. 563, 567 (2011) (discussing how community lawyering

frequently employs multiple legal strategies simultaneously). See generally Susan R. Jones,

Promoting Social and Economic Justice Through Interdisciplinary Work in Transactional

Law, 14 W

ASH

. U. J.L. & P

’

249 (2004) (describing examples of interdisciplinary col-

192 CLINICAL LAW REVIEW [Vol. 30:187

ents receive more holistic representation when clinics are able to

cross-pollinate resources and bring together diverse skill sets. In our

case, the Policy Clinic and the SENLC were able to harness our famili-

arity with organizational clients; technical expertise in different areas

of law and policy; and prioritization of institutional continuity.

A. Experience with Organizational Clients

By association, policy and transactional law clinics that represent

organizational clients – many of them nonprofit organizations or as-

piring nonprofits – also help further the missions and values of those

organizations, which can focus on issues as varied (and interdiscipli-

nary) as housing, environment, and public health.

In doing so, the

clinics can contribute to the advancement of racial and social justice

movements that form the foundation of their clients’ organizational

mission and values.

While transactional law clinics have historically

been perceived as lying at the margins of community lawyering, they

are in fact rooted in community economic development and can be

well-aligned to represent under-resourced and under-represented in-

dividuals and organizations.

For example, the SENLC at Ge-

orgetown Law represents organizational clients that pursue social

justice goals. Many of SENLC’s clients are social entrepreneurs or

nonprofits (or groups seeking nonprofit status), based in communities

of color in Washington, D.C., and have a race and economic justice-

focused mission. Similarly, a vast number of the Policy Clinic’s organi-

zational clients are local and share the common objective of shaping

municipal or state-level policy to benefit people living on the

frontlines of economic and housing displacement, climate change, and

laboration by small business clinical programs); Antoinette Sedillo Lopez, Learning

Through Service in a Clinical Setting: The Effect of Specialization on Social Justice and

Skills Training, 7 C

LIN

. L. R

. 307 (2001) (providing examples of how community law-

yering in underrepresented communities can include providing community education

materials and resources, not just legal representation).

Hina Shah, Notes from the Field, the Role of the Lawyer in Grassroots Policy Advo-

cacy, 21 C

LIN

. L. R

. 393, 412-421 (2015) (describing the role of lawyers representing

organizational clients in grassroots movements).

See generally Susan Carle & Scott L. Cummings, A Reflection on the Ethics of Move-

ment Lawyering, 31 G

. J. L

EGAL

THICS

447 (2018).

Alina Ball, Transactional Community Lawyering, 94 T

EMP

. L. R

. 397, 401 (2022)

(“Progressive legal scholarship rarely acknowledges transactional lawyers, and instead fo-

cuses on litigators and policy advocates addressing acute racial and social injustices . . . .

Transactional lawyers utilizing their expertise to structure transactions and draft deal docu-

ments to facilitate economic activity could have a significant positive impact on low-income

communities because transactional lawyers possess the technical skills to leverage consoli-

dated capital resources and support microbusinesses owned by underrepresented entrepre-

neurs.”). See also Patience Crowder, Design Principles of Transactional Law Clinics, 19

EWIS

& C

LARK

L. R

. 413, 419 (2016).

Fall 2023] Teamwork Makes the Dream Work 193

public health crises. Through representing movement-oriented organi-

zational clients, policy and transactional law clinics working in tandem

can also jointly support their social justice movements.

Typical of many policy clinics that represent clients who seek to

shape some aspect of public policy, Georgetown Law’s Policy Clinic

almost exclusively represents organizational rather than individual cli-

ents. Increasingly, the Policy Clinic has represented not only an indi-

vidual organization, but also multiple organizations united by a

common mission and policy goal. Among its clients, the Policy Clinic

has represented coalitions of human rights organizations advocating

for improving labor standards in cities that host the FIFA World Cup,

as well as a consortium of universities that seek to harness their collec-

tive purchasing power to promote better conditions for meatpacking

workers.

Representing organizational clients is also typical of transactional

law clinics. Such clinics provide technical expertise to help manage

business entities, such as drafting deal documents or structuring trans-

actions.

Many clients seek transactional expertise not only to im-

prove their organizational outcomes, but also to further a social justice

mission that improves the quality of life for an entire community.

both examples, the clients look to the clinic for strategic direction to

help them reach a particular goal, such as entity formation or pursuing

a policy objective.

B. Diverse Legal Skills for Holistic Client Representation

Our collaboration at Georgetown Law to support the RHCC also

provides an example of how clinics working in collaboration can holis-

tically support the client by providing expertise at different but key

stages of the life cycle of the client’s legal needs. Policy and transac-

tional law clinics can work in coordination – telescoping in and out –

by first identifying prospective clients, then providing technical gui-

dance to help the organization form a legal entity, and ultimately ena-

bling the organization to more efficiently advance its policy strategy.

Policy clinics that focus on community development often have

broad, if not also deep, networks of organizational contacts within

Our Work, H

ARRISON

NST

., https://www.law.georgetown.edu/experiential-learning/

clinics/our-clinics/the-policy-clinic-climate-health-food-human-rights-and-trade-harrison-

institute/climate/ (last visited August 28, 2023).

See Ball, supra note 13, at 432-433 (discussing how social enterprise lawyering is a

particularly well-suited model for community lawyering, given the mission-oriented focus

of many social enterprises, such as supporting the solidarity economy movement or sus-

tainable development goals).

Alicia E. Plerhoples & Amanda M. Spratley, Engaging Outside Counsel in Transac-

tional Law Clinics, 20 C

LIN

. L. R

. 379, 383-388 (2014).

194 CLINICAL LAW REVIEW [Vol. 30:187

communities.

In the process of helping to strengthen community or

issue-based coalitions, policy clinics interact with organizations situ-

ated across the full landscape of a political power map. For a policy

clinic, the cultivation of this network can be significant for building

relationships and strengthening the political power of the coalition

while helping to identify prospective clients who seek not only policy

guidance, but also expertise in transactional law. In turn, transactional

law clinics can provide the organizational client with guidance on en-

tity formation and governance. Having achieved legal status, organiza-

tions can adopt a more proactive role in pursuing their theories of

change for policy advocacy. These include applying for funding and

harnessing other critical resources – objectives that a policy clinic can

then help the client to advance.

The Policy Clinic spent five years

building a relationship with the residents of Ward 7 and members of

the RHCC, who then sought the counsel of the SENLC for forming a

501(c)(3) tax-exempt nonprofit. As the RHCC continues to work with

the Policy Clinic and D.C. government to operationalize resilience

hubs in the city, it does so as a cohesive unit with a clear governance

structure and identity, rather than as a disparate group of individual

residents.

To put it another way, a policy-transactional partnership allows

clients to provide assistance holistically and at different scales: trans-

actional law clinics can provide expertise on discrete legal issues, while

policy clinics can provide analyses on longer-term legislative and ad-

vocacy strategies to move a particular policy objective. In particular,

transactional law clinics that focus on building social enterprise are

able to help groups of community members develop a cohesive legal

identity, which in turn provides the entity with the legal status re-

quired to further organize, advocate, and critically fundraise.

Policy

clinics can then harness this self-determination and help community

clients refine their legal strategy to achieve policy outcomes, such as

advocating for legislation in city council. In cementing the organiza-

tion’s ownership of its own brand and legal identity, policy and trans-

actional law clinics help pave the way for communities of color and

historically underrepresented groups to realize the core values of

strengthening community power and self-determination.

C. Institutional Continuity

Relatedly, cross-clinic collaborations with the same law school

See Shah, supra note 11, at 414.

Carle & Cummings, supra note 12.

Alicia E. Plerhoples, Representing Social Enterprise, 20 C

LIN

. L. R

. 215, 218-223

(2013).

Fall 2023] Teamwork Makes the Dream Work 195

can also bring much needed institutional continuity to both the client

and the wider community. In policy lawyering, especially at the local

level, a common focal point is relationship-building with a variety of

stakeholders, the most important of which are the residents and the

organizations that have been designated to represent their interests.

The exercise of trust-building with community stakeholders is time-

consuming and may be fraught with personal and coalition politics. In

addition, in communities of color and other historically disinvested

neighborhoods, mistrust in government policy and the institutions that

appear to perpetuate them – including academic institutions – are

common.

In Washington, D.C., the residents of Ward 7 have a cautious and

brittle relationship with their local government. For effective legal

representation, it is critical for our clinics to bridge the trust deficit

with community stakeholders and to demonstrate solidarity with their

core values and mission. As with most individuals not affiliated with

the university, Ward 7 residents and other stakeholders do not always

differentiate between different clinics within the same law school. In-

ter-clinic collaboration is therefore an opportunity to provide a united

front to meet multiple needs of the same client, advancing the goal of

building trust and credibility in the community, and demonstrating

steadfastness and constancy to the long-term goal of reversing harmful

impacts of systemic racism. Indeed, the Policy Clinic’s collaboration

with the SENLC to represent the residents of Ward 7 was seen by

community members not as individual efforts by two separate clinics,

but rather as a streamlined collaboration by the same institution. They

saw their lawyers as part of a single public interest law firm.

III. P

OSITIVE

MPACTS OF

OLLABORATION FOR

TUDENTS

The features of a policy-transactional clinic collaboration that can

strengthen the attorney-client relationship can also improve learning

outcomes for clinic students. Our cross-clinic collaboration at Ge-

orgetown Law not only helped to meet the diverse legal needs of our

community clients, but also provided opportunities to maximize the

students’ exposure to an array of legal skills, clients, and practice envi-

ronments. Community lawyering is a deliberative approach that takes

time: time to develop and maintain relationships with clients, and time

to collectively reach intermediary stages of goals, objectives, and other

milestones.

While an academic semester or even two may not pro-

See generally Shah, supra note 11; Carle & Cummings, supra note 12. See also Chai

Feldblum, The Art of Legislative Lawyering and the Six Circles Theory of Advocacy, 34

EORGE

L. R

. 785, 793 (2003).

Karen Tokarz, Nancy Cook, Susan Brooks & Brenda Bratton Blom, Conversations

196 CLINICAL LAW REVIEW [Vol. 30:187

vide students with enough exposure to appreciate the full complexity

of community lawyering, clinical partnerships can double those oppor-

tunities and broaden the quality of the students’ interactions with cli-

ents in formative ways. Through cross-clinic collaborations, students

have the benefit of being exposed to concurrent and parallel stages of

the attorney-client relationship. For example, our students helped

drive the process of helping a nascent organization create a legal en-

tity, while also witnessing that same organization hone a long-term

policy strategy to bring their resilience hub to scale across the city.

Through a combination of observation and applied, hands-on training,

students in cross-clinic partnerships are able to see a fuller picture of

community lawyering and the many different faces of attorney-client

interactions.

A. Create Opportunities for Multicultural Learning

Law schools are not diverse institutions. Enrollment data and stu-

dent experiences continue to indicate that law schools are more likely

to be centers of homogeneity rather than hubs of diversity.

Further,

despite our efforts to broaden the diversity of our students in our

clinical programs, clinics remain part of the “white space” of law

school.

When the clients and collaborators that we work with come

from more diverse spaces, it is all the more imperative that our stu-

dents appreciate and understand the community contexts in which

they work.

One of the benefits of experiential learning in clinics is the oppor-

tunity for students to hone their cultural competency skills and to re-

flect on the ways that individual experiences play a role in the

attorney-client relationship.

Students traditionally spend the first

year of law school in doctrinal courses that are case law-intensive,

with comparatively less scrutiny on cultural or identity-based charac-

teristics like race or gender that shape personal experiences with the

law.

As cultural competency is increasingly recognized as a core fea-

on “Community Lawyering”: The Newest (Oldest) Wave in Clinical Legal Education, 28

ASH

. U. J.L. & P

’

. 359, 364 (2008) (reflecting that “community lawyering is an ap-

proach to the practice of law and to clinical legal education that centers on building and

sustaining relationships with clients, over time, in context, as part of and in conjunction

with communities. It incorporates respect for clients that empowers them and assists them

in the larger economic, political, and social contexts of their lives, beyond their immediate

legal problems.”).

Anne D. Gordon, Cleaning Up Our Own Houses: Creating Anti-Racist Clinical Pro-

grams, 29 C

LIN

. L. R

. 49, 53-71 (2022).

Id.

See generally Susan Bryant, The Five Habits: Building Cross-Cultural Competence in

Lawyers, 8 C

LIN

. L. R

. 33 (2001).

See generally Vernellia R. Randall, Teaching Diversity Skills in Law School, 54 S

Fall 2023] Teamwork Makes the Dream Work 197

ture of legal practice, clinic environments – particularly those that em-

phasize interdisciplinary teaching – can be an opportunity for students

to grow cross-cultural knowledge, challenge existing assumptions

about the role of race and the law, and exercise problem-solving skills

in an applied, rather than theoretical, setting.

Cross-clinic partnerships can also take students out of the silos of

individual clinics and place them in different environments, forcing

them to interact with their clients in varying roles. For example, when

presenting tradeoffs in forming one type of nonprofit organization

over another, students might play a more directive role and call upon

their subject matter expertise. In a separate meeting with the same

organizational or coalition client, students might be asked to facilitate

discussions among a group of individuals as they deliberate an advo-

cacy strategy. In playing both advisory and facilitation roles to their

clients’ legal needs, students have the opportunity to observe the com-

plexity of interests and expertise of their clients, potentially helping to

disabuse them of the savior mentality in their pro-bono work.

these varied settings, students also have the opportunity to confront

and displace certain assumptions about their clients, such as assump-

tions about what type of person typically becomes an entrepreneur, or

beliefs that communities that share similarities in race or other identi-

ties are monolithic and act with consensus. Importantly, in these dif-

ferent spaces, students will also have the opportunity to think critically

about and reconcile their own lived experiences with those of their

clients, particularly if the student does not share a similar cultural or

racial background as their client. These varied experiences may invite

opportunities for important conversations – if not also some discom-

fort – about their lawyering role, such as how to demonstrate their

legal skills while also communicating effectively and respectfully, or

how to make mistakes and recover and learn from them.

B. Increase Student Exposure to Different Types of Lawyering and

Collaboration

Whether drawing on policy or transactional legal skills, students

in a cross-clinic collaboration will be exposed to not only a range of

client interactions, but also professionals from a range of back-

grounds. For one, students will have the opportunity to work with and

OUIS

U. L.J. 795 (2010).

ABA S

ECTION ON

EGAL

DUCATION AND

DMISSIONS TO THE

, ABA S

TAN-

DARDS AND

ULES OF

ROCEDURE FOR

PPROVAL OF

CHOOLS

, S

TANDARD

303(c)

(2022) (stating that law schools “shall provide education to law students on bias, cross-

cultural competency, and racism”).

Gordon, supra note 22, at 70.

198 CLINICAL LAW REVIEW [Vol. 30:187

observe supervisors from other clinics. In our clinic partnership, stu-

dents worked with attorney supervisors who represented a diversity of

professional experiences and research interests: careers working in

law firms and nonprofits; experiences ranging from international

human rights to political campaigns, environmental law to nonprofit

housing finance; and skills from community organizing to launching

private equity funds. Drawing on and reflecting each of these unique

experiences, our joint supervision team inevitably modeled different

types of lawyering and professional skills to the students. Equally im-

portant, students were able to observe supervisors draw on their own

personal experiences – including racial and cultural identities – in cli-

ent interactions.

Additionally, students who work in a cross-clinic partnership,

particularly those focused on community lawyering, also have the op-

portunity to observe professionals working across a spectrum of disci-

plines.

In conducting legal analysis on an array of community

development matters, our students regularly collaborate with urban

planners, government employees, elected officials, community or-

ganizers, labor unions, and even scientists. Through this interdiscipli-

nary approach, students are exposed to a wider array of strategies to

serve community clients. This approach reinforces the idea that, in or-

der for frontline and historically resourced communities to be made

whole, its members benefit most from holistic support that encom-

passes both discrete technical assistance as well as long-term policy

advocacy.

C. Interact with Each Other and Recognize Common Challenges

Compared to other classes in law school, clinics can be a unique

experience for students due to the collaborative nature of the work.

United by a common client and purpose, students can cultivate their

teamwork and lateral management skills in clinic, which frequently

requires them to work together in nearly every aspect of lawyering,

from client management to developing work products. Joining student

teams from multiple clinics only enhances the already collaborative

nature of clinic work, offering students a window to how other stu-

dents, not just supervisors, approach the same client from different

perspectives and skillsets.

Working with students in other clinics can help build community

among the students, who might find solidarity in grappling with com-

mon challenges in the attorney-client relationship. Cross-clinic collab-

Tokarz et al., supra note 21, at 379-380 (noting the frequency of interdisciplinary

collaborations in community lawyering clinics).

Fall 2023] Teamwork Makes the Dream Work 199

oration enables the students to reflect more holistically about values-

based questions such as whether they are working for a single organi-

zational client or, as part of a broader social justice mission, whether

they are also accountable to a larger community. The collaborative

nature of client representation can also invite students to relate to and

learn from each another in areas of client management, such as ad-

dressing interpersonal conflicts among clients or translating vague cli-

ent goals into a coherent legal strategy. Finally, when students work

across clinics, they have the opportunity to learn from peers who they

may not otherwise interact with in law school. Without the pressure of

competing on the same grading curve, students from different clinics

may also be more open to sharing their insecurities and learning from

one another in case rounds.

IV. L

ESSONS

EARNED

Whether helping clients to form a social enterprise or hone a leg-

islative strategy, community lawyers may often find themselves alter-

nating between various roles or partnering with a deep roster of

subject matter experts. Community lawyering is a collaborative ap-

proach, where lawyers can play an important but oftentimes secon-

dary role in helping community stakeholders to shift power and

realize greater self-determination in the outcome of public policies.

Accordingly, community lawyers may often be required to share, if

not cede, influence over legal strategy to community clients. Further,

the emphasis on collaboration in community lawyering applies not

only to the attorney-client relationship, but also to the broader legal

team as well. Community lawyering requires different types of skill-

sets and a collective fluency in a range of practice areas, including

transactional work, policy, litigation, and community economic devel-

opment.

Finally, the interdisciplinary nature of community goals

means that community lawyers may themselves share the table with

professionals from other disciplines as varied as public health to real

estate development.

Within this context, it is imperative that students in a cross-clinic

partnership that supports community clients have clarity on the full

scope of their role as student attorneys. However, the risk of role am-

Freeman & Freeman, supra note 9, at 150-151 (discussing how the focus on helping

clients achieve self-determination is one way to build power in low-income, communities of

color, and can address the levers of deeply entrenched systemic injustice and promote ra-

cial equity).

Jones, supra note 10, at 313.

Id. See also Dina Schlossberg, An Examination of Transactional Law Clinics and

Interdisciplinary Education, 11 W

ASH

. U. J.L. & P

’

195, 201 (2003) (describing the

interdisciplinary nature of transactional legal practice).

200 CLINICAL LAW REVIEW [Vol. 30:187

biguity for students is high. Some of the role confusion is universal

and a function of working in a hybrid academic and law firm setting.

However, some of the confusion may also be amplified by the unique

nature of policy and transactional law. It is therefore particularly im-

perative that students have multiple opportunities to orient their rela-

tionship with the client to alleviate any role conflicts and effectively

represent their clients.

A. Challenges

1. Universal Confusion about Role as Clinic Students

For clinic students, some of steepest points along the learning

curve have to do with reconciling their expectations for what it means

to work in a law school clinic and the reality of working for clients in a

real-world setting.

At the start of the semester, students may expect

to receive directive supervision, work within a closed universe of facts,

and be able to accurately predict the stages and timeline of their work.

In reality, students may be asked to adjust to non-directive supervi-

sion, conduct their own fact-finding research to fill in information

gaps, and work with highly unpredictable clients where strategies and

even decisions may be fluid and evolving.

At the center of this conflict is the challenge of distinguishing be-

tween the roles of a student and student attorney. In the former role,

students are primarily in learning mode and receive – rather than seek

out – information that informs their legal analysis.

For example,

whether for an exam or a journal writing competition, students are

accustomed to being provided a fact pattern, or a defined list of laws

and court opinions, to inform their analysis. Additionally, for many

students, the clearest and most tangible indicator of success are their

grades, which frequently reflect legal writing and analysis that follow a

prescribed formula taught in a first-year legal writing course. The

practice of working within a contained system of facts that leads to a

discrete grade at the end of the learning process can encourage stu-

dents to think of their work in purely binary terms, that their legal

analysis is either correct or incorrect. Importantly, the expectation of

being either right or wrong invites dependence on the instructor to be

the sole arbiter of the quality of student performance, leading to the

expectation of an ask-and-answer, directive style of supervision.

By comparison, when representing real-world clients, clinic stu-

dents are no longer constrained to a closed universe of facts that one

See generally Wallace J. Mlyniec, Where to Begin? Training New Teachers in the Art

of Clinical Pedagogy, 18 C

LIN

. L. R

. 505 (2012).

Id.

Fall 2023] Teamwork Makes the Dream Work 201

might see on an exam or essay prompt. Instead, clinic students may be

required to hone an unfamiliar skillset, such as conducting fact-finding

interviews, or adopting an interdisciplinary approach to learning new

issues or areas of law (e.g., understanding basic principles of urban

planning for a community development project). Complicating mat-

ters, clients are also operating in a fluid environment, making deci-

sions based on evolving current events, resources, and stakeholder

influence. The confluence of these factors means that not only can

clinic work be unpredictable (unlike a course syllabus), but also that

supervisors may need to adopt non-directive approaches to supervi-

sion that emphasize self-reflection and independently arriving at one’s

own answers and conclusions.

2. Unique Features of Policy and Transactional Law Clinics that

Can Exacerbate Role Confusion

The relatively nebulous nature of policy and transactional law can

exacerbate latent role confusion in clinic students. Whether con-

ducting a legislative campaign or advocating with grassroots organiza-

tions, policy lawyers wear many hats. As Professor Chai Feldblum

once dissected, policy lawyers play at least six different roles: strate-

gist, lobbyist, legislative lawyer, policy researcher, outreach strategist,

and communications director.

Each of these roles, in turn, requires

unique skill sets and rules of conduct; there is no equivalent of a Fed-

eral Rules of Evidence to help guide or define expectations. Accord-

ingly, for many students new to the concept of policy lawyering,

working in a clinic that advises clients on policy can feel intangible and

lack clear rules of engagement.

As noted above, policy clients also tend to be groups or coalitions

rather than a single individual, which can introduce multiple deci-

sionmakers as clients who, collectively, may have a common, over-

arching goal but often without alignment on strategy or focus.

Adding to the complexity, policy work is notoriously slow and non-

linear, and progress is frequently dictated by external forces, such as

legislative calendars and budget cycles. Students rarely feel a sense of

closure in policy projects unless their supervisor can successfully man-

age expectations and carve out a discrete scope of work that is feasible

for a semester or year-long clinic.

Nina W. Tarr, The Skill of Evaluation as an Explicit Goal of Clinical Training, 21

. L.J. 967, 971-72 (1990).

Feldblum, supra note 20, at 792-803.

Id. See also Shah, supra note 11, at 415-416; Carle & Cummings, supra note 12, at

459-465 (discussing the challenges that lawyers face when groups within a social movement

have internal conflicts over goals and strategies).

202 CLINICAL LAW REVIEW [Vol. 30:187

Transactional law can also run counter to the popular image of

traditional lawyering, which in many a student’s mind unfolds like an

episode of Law & Order, with a clear legal dispute and a winner or

loser at the conclusion of an adversarial process. By comparison,

transactional lawyering, practiced effectively, minimizes litigation and

places emphasis on risk mitigation. As with policy lawyers, transac-

tional lawyers also frequently represent groups of individuals, requir-

ing an ability to synthesize collective goals from entropy.

Each of the above elements that are inherent in policy and trans-

actional lawyering can enhance a student’s role confusion in clinic. In

policy and transactional law collaborations, protracted timelines, non-

linear work, unclear rules of engagement, and clients that do not

speak with one voice can each test a student’s professional judgment

and further confuse their ability to distinguish between roles. For ex-

ample, in the context of community lawyering, students may experi-

ence role confusion if a nonprofit client’s political strategy is

perceived to be in tension with the goals and needs of the impacted

community, and in turn the underlying values and movement-oriented

purpose of the students’ own interest in practicing public interest law.

Role confusion can not only undermine the student’s own clinic per-

formance and the effective representation of their clients, but also im-

pede their sense of professional growth and their ability to hone a

professional identity.

B. Potential Solutions

Clinical supervisors working in policy and transactional law part-

nerships can take advantage of the unique features of their practice

areas to illustrate important lessons about honing professional judg-

ment and alleviating role confusion. As I reflect on the past two years

of the Policy Clinic’s collaboration with the SENLC, I have identified

strategies to help add clarity and structure to the students’ clinic part-

nership experience:

• Emphasize race as a common, underlying impetus for community

lawyering. My projects in the Policy Clinic focus exclusively on eq-

uitable development in communities of color. I also encourage my

students to aspire to be movement lawyers who support grassroots

advocacy and social justice not as quarterbacks, but as part of a

supporting cast that defers to the expertise of community mem-

bers.

However, clinics, even those with an explicit social justice

mission, are not anti-racist by default, and require intentionality

Crowder, supra note 13, at 434.

See generally Shah, supra note 11.

Fall 2023] Teamwork Makes the Dream Work 203

across all aspects of clinic operations.

Professor Norrinda Brown

Hayat has offered a prescription for centering race more intention-

ally in clinical pedagogy. Among her recommendations, Professor

Hayat encourages the integration of critical race theory (CRT) to

identify and acknowledge the impact of race on how clients experi-

ence law and policy.

To perhaps the detriment of both my stu-

dents and our clients, I have not been intentional in these efforts,

relying on an assumption that the students who apply to join the

clinic already have a foundational appreciation for the impact of

racism on the law and the community clients they work with. In

fact, clinics may be one of the last opportunities for students to

have intentional discussions about CRT and our failures to address

structural racism at both the individual and policy level. Reflec-

tions on the role of race could be featured in standalone seminars,

as well as integrated into the existing curriculum and clinic struc-

ture, such as in supervision meetings or during orientations and

mock interview exercises. Wherever the opportunity, these conver-

sations must be intentional and the issues made explicit.

• Create opportunities for more meetings between students. To date,

students in the Policy Clinic and the SENLC have met in person

only on an ad hoc basis, such as when observing each other in cli-

ent meetings, or participating in a joint, hour-long session for a

primer on the basics of affordable housing. Naively, as supervisors,

my colleagues and I assumed that, after we introduced the students

to one another in these settings, they would then take the initiative

to continue the interaction and rely on each other to exchange

ideas, cross-pollinate resources, and learn from one another. In

fact, the opposite was true. There may be several reasons for a

reticence to break down the clinic silos, including a lack of clarity

around the rules of confidentiality, the novelty of working as col-

laborators rather than as competitors on a grading curve, and un-

clear expectations from their supervisors. Creating opportunities

for more intentional and structured interactions with students can

help clarify expectations for their roles as student attorneys, as

well as help normalize their collaboration.

• Collaborate on seminars. A specific example of creating more op-

portunities for the students to meet in person is by collaborating

on relevant seminars over the course of the semester. Seminars are

See generally Norrinda Brown Hayat, Freedom Pedagogy: Toward Teaching An-

tiracist Clinics, 28 C

LIN

. L. R

. 149 (2021).

Id. at 158.

204 CLINICAL LAW REVIEW [Vol. 30:187

an opportunity to introduce common skill sets, such as identifying

their client’s goal and, relatedly, developing the cultural compe-

tency to facilitate conversations with different stakeholders. By

sharing time in the classroom, students also have enhanced oppor-

tunity for peer learning on more specialized areas of knowledge.

For example, students in the SENLC could conduct a primer on

nonprofit formation and governance for students in the Policy

Clinic, who could in turn lead a discussion on using various theo-

ries of change to help clients clarify a policy strategy. Seminars are

also an opportunity for students to interact and learn from one

another in case rounds, which can help normalize their discomfort

around role confusion or when there is a perceived lack of align-

ment between the interests of their clients and those of the im-

pacted community.

ONCLUSION

The collaborations between the Policy Clinic and the SENLC is

just one example of how cross-clinic collaboration can improve out-

comes for clients and students, particularly from a community law-

yering approach that seeks to address systemic social injustices. Yet

policy and transactional clinics are not a monolith, and our partner-

ship model may not be applicable to all law schools. In our example,

however, the collaboration has proven to be highly complementary,

and our clients, in particular, have expressed great enthusiasm about

the ability to benefit from the legal services of both clinics. As the

Policy Clinic continues to work with organizational clients seeking

greater self-determination in historically disinvested communities, I

am looking forward to continued collaboration and growth with our

sister clinic.

ECH

UPPORT

: W

IRING

ECHNOLOGY

LINICS

ERVE

ACIAL

USTICE

AURA

This essay explores the intersection between technology law,

clinical pedagogy, and racial justice. Drawing from existing literature

on clinics, social justice, racial justice, and technology, as well as from

interviews and conversations with other technology law clinicians, the

essay: 1) explains the racial and social justice dimensions of technology

law, 2) argues that clinics focused on technology law should strive to

incorporate racial justice into their clinics, and 3) offers suggestions on

how to wire technology law clinics for racial justice.

NTRODUCTION

Issues of social and racial justice intersect with technology in a

multitude of ways. Many lawyers and law students may not notice this

connection without reflection. This essay argues law school clinical

programs should strive to train students to connect technology law

and racial justice. This essay presents a humble exploration on this

topic, a call to action, and an invitation to continued evolution and

dialogue at the intersection of technology law, clinical pedagogy, and

racial justice.

The essay draws from two sources of information. The piece re-

views some of the existing literature on clinics, social justice, racial

justice, and technology. In addition, it summarizes and synthesizes my

thoughts and those of fellow technology law clinicians, gleaned from

individual conversations and interviews, as well as from conversations

at a retreat of technology law clinicians that took place in 2023 at Ge-

orgetown Law. Researching and drafting this piece has been a deeply

valuable reflective practice for me. I hope reading and discussing the

essay will be helpful for at least three types of audiences: 1) fellow

tech law clinicians who are already committed to racial justice work

and will welcome ongoing dialogue on the topic; 2) new and future

tech law clinicians who are interested in integrating racial justice into

* Associate Professor of Law, Georgetown University Law Center and Director of the

Communications & Technology Law Clinic. This essay was part of the Promoting Justice:

Advancing Racial Equity Through Student Practice in Legal Clinics Symposium at the

Georgetown University Law Center. For generously sharing their time and candid

thoughts on topics related to this essay, I thank Kendra Albert, Jordi Goodman, Gautam

Hans, Blake Reid, Victoria Tang, and the participants of the 2023 Tech Clinic Camp for

their candid and generous thoughts on topics related to this essay.

205

206 CLINICAL LAW REVIEW [Vol. 30:205

their clinics and looking for ideas and suggestions on the topic; and 3)

clinicians in other practice areas and law school administrators who

seek more information about how technology-oriented law relates to

the social justice mission of clinical pedagogy generally and to racial

justice specifically.

The essay proceeds in three main parts. The first part explains the

racial and social justice dimensions of technology law. Next, the essay

argues that clinics focused on technology law (e.g. privacy, surveil-

lance, intellectual property, communications law, artificial intelli-

gence, and so on) should incorporate racial justice into the structure,

pedagogy, and work of their clinics. Finally, the essay offers sugges-

tions on how to wire technology law clinics for racial justice.

I. T

ACIAL

USTICE

IMENSION OF

ECHNOLOGY

Throughout history, technology has played an important role in

advancing or failing to advance racial equity, as well as directly sup-

porting both the advancement and suppression of justice movements.

A great deal has been written on this topic—far more than can rea-

sonably be summarized in the context of this brief essay—but I name

a handful of illustrative examples here for readers not familiar with

the field.

For some readers, this section of this essay admittedly will be

preaching to the choir. This includes the majority of technology law

clinicians with whom I have spoken on this topic—most are already

thinking about and engaged in racial justice work to a lesser or greater

extent. Yet for other readers, the connection between technology law

and racial justice may not be obvious.

A. Technology’s Role in Advancing Racial Equity or

Aggravating Inequity

Technological innovation has long played a critical support role in

the struggle for racial equity. Without technologies to communicate

and organize, many of the events in history that we think of as key

moments in the fight for racial justice would not have occurred or

would not have had the same impact. For example, in the past decade,

ubiquitous camera-equipped smartphones have played an instrumen-

tal role in documenting police violence against and killings of Black

people and sharing information with the public both about police vio-

lence and about the many responsive protests.

The role of modern

See Nicol Turner Lee, Commentary: Where Would Racial Progress in Policing Be

Without Camera Phones?, B

ROOKINGS

NST

. (June 5, 2020), https://www.brookings.edu/ar-

ticles/where-would-racial-progress-in-policing-be-without-camera-phones/ (“The combina-

tion of smart phones, video recording apps, and social media platforms have generated a

Fall 2023] Tech Support 207

communications technology in the current racial justice movement

echoes the role played by television decades ago in the Civil Rights

Movement. There were only a few thousand television sets in use in

the U.S. in 1946, but by 1955, half of all U.S. homes had one,

and by

1957, 80% of homes had one.

Televisions enabled people all over the

country to view pivotal moments such as Martin Luther King, Jr.’s “I

Have A Dream” speech in 1963,

as well as to gain insight into some

of the injustices that Black people faced, such as police use of violent

instruments like attack dogs and beatings to suppress peaceful demon-

strations in Birmingham.

And for as long as technology has played a role in racial justice,

so too has the law, with its capacity to alter the availability—or lack

thereof—of technology. During the Civil Rights Era, as civil rights

leaders used television as a tool to support their work, they also lever-

aged the law to attempt to increase televised coverage of Black peo-

ple’s struggles, perspectives, and interests.

In the late 1950s and

1960s, a group of activists led by the Reverend C. Everett Parker of

the United Church of Christ began a sixteen-year legal challenge to

the broadcast license of a Jackson, Mississippi television station over

its failure to serve the interests and perspectives of Black people and

its refusal to fairly cover the Civil Rights Movement.

New technologies, if not carefully and thoughtfully deployed with

an intentional orientation toward justice, can also aggravate existing

and historical racial inequity. In a previous article about technology

and racial equity in the context of policing, I defined and explained

five different ways that technology may aggravate existing and histori-

cal racial inequity.

First, existing or historical inequity may be embed-

ded into a technology such that when it is used, its use causes the

replication and reinforcement of that inequity.

For example, an artifi-

cial intelligence or predictive tool may be trained on historical data

tainted by past incidences of deep inequity, and when that tool is then

revolution in public empowerment. Rather than having to take the word of African Ameri-

cans over the police, people can see the violence for themselves and demand justice.”).

Michell Stevens, History of Television, https://stephens.hosting.nyu.edu/History

%20of%20Television%20page.html (last visited Sept. 11, 2023).

See Michael Bowman, TV, Cell Phones and Social Justice, 24 R

ACE

, G

ENDER

LASS

16, 17 (2017).

The 1963 March on Washington, NAACP: H

ISTORY

XPLAINED

, https://naacp.org/

find-resources/history-explained/1963-march-washington (last visited Sept. 11, 2023)

Bowman, supra note 3, at 17.

ILLS

, C

HANGING

HANNELS

: T

IVIL

IGHTS

ASE THAT

RANSFORMED

ELEVISION

3–5 (2004).

Id.

Laura Moy, A Taxonomy of Police Technology’s Racial Inequity Problems, 2021 U.

. L. R

. 139 (2021).

Id. at 154–59.

208 CLINICAL LAW REVIEW [Vol. 30:205

used to make suggestions or predictions, it replicates the inequitable

patterns that were present in its training data.

Second, when a relatively non-transparent technology supplants

some aspect of human decision-making that is known to be inequita-

ble, it may mask the underlying inequity from outside observers.

For

example, a technology that is used to help screen resumes may be ra-

cially biased, but if outsiders view the tool as unlikely to exhibit bias

relative to human decisionmakers, its adoption may obscure racial in-

equity in hiring.

Third, technology can spread racial inequity from one context to

another when a tool embeds racial inequity derived from one context,

and then is adopted for use in another context.

For example, racial

bias in the development process of a third-party vendor could result in

development of a biased tool that, when adopted by another party,

spreads the developer’s bias to the user.

Fourth, technology can provide powerful tools to augment the

harm of racially unjust parties or activities.

For example, consider

powerful police surveillance tools such as “cell-site simulators”—fake

cell phone towers. When wielded by law enforcement agencies that

tend to deploy resources in a racially inequitable way, these tools can

exacerbate the inequitable harms caused by racially disparate

policing.

Finally, technology can compromise existing institutional checks

we may have on racial inequity by frustrating the ability of legislative

bodies, courts, and the public to effectively understand and exercise

oversight over complex technologies.

B. Concrete Examples of Technology’s Interplay with Racial Justice

To further illustrate the interplay between technology, technology

law and policy, and racial justice in concrete terms, I offer a handful of

specific examples here.

1. Internet access and affordability.

Reliable high-speed internet access is not available and afforda-

ble to everyone and is disproportionately unavailable to communities

See id. at 155–57.

Id. at 159–62.

See id. at 187.

Id. at 162–66.

See id. at 162–65.

Id. at 166–72.

See id.

Id. at 172–75.

Fall 2023] Tech Support 209

of color.

But internet access is increasingly recognized as essential,

with some even arguing that it should be regulated as a utility.

In-

deed, internet access is necessary for students to complete their home-

work and succeed in school,

as well as for workers to be eligible for

and do a large number of jobs

—even more so in the past few years

as a result of the Covid-19 pandemic.

Health experts have recently

argued that internet access is also emerging as a social determinant of

health, adding that this “appears to be particularly true for under-

resourced racial and ethnic minority communities and aging

populations.”

Olivia Wein & Cheryl Leanza, Affordable Broadband Service Is a Racial Equity and

Public Health Priority During COVID-19, L

EADERSHIP

ONF

. C

. & H

. R

., June 29,

2020, https://civilrights.org/blog/affordable-broadband-service-is-a-racial-equity-and-pub-

lic-health-priority-during-covid-19/ (“According to census data, about 10 percent each of

Black and Hispanic Americans and 13 percent of American Indians and Alaska Natives

have no internet subscription compared to 6 percent of White households. And not all

broadband access is equal: a disproportionate number of Black and Latino households rely

on a smartphone (small screen) for their broadband connectivity.”); see Sara Atske & An-

drew Perrin, Home Broadband Adoption, Computer Ownership Vary by Race, Ethnicity in

U.S., P

ESEARCH

., July 16, 2021, https://www.pewresearch.org/short-reads/2021/

07/16/home-broadband-adoption-computer-ownership-vary-by-race-ethnicity-in-the-u-s/.

See generally Human Rights Council Res. 47/16, The Promotion, Protection and En-

joyment of Human Rights on the Internet, A/HRC/RES/47/16 (July 13, 2021); see also

U.N. Human Rights Council, Report of the Special Rapporteur on the Promotion and Pro-

tection of the Right to Freedom of Opinion and Expression, Frank La Rue, ¶ 2, U.N. Doc.

A/HRC/17/27 (May 16, 2011) (stating that “[t]he Special Rapporteur believes that the In-

ternet is one of the most powerful instruments of the 21st century for increasing trans-

parency in the conduct of the powerful, access to information, and for facilitating active

citizen participation in building democratic societies,” and asserting that “facilitating access

to the Internet for all individuals, with as little restriction to online content as possible,

should be a priority for all States.”); Catherine Howell & Darrell M. West, Commentary:

The Internet as a Human Right, B

ROOKINGS

NST

. (Nov. 7, 2016), https://www.brook-

ings.edu/blog/techtank/2016/11/07/the-internet-as-a-human-right/.

See, e.g., Susan Crawford, Why Broadband Should Be a Utility, B

ROADBAND

OM-

MUNITIES

, Mar.–Apr. 2019, at 50, https://www.bbcmag.com/law-and-policy/why-broad

band-should-be-a-utility.

Get ON the Internet and Do Your Homework!, U.S. G

’

. A

CCOUNTABILITY

ATCH

LOG

(Aug. 8, 2019), https://www.gao.gov/blog/2019/08/08/get-on-the-internet-and-

do-your-homework.

Joe Supan, 70% of Americans Say: We Can’t Do Our Jobs Without an Internet Con-

nection, A

LLCONNECT

(Sept. 15, 2020), https://www.allconnect.com/blog/70-percent-of-

americans-cant-do-their-jobs-without-home-internet-connection (“Most employed Ameri-

cans (over 71.5%) say they could not perform their jobs without a home internet connec-

tion.”); Aaron Smith, Lack of Broadband Can Be a Key Obstacle, Especially for Job

Seekers, P

ESEARCH

. (Dec. 28, 2015), https://www.pewresearch.org/short-reads/

2015/12/28/lack-of-broadband-can-be-a-key-obstacle-especially-for-job-seekers/.

Kim Parker, Juliana Menasce Horowitz, & Rachel Minkin, How the Coronavirus

Outbreak Has – and Hasn’t – Changed the Way Americans Work, P

ESEARCH

(Dec. 9, 2020), https://www.pewresearch.org/social-trends/2020/12/09/how-the-coronavirus-

outbreak-has-and-hasnt-changed-the-way-americans-work/.

Tamra Burns Loeb, AJ Adkins-Jackson, & Arleen F. Brown, No Internet, No Vac-

cine: How Lack of Internet Access Has Limited Vaccine Availability for Racial and Ethnic

210 CLINICAL LAW REVIEW [Vol. 30:205

Thus, to advance racial equity in multiple areas, including educa-

tion, economic opportunity, and healthcare, it is important to increase

the availability of affordable internet access to underserved people

and communities.

Law and policy can help with this, for example, by

making resources available to increase internet connectivity,

by sup-

porting affordable internet access programs,

and by supporting local

efforts to fund and build community broadband networks.

2. Tools for racial justice organizing.

For racial justice to advance, movement participants and leaders

must have the tools to share information, to organize and coordinate,

and to be able to do so in a way that is both reliable and trustworthy.

Movement participants often rely on social media and messaging plat-

forms for a large part of their collective work.

To ensure that plat-

forms are fully available for this purpose, they must be made truly

welcoming and not hostile to participants,

and platform communica-

tions and activities must be protected from surveillance by potentially

hostile parties.

Law and policy can help by supporting the existence

Minorities, T

ONVERSATION

(Feb. 8, 2021), https://theconversation.com/no-internet-

no-vaccine-how-lack-of-internet-access-has-limited-vaccine-availability-for-racial-and-eth-

nic-minorities-154063.

See C

OLOR OF

HANGE

LACK

ECH

GENDA

: T

ECH

OLICY

+ R

ACIAL

US-

TICE

10 (2022), https://colorofchange.org/wp-content/uploads/2022/09/22-09_BLACK

TECHAGENDA.pdf (“Giving Black communities broadband access will ensure they can

keep pace with economic opportunities, education and communications as they move

online.”).

Fact Sheet: Biden-?Harris Administration Announces Over $40 Billion to Connect

Everyone in America to Affordable, Reliable, High-Speed Internet, W

HITE

OUSE

(June 26,

2023), https://www.whitehouse.gov/briefing-room/statements-releases/2023/06/26/fact-

sheet-biden-harris-administration-announces-over-40-billion-to-connect-everyone-in-

america-to-affordable-reliable-high-speed-internet/.

Homework Gap and Connectivity Divide, U.S. F

. C

OMMC

’

OMM

’

, https://

www.fcc.gov/about-fcc/fcc-initiatives/homework-gap-and-connectivity-divide (last visited

Sept. 11, 2023).

See Our Vision, I

NST

FOR

. S

ELF

-R

ELIANCE

MTY

. N

ETWORKS

, https://com-

munitynets.org/content/our-vision (last visited Sept. 11, 2023).

See Bijan Stephen, Social Media Helps Black Lives Matter Fight the Power, WIRED,

Nov. 2015, https://www.wired.com/2015/10/how-black-lives-matter-uses-social-media-to-

fight-the-power/.

