Law Schools

This Is One Of The Dumbest Law School Exams Ever... But At Least It’s Also Racist

Students are asked to go back in time and defeat Brown. That's... not cool.

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New York World-Telegram & Sun Collection/Library of Congress, Washington, D.C. (digital file no. cph 3c27042)

Con Law students at the University of Texas sat down for Professor Richard Albert’s 1L exam and were met with a bunch of multiple choice questions and one essay question, asking students to imagine themselves as counsel to the Governor of Kansas in 1954 and write 1000 words outlining the best legal arguments to defend segregation in the Brown case.

Defending… segregation.

What kind of shitty exam is this? They have one Equal Protection essay question… and that’s it? If you aren’t rolling with at least one issue spotter that requires passing understanding of the dormant commerce clause, demand your tuition back. And what’s with the multiple choice? Are we trying to forge lawyers or accountants? Make them draft legal arguments that engages all the material! And that’s before we get to the fact that the only essay requires students to expound upon the Equal Protection Clause… the wrong way.

Conservative blog Misrule of Law, in trying to defend the professor’s question, characterizes this exam as teaching students to “think like a lawyer.” This may be a perfectly noble sentiment, but it’s a red herring — this question doesn’t teach a law student to think like a lawyer any more than asking a student how they would balance the humors would teach someone to “think like a doctor.” Even if we pretend there’s a good argument against the holding in Brown — like Trump’s judicial nominees do (but don’t ask them about it or it hurts their precious feelings!) — what value does a student get from cobbling together legal precedent as it stood in 1954? That doesn’t make for an interesting debate, it’s just dumb.

The purpose of an exam is to test the students’ grasp of the material. Was this professor spending valuable lecture time drilling down on Plessy and its progeny? Because that would be a waste of time.

But even if the question asked students to prepare a memo for a hypothetical state defending itself TODAY against a claim that its policies have produced de facto segregation in violation of Brown — which at least approaches substantive worth — it’s still of dubious value.

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Defenders of this question might argue that attorneys don’t always know which side of an issue they’ll have to defend and should be ready for all angles. That’s some sepia-toned “generalist” nonsense. Half of these students are going to draft contracts for the rest of their lives and never breathe on any of these issues. For the rest, they aren’t all hanging a constitutional law shingle somewhere — they make professional choices. They choose where they work and what kind of work they want to do. It’s not a quirk of fate that decides if someone ends up at the NAACP or the Sessions DOJ. Even those committed to private sector practice will turn down high-profile work to protect their professional brand. Learning to strategically consider both sides of an issue may be pedagogically valuable, but only to the extent it allows an advocate to sharpen the argument they want to make. If a student rips de facto segregation in a hypothetical with a stirring defense of Brown but utterly fails to square Milliken or something, then they’ve failed because they didn’t understand the other side’s argument. They don’t necessarily need to play act as Orval Faubus to demonstrate their grasp of the issue, they just need to treat the question with the respect an advocate would and show their grasp of contrary arguments.

Unless, of course, the purpose of the exam is just to ride a right-wing ideological hobby horse. In that case, the exam succeeds brilliantly. Professor Albert is himself a black man, which his defenders point to as total absolution from responsibility here in a twist on the classic “I’ve got black friends” argument. That Albert, a professor who lent his credibility to the conservative argument for hijacking the Supreme Court for a year, thinks it’s perfectly reasonable to ask students to defend segregation doesn’t make it reasonable that other black people would want to spend their afternoon, with their grade hinging on it, preparing a systematic takedown of their own equal rights.

There’s never a question that could disadvantage white students like this. And as much as right-wingers like to play with the anti-“snowflake” bravado, we all know we’re five minutes away from hearing their complaints about a Women’s Studies professor asking a question that supposedly “discriminates” against white men. Which is the true snowflaking because to face that hypothetical exam, a student would have to TAKE a course on feminism, meaning they’ve opted into being tested on that subject. There’s nothing about Con Law that suggests you’re going to be tested on overruling civil rights.

A white student, labeled a “social justice warrior” — which is supposedly derogatory even though those three words in that order are definitionally a good thing — raised a complaint with the exam, noting that he was “shocked and disgusted” by the question. Fair enough. A minority student responded echoing the problems with the exam as structured, but also noted for the white students that “because it is not your experience, it is not your place to take charge of the dialogue without consulting the individuals who are actually impacted.”

This is an important distinction. Yes, as discussed above, this isn’t really white struggle here. On the other hand, coming off a week where Shaun King accurately called out the inaction of white bystanders in the Schlossberg video who refused to exercise their relative privilege to do something about the tirade, this Texas student deserves credit for saying something. This is just one of those reminders that white people can and should be ready to say “that’s racist” but they can’t frame it as though they own that outrage. White people have to be comfortable with their role as the permanent sidekick of racial justice. Embrace being Robin on this one. Sometimes Batman needs help… usually Batman can handle it on his own.

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Responding to the controversy, Albert has offered any student who wishes the option of doubling their multiple choice grade and ignoring the essay. That’s probably all that can be done at this point, but it’s still regrettable that a bunch of students will be left with a multiple choice test as their only grade in a core class.

But that’s what happens when you write terrible exams.

The Snowflakes Take Charge at UT Law School: Political Correctness Trumps Pedagogy in Constitutional Law I [Misrule of Law]

Earlier: Originalists Do Not Think Segregation Was Unconstitutional, And Wish You’d Stop Bothering Them About It
Asking About Brown v. Board Is ‘Gutter Politics,’ According To Senate Judiciary Official

HeadshotJoe Patrice is an editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news.

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