By Elizabeth Stillman,¹ Associate Professor of Academic Support, Suffolk University Law School

Success in law school, like in any form of higher education, requires that students feel a sense of belonging. Belonging “refers to students’ perceived social support on campus, a feeling or sensation of connectedness, and the experience of mattering or feeling cared about, accepted, respected, valued by, and important to the campus community or others on campus such as faculty, staff, and peers.” 

Recently (although not recently enough), law schools have increased efforts to make, maintain, and welcome students from diverse and inclusive communities. Some of these efforts, like appointing diversity, equity, and inclusion (“DEI”) deans and administrators and offering scholarships to graduates of historically black colleges and universities (“HCBUs”) have been highly successful, visible, and encouraging. Welcoming a more diverse and inclusive class of students each year is a significant and achievable goal that benefits every member of the legal profession —and everyone else. In Grutter v. Bollinger, Associate Justice Sandra Day O’Connor (the first woman Supreme Court Justice) wrote, “Access to legal education (and thus the legal profession) must be inclusive of talented and qualified individuals of every race and ethnicity, so that all members of our heterogeneous society may participate in the educational institutions that provide the training and education necessary to succeed in America.”

Yet once students enter law school, is the curriculum truly inclusive? According to the 2020 Law School Survey of Student Engagement (“LSSSE”) “one out of every five (21%) law students who is Native American, Black, or Latinx notes that they do not ‘feel comfortable being myself at this institution.’” Even more troubling, students who are not White men reported that they feel less welcome, valued, and part of the community at law school. Students of color also felt that their schools were less supportive of their racial and gender identities and less likely to create an environment that is free of stigma because of those identities. Essentially, law schools’ doors are open to more diverse student bodies, but those welcomed may be obscured.

In the United States, most law school programs have been shaped by the Harvard method, developed in 1870, in which professors use casebooks as the main text to illustrate points and call on students using the Socratic method. According to Professor Robert W. Gordon:

One of the reasons for the case method’s success (besides its evident pedagogic virtues—it encouraged active rather than passive learning, and it tested that learning through participation in dialogue as well as exams) was that published casebooks gave novice teachers a ready-made, off-the-rack set of teaching materials and method of instruction.

This is still the template for most law school curricula over 150 years later. If law schools are essentially only using cases to teach law, the question then becomes: Which voices are amplified in the law school curriculum? The case method, which primarily involves teaching from casebooks, seems to amplify voices shaping legal theory that were, until relatively recently, made up of almost entirely of White male judges. The Lawyers Committee for Civil Rights Under Lawhas written:

According to the Census, around 40 percent of the U.S. population consists of people of color. However, only around 26.5 percent of active judges in Article III courts are judges of color. The same disparities hold true for gender. Around half of the people in the United States are women, yet they only make up around 33 percent of active judges in Article III courts. The lack of diversity extends beyond the federal judicial courts. The same trends are present at the state level, where only 15.5 percent of judges, as of February 2020, on state supreme courts are people of color.

While the current makeup of the federal judiciary is more diverse than it has been historically, this welcome change has not yet noticeably changed law school curriculum. Presidents Carter, Clinton, and Obama notably appointed more people of color as federal judges. As recently as March 2021, the House of Representatives held a hearing about the importance of diversity in the federal judiciary. President Biden is also, fortunately, doing better than past administrations. But this is not enough. Most seminal law school cases, the ones my students will recite many years later (International Shoe, anyone?), were written by White male judges. However, this is more a self-imposed restriction on resources because there are many ways to increase representation in the curriculum.

Though law school admissions offices are welcoming more diverse and inclusive student bodies, faculty members may be undermining their best efforts by not considering amending their curricula. Betty Leask and Hans de Witt explain how the concept of a “hidden curriculum” may shape the unconscious values and beliefs which determine which content is selected for coverage in the classroom:

The “hidden” curriculum refers to those incidental lessons that are learned about power and authority through the way in which content is selected and activities are organized. It includes lessons about whose knowledge, as well as what types of knowledge, are valued and not valued. The hidden curriculum is shaped by the unconscious values and beliefs which determine what content is selected, how learning outcomes are described and learning activities are organized and what skills and knowledge are assessed.

Hidden curricula in law school courses encompasses more than what happens in the classroom: They influence models of leadership and “lawyer-like” behavior. If what students read in law school come from judges who do not resemble them, then students do not feel welcomed—even if admissions offices have opened the door for an increasingly diverse student body. The student body is the ultimate reflection of who law schools’ value—as institutions with power and authority.

My contribution to shift away from the hidden curriculum my students encounter is using the Creating a Respectful and Open World for Natural Hair (CROWN) Act module as the primary teaching tool in a semester-long course required for students on Academic Warning and/or Probation. The CROWN Act is a law that prohibits race-based hair discrimination, which is the denial of employment and educational opportunities because of hair texture or protective hairstyles including braids, locs, twists, or bantu knots. At this time, there are 11 states and 31 municipalities that have codified a CROWN Act.

The first class is an introduction to the CROWN Act through various types of media and showing why there is a need for it. I show several videos like Hair Love. This is a beautiful animated short. There is also a wonderful John Oliver segment on the CROWN Act that is worth the class time. I show videos from our local news to illustrate how this is a real issue in our jurisdiction. In class two, we simulate the Massachusetts state legislature using the CROWN Act bill that was introduced in 2020 after discussing how courts read statutory language. We then spend class three looking at the case law with particular emphasis on an aptly named case, EEOC v. Catastrophe. This case distinguishes between hair styles and natural hair.

Finally, I introduce our simulation, which is an employment case (completely made up) and we attempt to resolve the issue using the Massachusetts Commission Against Discrimination (“MCAD”) process. We read cases that have gone before the MCAD and determine their burdens and standards of proof as well as strategies of proof that seem to work well in similar cases. After this introduction to the topic, law, and procedure, students are tasked with drafting a complaint and writing a supporting memorandum. The intended obstacle students encounter at this stage of the process is that the simulation takes place in Massachusetts and Massachusetts has not passed the CROWN Act bill that we had discussed in class two.

The students in this class represent a more racially diverse class than other classes in law school, which should not be an unspoken truth. This class does not in any way reinvent how we teach the skills/doctrine of how legislation works from the point of the view of legislators and courts or how to draft a complaint for a state agency following that state’s rules. This class reinforces the skill of looking at cases decided at the agency level for critical facts and also provides a comprehensive review of memo drafting that includes rules synthesis and broad analogies. Yet, the most important thing that I teach is how to make a case for a client where there is no statutory law or even good case law, but the discrimination is real. While most of this is standard fare in law school teaching, I hope that the difference is that students will learn something completely new and see an issue that they might have otherwise ignored. I want students to know that there is a gap in our legal system in this space and that we must either bridge it or work around it for our client. Just this revelation—the law as written and practiced is not protective of everyone—is something I don’t think is taught intentionally in our traditional 1870’s era formal curriculum. 

My goals for teaching using the CROWN Act are that students feel connected to our client and see that an authority figure at their law school thinks that this is an important, valued, accepted, and respected endeavor. This shifts the hidden curriculum so that when we say we are an inclusive and diverse community; it is even more meaningful because more students can feel that they belong. When everyone belongs, success is a team sport.

1. Liz Stillman is an Associate Professor of Academic Support at Suffolk University Law School. She also teaches in the Political Science and Legal Studies department at Suffolk University’s College of Arts and Sciences. She is a weekly contributing editor to the AASE Law School Academic Support Blog and previously practiced as an Assistant Corporation Counsel in the Family Court Division of the New York City Law Department.