if these blackboards could talk: the crit classroom, a battlefield

IF THESE BLACKBOARDS COULD TALK: THECRIT CLASSROOM, A BATTLEFIELD

Anibal Rosario-Lebr6n*

I. INTRODUCTION: DISCOVERY OF A CRIT-TEACHER..305II. IMPRISONED IN THE CAVE: CRITICAL LEGAL

EDUCATION DEFINED .................................................... 312III. FREED FROM THE CAVE: TOWARDS A CRITICAL

LEGAL DIDACTIC METHODOLOGY .............................. 316IV. RETURNING TO THE CAVE: UNDERSTANDING THE

CHALLENGES TO CRITICAL PEDAGOGY .................... 328V. CONCLUSION: EMBRACING CONFRONTATION .......... 333

I. INTRODUCTION: DISCOVERY OF A CRIT-TEACHER

"You hear it said that fathers want their sons to be what theyfeel they themselves cannot be, but I tell you it also works theother way."1

With those simple words in one of the most heartfelt self-discovery stories in "American"2 literature, Sherwood Anderson

* Visiting Assistant Professor of Law, University of Louisville Louis D.

Brandeis School of Law. LL.M. in Legal Theory, New York University School ofLaw, 2010: Post-Graduate Certificate in Linguistics Applied to the Study ofSpanish, University of Puerto Rico, