A Mild Defense Of The Dumbest Law School Question Ever

Yes, the UT Law exam question about Brown v. Board of Ed. was dumb and offensive, but maybe that's okay.

Yesterday, we talked about the University of Texas Law School exam where students were asked to analyze Brown v. Board of Ed. and write a defense of segregation. Joe Patrice explained well why the question was dumb and offensive, and I concur in his judgement.

But I write separately to expound on one aspect of this issue, and in so doing offer a mild justification for asking the question in the first place. Please note, if you are a white supremacist looking for support in your racist and intellectually soft attacks on “social justice,” you’ve come to the wrong place. Return forthwith to your FedSoc enclave where your white fragility can be again soothed and further weaponized against people of color.

For those still here, Joe wrote a line that demands further inquiry. He said: “There’s never a question that could disadvantage white students like this.” This is true, but maybe not obviously so. It’s important to understand why asking a black student to argue against Brown disadvantages them differently than any white student can be disadvantaged, and differently than pretty much any other law school question can.

It is nearly impossible to be even a moderately educated African-American and not know about Brown v. Board of Ed. The case might not ring out to black people from other countries, it might be just one of many Supreme Court cases white Americans have heard of in passing, and I weep for the uneducated brothers who don’t know their own history. But for a well-schooled African-American, you’ve heard about this case for as long as you’ve known what a “lawsuit” is.

Brown is WHY YOU GET TO GO TO SCHOOL! George Washington didn’t do shit for you. Lincoln would have sent your ass back to Africa. The Constitution, even as amended, would have kept you in the back of the bus. Brown v. Board of Ed. are the MAGIC WORDS that allow an educated black person to BECOME educated.

My mother was born in 1950 in Mississippi. She suffered segregation. The opportunities available to me in my life were not available to her in her life. The reality of that struggle does not come to me from a history book. I didn’t only learn it from Eyes on the Prize. Her history is part of my history. And my history is simply not possible without Brown.

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There is no white equivalent. There is no simple document or freaking legal proceeding that marks the DEMARCATION LINE between your white mother being allowed to go into a library… OR NOT. You have not gone to your mother’s hometown and noticed the blunted but still visible “white’s only” inscription carved over the water fountain your crying mother is now demanding that you drink at. You’ve not tasted that bitterness.

And you don’t have to walk around knowing that your very freedom and ability to walk around as an equal hangs precariously on a couple of lines of constitutional interpretation. You do not take seriously the fear that those interpretations are constantly under attack, that there are whole “societies” that have been created and funded solely to chip away at the few judicial lines standing between you and bondage. That which is an intellectual curiosity to the white man is a multi-generational project to a black family.

Educated black people like me come to law school with all of that… baggage. We already know how important some of these cases are, and most of us are in law precisely because we’ve been told that the law is the KEY to securing our people’s freedom in the future. White people cannot be trusted to leave us alone, and we are too few in number to win a fight of military conquest, so the law becomes the first AND LAST line of defense against the obvious forces arrayed against us.

So you go to law school, you learn the ways white people have set up the system. You smile politely as some professor tells you to respect the learned precedent of dead white men. You resist the urge to punch out the FedSoc pissant DARES to tell you that the “original intent” of slaveholding rapists is somehow important.

You finally get around to Constitutional Law after a semester or two of learning to “think like a lawyer.” You finally get around to Brown v. Board of Ed., the case you KNOW has made your intellectual life possible.

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And you’re confronted with… dolls. Fucking dolls? You’re expecting a full-on body-slam of Plessy, a rousing re-orienting of the 14th Amendment, a clear declaration that the Constitution simply will not allow a people to be humiliated because of the color of their skin and you get “kids didn’t like the black doll… and so we should desegregate, at whatever time seems best to you, if you don’t mind.”

It’s… hard. Brown reaches the right conclusion, but not in the rousing, Braveheart-shouting-FREEDOM, way that one might have hoped. It’s an easy case to square with the 14th Amendment, but a difficult case to square with the kinds of cases most first year law students are used to reading by that time. For many 1Ls, Brown is the first case they’ve read where any kind of “science,” is used at all. It’s not an “easy” read, because even its authors aren’t actually sure how far reaching they intend the decision to be.