See id. (stating that “social media itself has become another arena where black peo-

ple are abused”).

See id. (discussing the fact that “many leaders of Black Lives Matter have been

monitored by federal law enforcement agencies”); M

OVEMENT FOR

LACK

IVES

& C

RE-

ATING

NFORCEMENT

CCOUNTABILITY

& R

ESPONSIBILITY

LINIC

, S

TRUGGLE FOR

OWER

: T

NGOING

ERSECUTION OF

LACK

OVEMENT BY THE

U.S. G

OVERNMENT

(2021), https://m4bl.org/wp-content/uploads/2021/08/Struggle-For-Power-The-Ongoing-

Persecution-of-Black-Movement-by-the-U.S.-Government.pdf (describing government

“interference with organizing and movement building through a range of tactics, including

increased social media monitoring, surveillance at protests, interrogations of those per-

Fall 2023] Tech Support 211

of strong encryption and other security measures,

by creating legal

pressure to rein in hostile behavior among platform users such as har-

assment and doxing,

and by reining in law enforcement surveillance

of private communications and activities.

3. Automated eligibility determinations.

Data-driven technologies now help automate advertising and de-

cision-making in areas such as housing, employment, credit, educa-

tion, and healthcare. The fairness and transparency—or lack

thereof—of such technologies will play a major role in determining

whether the future will bring more or less racial equity in these and

other areas. As many experts have explained, these new tools some-

times are embedded with the very biases they were deployed to help

address.

Law and policy can help, for example, by establishing clar-

ity around the impermissibility of discrimination in automated deci-

sion-making,

by creating a legal framework for proactive

antidiscrimination audits of such systems to take place,

and by en-

suring that government regulators and enforcers are equipped with

the necessary tools and expertise to exercise proper oversight over

ceived to be leaders or otherwise associated with activism, and the use of informants”).

See Amelia Nierenberg, Signal Downloads Are Way Up Since the Protests Began,

N.Y. T

IMES

, June 11, 2020, https://www.nytimes.com/2020/06/11/style/signal-messaging-

app-encryption-protests.html (explaining the role of encrypted messaging tools such as Sig-

nal in organizing protests); Brandon E. Patterson, “Black People Need Encryption,” No

Matter What Happens in the Apple-FBI Feud, M

OTHER

ONES

, Mar. 22, 2016, https://

www.motherjones.com/politics/2016/03/black-lives-matter-apple-fbi-encryption/ (quoting

multiple civil rights activists stating that they rely on trusted encrypted communications

tools); ENCRYPT Act of 2023, H.R. 5311, 118th Cong. (2023) (a proposed piece of legisla-

tion that would establish certain legal protections for encrypted technologies).

To “dox” is “[t]o document or expose (a person’s identity); spec. to search for and

publish private or identifying information about (an individual) on the internet, typically

with malicious intent.” Dox, O

XFORD

. D

ICTIONARY

, https://www.oed.com/dictionary/

dox_v?tab=meaning_and_use. Users of various internet platforms sometimes dox other

users for the purpose of punishing or harassing them, and various legislative efforts have

aimed to rein in this behavior. See Rob Harrington, Online Harassment and Doxing on

Social Media, M

ICH

. T

ECH

. L.R. B

LOG

(Apr. 12, 2022), https://mttlr.org/2022/04/online-

harassment-and-doxing-on-social-media/ (describing anti-doxing legislative efforts).

See, e.g., Rachel Levinson-Waldman &

Angel D´ıaz, How to Reform Police Monitor-

ing of Social Media, B

ROOKINGS

NST

.: T

ECH

TREAM

(July 9, 2020), https://www.brook

ings.edu/articles/how-to-reform-police-monitoring-of-social-media/.

See Fact Sheet: Biden-?Harris Administration Announces Key Actions to Advance

Tech Accountability and Protect the Rights of the American Public, W

HITE

OUSE

(Oct. 4,

2022), https://www.whitehouse.gov/ostp/news-updates/2022/10/04/fact-sheet-biden-harris-

administration-announces-key-actions-to-advance-tech-accountability-and-protect-the-

rights-of-the-american-public/.

See AG Racine Introduces Legislation to Stop Discrimination in Automated Decision-

Making Tools that Impact Individuals’ Daily Lives, O

. A

’

FOR

D.C. (Dec. 9,

2021), https://oag.dc.gov/release/ag-racine-introduces-legislation-stop.

Id.

212 CLINICAL LAW REVIEW [Vol. 30:205

such tools.

4. Workplace automation and surveillance.

Automation and worker surveillance in workplaces are both dis-

placing workers and leading to the deterioration of working condi-

tions across multiple industries.

These challenges disproportionately

impact low-income workers of color.

Law and policy can respond,

for example, by giving workers rights with respect to their data, ensur-

ing that employers can be and are held responsible for harms caused

by automated systems, establishing guardrails for employers’ use of

automation and surveillance, protecting workers’ organizing rights,

and prohibiting discrimination.

5. Automated facial analysis technology.

Automated facial analysis technology, including facial recogni-

tion, is used in a multitude of applications that may be critical for peo-

ple’s lives, such as by police to identify crime suspects and by financial

institutions to authenticate users. Research has indicated that this

technology often does not perform equally well across demographic

groups, a problem that could lead to disproportionate harms for peo-

ple of color if, for example, it leads to higher rates of misidentification

or authentication failure in contexts such as criminal investigations or

banking authorizations.

And even if the demographic performance

See L

AURA

& G

ABRIELLE

EJOUIS

, D

ROJECT

: A

DDRESSING

HAL-

LENGES AT THE

NTERSECTION OF

IVIL

IGHTS AND

ECHNOLOGY

(2020), https://

uploads.dayoneproject.org/2020/12/14123102/Addressing-Challenges-at-the-Intersection-

of-Civil-Rights-and-Technology.pdf.

See generally A

NNETTE

ERNHARDT

, L

ISA

RESGE

, & R

EEM

ULEIMAN

, D

ATA AND

LGORITHMS AT

ORK

: T

ASE FOR

ORKER

ECHNOLOGY

IGHTS

(2021), https://

laborcenter.berkeley.edu/wp-content/uploads/2021/11/Data-and-Algorithms-at-Work.pdf;

Brishen Rogers, Workplace Data and Workplace Democracy, 6 G

. L. T

ECH

. R

. 454

(2022); J

ESSIE

HF H

AMMERLING

, T

ECHNOLOGICAL

HANGE IN

IVE

NDUSTRIES

HREATS TO

OBS

, W

AGES

AND

ORKING

ONDITIONS

(2022), https://labor

center.berkeley.edu/wp-content/uploads/2022/09/Technological-change-in-five-industries-

Threats-to-jobs-wages-and-working-conditions.pdf.

ERNHARDT ET AL

., supra note 39, at 2 (explaining that “workers of color, women,

and immigrants can face direct discrimination via systemic biases embedded in these tech-

nologies, and are also most likely to work in occupations at the front lines of experimenta-

tion with artificial intelligence”); H

AMMERLING

, supra note 39, at 5 (explaining that

“women and people of color . . . are overrepresented in the many front-line occupations

that are most likely to be changed by technology.”).

ERNHARDT ET AL

., supra note 39, at 19 (offering “policy principles that can help

build a robust regulation regime” for data-driven workplaces).

See, e.g., Joy Buolamwini & Timnit Gebru, Gender Shades: Intersectional Accuracy

Disparities in Commercial Gender Classification, 81 P

ROC

. M

ACHINE

EARNING

. 1, 11

(2018); Inioluwa Deborah Raji & Joy Buolamwini, Actionable Auditing: Investigating the

Impact of Publicly Naming Biased Performance Results of Commercial AI Products, in

AIES: P

ROC

. 2019 AAAI/ACM C

ONF

AI, E

THICS

, & S

. 429 (Jan. 2019), https://

Fall 2023] Tech Support 213

gap of facial recognition is eventually eliminated, the adoption of this

technology by police may increase the likelihood of police misidentifi-

cations and, ultimately, wrongful convictions—a severe harm that will

fall disproportionately on heavily policed communities of color.

Law

and policy can help address this problem through legislation or at least

department policies that restrict or prohibit particular uses of auto-

mated facial analysis technology or that at a minimum establish high

standards of quality and oversight for its use.

In these and countless other areas, specialized expertise is needed

at the intersection of technology and many areas of law. Technology

law clinics can and must assist with that legal work, as well as with

training the next generation of lawyers who will do that work.

II. T

ACIAL

USTICE

IMENSION OF

ECHNOLOGY

LINICS

Law school clinics should explore the interplay between technol-

ogy and racial justice in depth and provide students with the opportu-

nity to reflect and learn about these areas together in a practical

environment. There are at least four reasons for technology law clinics

to intentionally advance racial justice. I have already discussed the

first: technology—and the law that shapes its availability and use—is

www.aies-conference.com/2019/wp-content/uploads/2019/01/AIES-19_paper_223.pdf;

LARE

ARVIE

, A

LVARO

M. B

EDOYA

, & J

ONATHAN

RANKLE

ERPETUAL

INE

: U

NREGULATED

OLICE

ACE

ECOGNITION IN

MERICA

(2016), https://

www.perpetuallineup.org/; Brendan F. Klare, Mark J. Burge, Joshua C. Klontz, Richard W.

Vorder Bruegge, & Anil K. Jain, Face Recognition Performance: Role of Demographic In-

formation, 7 IEEE T

RANSACTIONS ON

NFO

. F

ORENSICS

& S

. 1789, 1796–97 (2012).

Laura Moy, Facing Injustice: How Face Recognition Technology May Increase the

Incidence of Misidentifications and Wrongful Convictions, 30 W

. & M

ARY

ILL

. J.

337 (2021).

See, e.g., G

ARVIE ET AL

., supra note 42 at 62–71 (law and policy recommendations

for adoption of face recognition technology by police agencies); Moy, supra note 43, at

367–72 (law and policy recommendations for police use of face recognition technology,

including policies that ought to apply to eyewitness identification procedures to help); Tate

Ryan-Mosley, The Movement to Limit Face Recognition Tech Might Finally Get a Win,

MIT T

ECH

. R

., July 20, 2023, https://www.technologyreview.com/2023/07/20/1076539/

face-recognition-massachusetts-test-police/ (describing various legislative efforts to regu-

late the use of face recognition technology). In recent years there have been numerous

federal legislative proposals to ban or regulate face recognition technology in certain con-

texts, though none have passed yet. See, e.g., Facial Recognition and Biometric Technology

Moratorium Act of 2023, S. 681, H.R. 1404, 118th Cong. (2023)(the most recent version of

a largely identical bill that was introduced under the same name in both the 116th and

117th Congresses); FACE IT Act, S. 5334, 117th Cong. (2022); Ethical Use of Facial Rec-

ognition Act, S. 5289, 117th Cong. (2022); Facial Recognition Act of 2022, H.R. 9061, 117th

Cong. (2022); Facial Recognition Ban on Body Cameras Act, H.R. 8154, 117th Cong.

(2022); Facial Recognition Technology Warrant Act of 2019, S. 2878, 116th Cong. (2019);

FACE Protection Act of 2019, H.R. 4021, 116th Cong. (2019); Commercial Facial Recogni-

tion Privacy Act of 2019, S. 847, 116th Cong. (2019).

214 CLINICAL LAW REVIEW [Vol. 30:205

inextricably tied to issues of racial justice.

Second, a central goal of

legal education in general, and of law school clinics in particular, is to

provide law students with justice training.

Third, the tremendous

size and power of tech companies underscores the importance of en-

suring new lawyers destined to represent those companies have re-

ceived training on the broader justice implications of those companies’

actions.

And finally, it is important for the field of technology law to

be inviting for students of color and students interested in racial

justice.

A. Law Schools Are Obligated to Provide Students with Bias and

Justice Training

Law schools have an obligation to provide students with bias and

justice training. This obligation has been affirmed by the American

Bar Association, which last year adopted a revised Standard 303(c) for

legal education on this very point.

Under the revised standard, law

schools must “provide education to law students on bias, cross-cul-

tural competency, and racism.”

The revised ABA standard follows a rich and many decades-old

body of literature arguing that law schools—and especially clinics—

must train students in justice. Advocates for the clinical education

model have been arguing for nearly a century that the classroom does

not and cannot provide sufficient training for a student to become a

lawyer.

In 1969, Chief Justice Warren Burger opined that “[t]he

modern law school is not fulfilling its basic duty to provide society

with people-oriented counselors and advocates to meet the expanding

needs of our changing world.”

That same year, William Pincus,

widely recognized as one of the founders of clinical education, and

Peter deLancey Swords defined social justice as one of the core educa-

tional values of the clinical model. They argued that a student in the

clinical environment “needs to learn to recognize what is wrong with

See discussion supra Section I.

See discussion infra Section II.A.

See discussion infra Section II.B.

See discussion infra Section II.C.

ABA Standards and Rules of Procedure for Approval of Law Schools (2021-2022),

A.B.A. S

EGAL

DUC

. & A

DMISSIONS TO THE

, https://www.americanbar.org/

content/dam/aba/administrative/legal_education_and_admissions_to_the_bar/standards/

2021-2022/21-22-standards-book-revisions-since-printed.pdf.

Id.

See Judge Jerome Frank, Why Not a Clinical-Lawyer School?, 81 U. P

. L. R

. 907

(1933).

Chief Justice Warren Burger, Address Before the ABA Convention Prayer Breakfast

(Aug. 10, 1969), quoted in Dominick R. Vetri, Educating the Lawyer: Clinical Experience as

an Integral Part of Legal Education, 50 O

. L. R

. 51, 59–60 (1970).

Fall 2023] Tech Support 215

the society around [them]—particularly what is wrong with the ma-

chinery of justice in which [they are] participating and for which [they

have] a special responsibility.”

In 1980, upon becoming dean-elect of

the University of Oregon School of Law, Derrick Bell called for “hu-

manity in legal education,” asserting that “[l]awyers need conscience

as well as craft,” and arguing that “law school faculty and administra-

tors cannot be exempted from their most vital obligation, to instill eth-

ical values in students, through coursework and by example.”

Calls for law schools to train students in humanity and values

were echoed, amplified, and focused on clinics in the 1980s and 1990s.

In 1986, Gary Palm, then-chair of the Association of American Law

Schools (AALS) Section on Clinical Legal Education, urged clinics to

focus on instructing students on things they would not learn else-

where, including about poverty, stating that students “should confront

the failure of our government to provide equal justice and fair legal

procedures for the poor.”

In 1990, a special AALS committee identi-

fied, as one of the nine teaching goals present in most clinics, “im-

parting the obligation for service to indigent clients, information

about how to engage in such representation, and knowledge concern-

ing the impact of the legal system on poor people.”

In 1992, Robert

Dinerstein, who had chaired the AALS special committee, wrote that

“to many people the relationship between clinical programs and the

justice mission of American law schools is so clear as to be self-evi-

dent. . . . [T]he law clinic may be the only place in which concerns

about justice are discussed and, at least sometimes, acted upon.”

And a landmark report that same year generated by an American Bar

Association task force concluded that training for lawyers in profes-

sional responsibility “should encompass the values of the profession,”

among them “striving to promote justice, fairness, and morality.”

William Pincus & Peter deLancey Swords, Educational Values in Clinical Experience

for Law Students, C

OUNCIL ON

EGAL

DUC

. P

. R

ESP

., (New York, N.Y.), Sept. 1969, at

Derrick A. Bell Jr., Humanity in Legal Education, 59 O

. L. R

. 243, 244 (1980).

Gary H. Palm, Message from the Chair, AALS S

ECTION ON

LINICAL

EGAL

DU-

CATION

EWSLETTER

, Nov. 1986, at 2.

Report of the Committee on the Future of the In-House Clinic, 42 J. L

EGAL

DUC

508, 515 (1992).

Robert D. Dinerstein, Clinical Scholarship and the Justice Mission, 40 C

LEV

. S

. L.

. 469, 469 (1992).

Legal Education and Professional Development – An Educational Continuum (Re-

port of the Task Force on Law Schools and the Profession: Narrowing the Gap), A.B.A.

EGAL

DUC

. & A

DMISSIONS TO THE

, July 1992, at 135–36 (often referred to

as the “MacCrate Report” after Robert MacCrate, who chaired the task force) [hereinafter

MacCrate Report].

216 CLINICAL LAW REVIEW [Vol. 30:205

B. Technology Law Clinics Cannot Opt Out of the Obligation to

Train Students on Bias and Justice

Despite the rich history involving law school clinics and social

and racial justice—a context into which technology law clinics were

born—technology law clinics typically retain the discretion to decide

which cases to accept. As a result, tech law clinicians may find that

they do not have to directly address racial justice in their clinics: they

can select cases in which neither their client, the decision-making

venue, nor any other party will bring up race.

But for all the reasons that legal professionals and scholars have

called for law school clinics to play a central role in training law stu-

dents in social justice, technology law clinics should embrace this call.

If law students take any clinical course at all, many, and perhaps a

majority, take only one.

And a student’s clinical work may be the

only part of the law school experience that can directly train them on

the values of the profession and on what Jane Aiken refers to as “jus-

tice readiness.”

This applies to technology law clinics as well as to

any other kind of clinic.

Conversely, technology law clinics should eschew work that is si-

lent on justice, that lacks consideration of non-majority perspectives,

or that reinforces the message that the law is or ever can be neutral

with respect to justice. In the words of Aiken,

If all I can do in law school is to teach students skills ungrounded in

a sense of justice then at best there is no meaning to my work, and

at worst, I am contributing to the distress in the world. I am sending

more people into the community armed with legal training but with-

out a sense of responsibility for others or for the delivery of justice

in our society.

By embracing racial justice in the context of our clinics, technol-

ogy law clinicians can help students learn how to pierce the veneer of

neutrality that often obscures the justice implications of technology

law and to analyze the law through a justice lens. And as discussed in

Robert Kuehn, Implementation of the ABA’s New Experiential Training Require-

ment: More Whimper than Bang, Best Pracs. Legal Educ. Blog (Apr. 28, 2021), https://best

practiceslegaled.com/2021/04/28/implementation-of-the-abas-new-experiential-training-re-

quirement-more-whimper-than-bang/ (noting that in 2020, across U.S. law schools, the

number of seats available per J.D. student in clinics was only 0.28).

See generally Jane H. Aiken, The Clinical Mission of Justice Readiness, 32 B.C. J.L.

& S

. J

UST

. 231-246 (2012).

See K

IMBERL

ILLIAMS

RENSHAW

ORWARD

: T

OWARD A

ACE

-C

ONSCIOUS

EDAGOGY IN

EGAL

DUCATION

2–3 (1988); see also further elaboration on Crenshaw’s

description and discussion of “perspectivelessness” infra notes 72–73 and accompanying

text.

Jane Harris Aiken, Striving to Teach Justice, Fairness, and Morality, 4 C

LIN

. L. R

1 (1997).

Fall 2023] Tech Support 217

greater depth below, squarely addressing racial justice in our clinics

can also help our students learn many important related professional

skills that extend beyond the substantive ability to analyze the law

through a justice lens. By encouraging students to be self-critical and

honest about their approach to racial justice, we create opportunities

for them to develop the important skill of reflection.

By facilitating

discussions of race in our clinical seminar and rounds practices, we

teach students to embrace the type of difficult dialogue that will offer

the greatest opportunities for professional growth throughout their ca-

reers.

And by including students in conversations and deliberations

about the role of race and racial justice in areas such as case selection

and client counseling, seminar structure, clinic operations, and our

broader institutions, we enrich students’ understanding of how to ap-

ply a justice lens to all aspects of the practice of law.

C. Lawyers Going to Work for Powerful Tech Companies Should

Be Trained in the Justice Implications of Their Work

Tech law clinicians must address racial justice in our clinics be-

cause many of our students are destined to practice law in the interest

of powerful and well-resourced technology companies. In that role,

they may have the opportunity to help their employers or clients bet-

ter understand the racial justice implications of their products and

practices. The law student of today may be the in-house counsel of

tomorrow, in a position either to support or combat decisions about

technology for reasons related to racial justice.

In many ways, tech companies represent the emerging “corridors

of power.” Tech sector revenue accounts for about a tenth of the U.S.

gross domestic product.

In particular, the “Big Five” tech giants, Al-

phabet (Google’s parent company), Amazon, Meta, Apple, and

Microsoft are tremendously powerful, with a combined annual reve-

nue that in recent years has often topped $1 trillion, or more than the

gross domestic product of Switzerland.

The sheer size of these com-

panies makes it difficult to effectively regulate them. Indeed, when the

See discussion infra Section III.A.

See discussion infra Section III.B.

See discussion infra Section III.C.

INA

IGHFILL

& C

HRISTOPHER

URFIELD

, U.S. D

’

. B

UREAU

CON

. A

NAL-

YSIS

, N

EW AND

EVISED

TATISTICS OF THE

U.S. D

IGITAL

CONOMY

, 2005–2020 at 1

(2022), https://www.bea.gov/system/files/2022-05/New%20and%20Revised%20Statistics

%20of%20the%20U.S.%20Digital%20Economy%202005-2020.pdf (stating that “in 2020,

the U.S. digital economy accounted for $3.31 trillion of gross output, $2.14 trillion of value

added (translating to 10.2 percent of U.S. gross domestic product (GDP)).”).

GDP (current US$), W

ORLD

ANK

, https://data.worldbank.org/indicator/NY.GDP.

MKTP.CD?most_recent_value_desc=true (last visited Sept. 8, 2023) (showing the GDP of

Switzerland to be approximately $807.7 billion).

218 CLINICAL LAW REVIEW [Vol. 30:205

Federal Trade Commission announced its record-breaking $5 billion

fine of Facebook a few years ago, Facebook’s stock price actually rose

in response.

Yet tech giants regularly take actions and make deci-

sions about things that have major implications for our lives and

futures.

When students in our clinics graduate from law school and end up

at tech companies, they will become forces helping to direct the power

of their employers, for better or worse, toward greater or lesser jus-

tice. If we want our students to become lawyers who can influence the

tremendously powerful systems in which they work for good, we must

prepare them for that role. They will need the skills not only to evalu-

ate how their employers’ actions may affect racial justice but also to

lead conversations and advocate for actions and policies that will ad-

vance it.