It is in this context that the white supremacists come at you. Even as a 1L, you’ve already identified the racists in your class. They’re never as “subtle” about it as they think they’re being, especially not now when the President of the United States tells them that their bigotry is okay and something to be proud of. But now, under guise of “academic discussion,” they raise their hands and start slamming the most important decision of your life. Suddenly, you become Thurgood Marshall. Suddenly it’s your responsibility to defend YOUR WHOLE ENTIRE PEOPLE. Only you’re don’t have Marshall’s training and experience. It takes professorial chops to really get in there and defend Brown v. Board of Ed. without devolving into outcome-based arguments. And… you know what, outcome-based arguments are totally fine, but you’re a 1L and you don’t really know that yet since your whole year has involved predominately white professors subtly pissing on outcome-based arguments.

You fumble a bit but do your best, but now this case, this beautiful case that you were excited to learn about more deeply a few weeks ago becomes something you’d just rather move on from.

Now the exam comes around and the professor not only brings Brown up again, but actually has the gall to ask you, the African-American student, to piss all over it in order to prove that you can achieve some Zen level of detachment from the inputs that have led to your life. “Unfair,” doesn’t begin to describe asking this kind of question on a law school exam. It’s a straight-up example of structural racism against African-Americans.

I defend the question only insofar as: African-American law students do in fact have to learn how to deal with racism deployed against them in an academic setting. This is my auntie-who-shares-her-joint argument of “better they learn it here than on the streets.” The Brown question shocks the conscience because it’s a kind of bias that is easily avoidable. But other forms of bigotry are not so easily identified… and yet the black person in America better learn to deal with all of it, lawyers included.

There will be questions that are harder for you to answer than your white colleagues, but also your whole life will be harder for you to prosecute than your white colleagues. It already has been to even get to law school, it will continue to be that way once you graduate. Law school isn’t here to “level” shit. The law is itself another form of oppression, black law students simply have the opportunity to see that oppression up close and maybe learn various ways of fighting it.

Again, it’s not fair. And if it were me, I’d find a way of teaching black students these lessons without writing a biased final exam.

But even on that exam question, African-American students have the opportunity to make the first of many choices that will define their legal careers. On that exam, you didn’t have to defend segregation. Yes the professor asked you to do it, and it’s his class, but you could have told him to go f**k himself. You could have refused to answer the question, and explained why. Or you could have responded with the most stirring defense of Brown you could muster, question prompt be damned.

Might the professor have docked your grade or even failed you? Sure. But, you know, sometimes if you really believe something, you take the L. Our ancestors sacrificed far more than a funky grade to speak their truth to power. I lost a third of a grade on a freaking torts exam because I refused to parrot some law and economics nonsense the professor wanted me to regurgitate. F**k him. I didn’t get all the way to law school so I could ape Richard freaking Posner.

Or maybe defending segregation doesn’t bother you. That, too, is a choice. That is also something worth learning about yourself. I know a lot of black people who thought they could take the money offered by Biglaw, and represent the clients who support Biglaw, “for a couple of years to pay off some debt,” before leaving to do “social good.” So many of them found the Faustian bargain untenable and either left Biglaw (ahem), or find themselves stuck and miserable. How happier would some of these people be if they had learned in law school that, when the chips are down, you cannot fix your mouth to say any old damn argument just because it suits the person who wants you to make it.

And frankly, the brothers who have learned that they don’t give a damn who they advocate for as long as the check clears are happier for that knowledge too.

That’s all I’ve got by way of defense. The process of answering, or not answering, unfair questions still can have value to the African-American law student, even if asking the question puts the African-American law student at a disadvantage against his or her peers.

The struggle is real.

This Is One Of The Dumbest Law School Exams Ever… But At Least It’s Also Racist [Above the Law]


Elie Mystal is the Executive Editor of Above the Law and the Legal Editor for More Perfect. He can be reached @ElieNYC on Twitter, or at elie@abovethelaw.com. He will resist.