D. The Technology Law Field Should Be Inviting to Students of

Color and Students Interested in Racial Justice

Law clinics must address racial justice to help make the technol-

ogy law field more inviting for people of color and people interested

in racial justice.

The technology sector is even more disproportionately white and

male than many other fields.

The whiteness of technology is not lim-

ited to the private sector; civil society organizations are also dispro-

portionately white. In 2019, Alisa Valentin wrote a blog post about

#TechPolicySoWhite (a hashtag inspired by the #OscarsSoWhite

hashtag created by April Reign). Valentin recounted:

my experiences in various meetings and events related to digital in-

clusion, artificial intelligence, content moderation, privacy, and in-

tellectual property. I often think to myself, “#TechPolicySoWhite.”

. . . In many of these spaces there is almost always someone from a

non-marginalized background who speaks with authority about how

a certain policy has or will impact communities of color. At this

point, this has become normalized behavior within the Beltway.

Charlotte Jee, Facebook Is Actually Worth More Thanks to News of the FTC’s $5

Billion Fine, MIT T

ECH

. R

., July 15, 2019, https://www.technologyreview.com/2019/07/

15/134196/facebook-is-actually-richer-thanks-to-news-of-the-ftcs-5-billion-fine/; see Siva

Vaidhyanathan, Billion-Dollar Fines Can’t Stop Google and Facebook. That’s Peanuts for

Them, T

UARDIAN

, July 26, 2019, https://www.theguardian.com/commentisfree/2019/

jul/26/google-facebook-regulation-ftc-settlement.

See Lina M. Khan, Sources of Tech Platform Power, 2 G

. L. T

ECH

. R

. 325

(2018).

U.S. E

QUAL

MPLOYMENT

PPORTUNITY

OMM

’

, Diversity in High Tech, https://

www.eeoc.gov/special-report/diversity-high-tech (last visited Sept. 8, 2023).

Alisa Valentin, #TechPolicySoWhite, P

UBLIC

NOWLEDGE

LOG

(Feb. 1, 2019),

https://publicknowledge.org/techpolicysowhite/.

Fall 2023] Tech Support 219

This problem extends to technology law clinics. At several points

during a recent retreat of around twenty technology law clinicians

from around the country, folks in the room looked around and ob-

served how very white the gathering was.

When we operate clinics as white-dominated spaces without di-

rectly acknowledging and addressing issues of race, we risk perpetuat-

ing whiteness by fostering environments that are hostile to people of

color. Kimberl ´e Williams Crenshaw explored the law school tendency

to promote “perspectivelessness,” in which faculty attempting to teach

legal analysis would “discount[] the relevance of any particular per-

spective in legal analysis and . . . posit[] an analytical stance that has

no specific cultural, political, or class characteristics.”

Perspective-

lessness is particularly burdensome to students of color, who are often

forced to suppress their identities and experiences and “participate in

the discussion as though they were . . . colorless legal analysts.”

Mar-

garet Montoya explained that mimicking the characteristics of the

dominant class for the purpose of participating in the classroom or

another context “is comparable to being ‘on stage.’ Being ‘on stage’ is

frequently experienced as being acutely aware of one’s words, affect,

tone of voice, movements and gestures because they seem out of sync

with what one is feeling and thinking.”

More recently, Bennett Ca-

pers observed that “[n]on-white students, particularly Black and

Brown students, often find that they must unrace themselves, and be-

come white.”

When students of color then choose to or must ground

a particular argument in their own racial experience, they often then

feel put on the spot or dismissed.

Failing to directly address race in the practice of technology law

further perpetuates whiteness. When we avoid addressing race in

clinic, we fail to equip newly minted lawyers with the skills and habits

necessary to confront racial equity in their own future workplaces.

Jean Koh Peters and Susan Bryant warn that as a result of this failure,

“[s]tudents who experience race-based microaggressions towards

themselves and their clients may have no framework to talk about

these acts and how to respond.”

RENSHAW

, supra note 61, at 2.

Id. at 3.

Margaret E. Montoya, M´ascaras, Trenzas, y Gre˜nas: Un/Masking the Self While Un/

Braiding Latina Stories with Legal Discourse, 17 H

ARV

. J. L. & G

ENDER

185, 196 (1994).

I. Bennett Capers, The Law School as a White Space, 106 M

INN

. L. R

. 7, 41 (2021).

RENSHAW

, supra note 61, at 3.

See Jean Koh Peters & Susan Bryant, Talking About Race, in T

RANSFORMING THE

DUCATION OF

AWYERS

: T

HEORY AND

RACTICE OF

LINICAL

EDAGOGY

375, 376

(Susan Bryant, Elliott S. Milstein, Ann C. Shalleck, eds., 2014).

Id.

220 CLINICAL LAW REVIEW [Vol. 30:205

Perpetuating the whiteness of the tech sector generally and of

technology law specifically does further harm in at least two ways.

First, it reduces the opportunities available to individual students of

color who may be deterred by certain career paths they perceive to be

surrounded by toxicity or hostility. Second, it reduces the entire field’s

ability to fully understand and address the racial justice implications

of real-world applications of technology law.

III. H

OW TO

IRE

ECHNOLOGY

LINICS FOR

ACIAL

USTICE

: A S

TARTING

OINT

I offer three suggestions for technology law clinicians interested

in integrating racial justice into their clinics. These suggestions are

largely informed by various helpful conversations with generous col-

leagues.

I offer these suggestions with humility, as a possible starting

point. I invite my fellow technology law clinicians to continue to main-

tain an open dialogue about different approaches we try, mistakes we

make, and what we learn about how to do this well.

First, technology law clinicians should approach racial justice with

reflectiveness and a growth mindset. Second, we should establish stu-

dent expectations regarding racial justice in our clinics and invite and

embrace difficult dialogue about race. And finally, we should apply a

racial justice lens to client and case selection, client counseling, semi-

nar, clinic operations, and the structure of our institutions.

A. Approach Racial Justice with Reflectiveness and a

Growth Mindset

Clinical colleagues I spoke with welcomed the discussion and

readily offered reflections both on ways they were effectively advanc-

ing racial justice through their clinical work, as well as on challenges

they struggle with and have not yet figured out how best to approach.

All seemed to exhibit a growth mindset and to illustrate that racial

See Valentin, supra note 71 (“[N]o matter how much James Baldwin one has read or

how many times they visited the Blacksonian (National Museum of African American His-

tory and Culture), if someone is not a person of color, they are likely to lack the experience

to find policy solutions that positively impact communities of color.”).

I conducted interviews with faculty from other technology law clinics in May. In

June, I facilitated a discussion session on racial and social justice at a retreat of approxi-

mately twenty tech law clinicians, during which participants engaged in small group discus-

sions focusing on the contexts of casework, institutions, and pedagogy, then reported back

to the large group. Some of the goals of these interviews and discussions were to hear tech

law clinicians’ thoughts on why tech law clinics should incorporate racial justice into

clinical practice and pedagogy; how they do or could do this; what questions and concerns

they have at the intersection of technology law clinics and racial justice; and what sup-

port(s) they would like to see from peers, within the broader technology law clinic commu-

nity, or from their institutions. Notes on file with author.

Fall 2023] Tech Support 221

justice can and should be taught along with an openness to vulnerabil-

ity, mistakes, and growth. We can and should approach conversations

about race honestly, with acknowledgement of our own imperfections

and room for growth and with an openness to reflect and learn.

Many of us find it challenging to be fully vulnerable when it

comes to race-related discussions. One common barrier for clinicians

interested in more fully integrating considerations of racial justice and

equity into our clinics is that we feel we lack expertise and/or fear that

we will get it wrong. Deborah Epstein documented this several years

ago when she reported that in the context of clinical supervision

rounds, clinicians “gained insight into their own tendency to avoid fo-

cused discussion about issues involving race. Whether conscious or un-

conscious, this tendency resulted in supervision conversations that

started out including race as a factor, but quickly shifted to less politi-

cally charged ground.”

We must not shy away from inviting explicit and sometimes diffi-

cult discussions of race in our clinics out of fear of imperfection;

rather, we should remind ourselves and our students that we are

works-in-progress.

Learning is a lifelong journey, making mistakes is

an unavoidable part of this process, and reflection and growth are an

integral part of the clinic experience.

We can start by openly acknowledging to ourselves and our stu-

dents that we are not perfect. Writing about how to facilitate difficult

race discussions, Derald Wing Sue, a professor of psychology and edu-

cation at Columbia, states that “instructors must be able and willing to

acknowledge and accept the fact that they are products of the cultural

conditioning in this society, having inherited the biases, fears, and ste-

reotypes of the society.”

Facilitating and teaching reflectiveness—cultivating what Donald

Sch ¨on referred to as the “reflective practitioner”—is already a central

part of what we do as clinicians.

Indeed, the clinical model is

Deborah Epstein, Beyond the Classroom: Applying the Stages of Rounds Structure to

Analysis of Clinical Supervision, in T

RANSFORMING THE

DUCATION OF

AWYERS

: T

HEORY AND

RACTICE OF

LINICAL

EDAGOGY

162, 166 (Susan Bryant, Elliott S. Mil-

stein, Ann C. Shalleck, eds., 2014).

See D

OLLY

HUGH

, T

ERSON

EAN TO

: H

OOD

EOPLE

IGHT

IAS

(2018).

ERALD

ING

, F

ACILITATING

IFFICULT

ACE

ISCUSSIONS

: F

IVE

NEFFEC-

TIVE

TRATEGIES AND

IVE

UCCESSFUL

TRATEGIES

4, https://www.colorado.edu/center/

teaching-learning/sites/default/files/attached-files/facilitating_difficult_race_

discussions.pdf.

See Richard K. Neumann, Jr., Donald Sch ¨on, the Reflective Practitioner, and the

Comparative Failures of Legal Education, 6 C

LIN

L. R

. 401 (2000); D

AVID

F. C

HAVKIN

LINICAL

EGAL

DUCATION

: A T

EXTBOOK FOR

CHOOL

LINICAL

ROGRAMS

(2002) (“we hope to help you develop into a practitioner who has a reason for every choice

s/he makes and a process for making and implementing those choices that includes critical

222 CLINICAL LAW REVIEW [Vol. 30:205

founded on the belief that it is important for one to engage in a prac-

tice before they feel like they know everything in order to generate

opportunities to try various approaches, to make mistakes, and to

learn through reflection.

As teachers and scholars with packed schedules, we are not al-

ways as generous in carving out the time and space for ourselves to

conduct and grow from self-reflection as we are for our students.

But we can best tackle challenging practice and pedagogy issues, such

as those at the intersection of racial justice and technology law, with

an intentional practice of reflectiveness, which we have an important

opportunity to model for our students.

As studied by Sch ¨on, most

professional work starts in a state of confusion and indeterminacy, and

it is through “reflective conversation with the situation” taking place

“in the midst of action” that professional problems are solved, and

learning and growth happen.

B. Establish Student Expectations and Invite and Embrace

Difficult Dialogue

Many technology law clinicians asserted the importance of telling

students upfront that clinic would address race explicitly and directly,

as well as of establishing ground rules to facilitate difficult dialogue in

seminar, casework, and supervision.

Much has already been written both about the value of establish-

ing expectations and ground rules regarding difficult dialogue and

about how to do it. Indeed, Jean Koh Peters and Susan Bryant have an

entire chapter on the topic of “talking about race” in T

RANSFORMING

THE

DUCATION OF

AWYERS

I will not recapitulate here that en-

tire chapter, which is full of rich insights and advice, but will say only

that Peters and Bryant break conversations about race into “a four-

part process: (1) inviting the conversation early, (2) normalizing con-

versations about race, (3) introducing key critical race theory con-

reflection through every step of your professional career.”).

Susan Bryant & Elliott Milstein, Chapter Six – Rounds: Constructing Learning from

the Experience of Peers, in T

RANSFORMING THE

DUCATION OF

AWYERS

: T

HEORY

AND

RACTICE OF

LINICAL

EDAGOGY

113, 120 (Susan Bryant, Elliott S. Milstein, Ann

C. Shalleck, eds., 2014).

See Epstein, supra note 81, at 166 (“We routinely ask our students to make them-

selves vulnerable; we require them to perform simulated lawyering tasks in front of their

colleagues, to request and absorb critique, or to share their reflections on what they might

have done differently after a lawyering “performance.” But as teachers, we ourselves are

rarely called upon to do the same.”).

I discuss some of the specific tactics that can be adopted to this end infra in Section

III.C.

Neumann, supra note 84, at 405–407.

Peters & Bryant, supra note 77, at 377.

Fall 2023] Tech Support 223

cepts, and (4) including updated information about the historical and

current role of race in the field.”

Racial equity expert and strategist Glenn Singleton refers to can-

did dialogue about race as “courageous conversations,” and has writ-

ten multiple books on the practice of courageous conversation.

2006, Singleton and Cyndie Hays articulated four guidelines for edu-

cators to facilitate courageous conversation: “They must stay engaged,

expect to experience discomfort, speak their truth, and expect and ac-

cept a lack of closure.”

Beyond attempting to abide by these general guidelines, many of

us find it fruitful to establish more specific rules for students to follow

in in-class discussion. A simple online search generates many exam-

ples of ground rules for difficult dialogue that clinicians can adapt and

add to for their own purposes. In my own clinic, I use discussion

ground rules that I initially compiled in this manner and that I modify

slightly each semester based on feedback from students and teaching

fellows. A few examples of rules on the list:

• The purpose of in-class discussion is to share and understand

perspectives, not to win arguments.

• We will trust each other to engage in this conversation in good

faith and with respect for one another.

• You are not being evaluated for the correctness of your in-

class opinions.

• You are not required to speak during in-class discussion about

topics that are emotionally challenging. Please do not feel

pressured to speak and do not pressure others to speak.

• Only one person should speak at a time. When someone is

speaking, everyone else should focus on listening to them.

One technology law clinician I spoke with asks students to use the

Oops!/Ouch! framework in discussions.

Students are encouraged to

communicate when something someone else says harms them (the

Id.

See G

LENN

E. S

INGLETON

& C

URTIS

W. L

INTON

, C

OURAGEOUS

ONVERSATIONS

BOUT

ACE

: A F

IELD

UIDE FOR

CHIEVING

QUITY IN

CHOOLS

(2005); G

LENN

INGLETON

, M

ORE

OURAGEOUS

ONVERSATIONS

BOUT

ACE

(2012).

LENN

E. S

INGLETON

& C

YNDIE

AYES

, B

EGINNING

OURAGEOUS

ONVERSA-

TIONS

BOUT

ACE

at 19 (2006).

There are numerous resources readily available explaining the Oops!/Ouch! frame-

work. See, e.g., J

REVI

, D

IVERSITY AND

NCLUSIVENESS IN THE

LASSROOM

7 (last

visited Sept. 11, 2023); Kristina Ruiz-Mesa & Karla M. Hunter, Best Practices for Facilitat-

ing Difficult Dialogues in the Basic Communication Course, 2 J. C

OMMC

’

EDAGOGY

134,

137–38 (2019); Annaliese Griffin, Three Words You Need for Your Next Hard Conversa-

tion: Oops. Ouch. Whoa., M

EDIUM

(Aug. 10, 2020), https://forge.medium.com/three-words-

you-need-for-your-next-hard-conversation-a3e2090d043d.

224 CLINICAL LAW REVIEW [Vol. 30:205

“ouch”). In response, students who have harmed someone else

through something that they have said are encouraged to acknowl-

edge the harm that they have done (the “oops”). Under this frame-

work, students have the opportunity to grow their communication and

empathy skills and are invited to embrace and learn from missteps.

C. Incorporate a Racial Justice Lens into Cases, Operations,

Seminar, and Institutional Structure

On the specific mechanics of addressing racial justice in technol-

ogy law clinics, colleagues I spoke with described practices falling into

five areas of clinic activity: client and case selection; client counseling;

seminar; clinic operations; and the broader institution.

Applying a racial justice lens to client and case selection and plan-

ning. Many technology law clinicians I spoke with intentionally select

clients and cases that have a clear connection to racial justice. One

colleague pointed out that the ability to exercise discretion in selecting

clients and cases—something many technology law clinics can do—is

a privilege that many clinics do not have. As a result, there is a risk

that some technology law clinicians could become disconnected from

the social justice roots of clinical legal education unless they make an

intentional effort to take on cases that, in the words of William Pincus

and Peter deLancey Swords, help students “learn to recognize . . .

what is wrong with the machinery of justice in which [they are] partici-

pating and for which [they have] a special responsibility.”

There are different ways to do this. Technology law clinicians can

seek out clients with a racial justice mission. They can build racial eq-

uity analysis into the legal, factual, and policy analysis that they con-

duct on cases. And even when they take on a case with unclear racial

justice implications for a client with no particular racial justice mis-

sion, they can include questions about racial justice in their client vet-

ting process and language about racial justice counseling in their

engagement letters.

Applying a racial justice lens to client counseling. Many technol-

ogy law clinicians I spoke with also talked about the importance of

cultivating students’ racial justice awareness and facility in client inter-

actions, especially those across racial and cultural differences. One

colleague opined that technology law clinicians do not talk enough

about power dynamics in the context of lawyering their cases.

Technology law clinicians may consider applying and/or assigning

helpful pieces on lawyering across differences, such as People from

The Footnotes: The Missing Element in Client-Centered Counseling by

Pincus & Swords, supra note 53.

Fall 2023] Tech Support 225

Michelle Jacobs,

The Five Habits: Building Cross-Cultural Compe-

tence in Lawyers by Susan Bryant,

or Client as Subject: Humanizing

the Legal Curriculum by Eduardo R.C. Capulong.

Applying a racial justice lens to seminar. Technology law clinicians

emphasized the importance of using seminar time to help students

gain insight into racial justice lawyering in the technology context.

Colleagues specifically mentioned holding seminar sessions on—

among other things—differences and cross-cultural competency, abo-

litionism vs. reformism, and racism in the legal profession. One col-

league recommended making an effort to weave racial justice into

every seminar session in one way or another, stating that even though

this may feel like overdoing it, it is important for concepts to be re-

peated over and over for students to internalize them. This colleague

pointed out that racial justice does not have to be the explicit focus of

seminar every time but could sometimes merely feature in related

readings.

Technology law clinicians also should interrogate assigned read-

ing and resource lists to ensure that seminar materials include the per-

spectives of people of color and people hailing from other historically

marginalized communities. This will sometimes require effort to ac-

complish—as discussed above, the tech sector is disproportionately

white and male, and white male voices often dominate media cover-

age and public discourse about technology.

Applying a racial justice lens to clinic operations. One colleague

stressed the importance of ensuring that clinic faculty, staff, and stu-

dents do not actively perpetuate harm by their interpersonal interac-

tions. Several colleagues observed that our clinics tend to skew even

more disproportionately white than law school clinics in general, and

one expressed concern that people who notice this about our clinics

may erroneously conclude that the issues addressed by technology law

clinics belong only to certain groups or certain types of people. Those

I spoke with universally asserted that we can and should do more to

ensure technology law clinics are not hostile places for people of

color.

Technology law clinicians advocated several approaches to sup-

port this goal. Many said that we can make a greater effort to attract

and retain staff and faculty of color for our clinics. Technology law

Michelle Jacobs, People from the Footnotes: The Missing Element in Client-Centered

Counseling, 27 G

OLDEN

ATE

U. L. R

. 345 (1997).

Susan Bryant, The Five Habits: Building Cross-Cultural Competence in Lawyers, 8

LIN

. L. R

. 33 (2001).

Eduardo R.C. Capulong, Client as Subject: Humanizing the Legal Curriculum, 24

LIN

. L. R

. 37 (2016).

226 CLINICAL LAW REVIEW [Vol. 30:205

clinics also should ensure that faculty and staff are trained to recog-

nize and avoid common features of harmful interpersonal interactions,

such as microaggressions,

white saviorism,

and racist conceptions

of “professionalism.”

100

Applying a racial justice lens to institutional structure. Several col-

leagues also pointed out that there is also a role for law schools to play

at the institutional level to support the racial justice work of technol-

ogy law clinics. Some law schools offer a cross-clinical critical theory

course co-taught by multiple clinical faculty and available only to stu-

dents enrolled in clinics. Some law schools have training sessions and/

or supervision rounds for clinicians to discuss and reflect on their

practices and learn from one another. Some law schools intentionally

recruit non-tenure-track instructors to direct and staff clinics, in part

so that clinical teaching is more accessible to practitioners from di-

verse backgrounds. Other law schools maintain hard-won unified ten-

ure standards for clinicians, in part so that tenured clinical faculty

have the support and security to take risks with their pedagogy and

practice.

ONCLUSION

Technology and technology law are inextricably linked to social

and racial justice. As clinical legal educators, we have a responsibility

to ensure that we are helping our students to understand this link and

to develop the legal and professional tools to evaluate and advance

justice in the course of their careers. We can fulfill this responsibility

by embracing an approach to racial justice with reflectiveness and a

growth mindset, by inviting and embracing difficult dialogue about

race, and by applying a racial justice lens to client and case selection,

client counseling, seminar, clinic operations, and the structure of our

institutions. I am grateful to my fellow technology law clinicians for

sharing thoughts on this topic with me, and I call on us all to continue

to maintain a candid and fruitful dialogue about what we are learning

along this journey.

See Derald Wing Sue, Christina M. Capodilupo, Gina C. Torino, Jennifer M. Bucceri,

Aisha M. B. Holder, Kevin L. Nadal, & Marta Esquilin, Racial Microaggressions in Every-

day Life: Implications for Clinical Practice, 62 A

MER

. P

SYCH

. 271 (2007).

See Janice Gassam Asare, What Is White Saviorism and How Does It Show Up in

Your Workplace?, F

ORBES

, Sept. 30, 2022, https://www.forbes.com/sites/janicegassam/2022/

09/30/what-is-white-saviorism-and-how-does-it-show-up-in-your-workplace/.

100

See Kendra Albert, Care, Not Respect: Teaching Professionalism (July 15, 2021),

https://kendraalbert.com/2021/07/15/care-not-respect-teaching-professionalism.html.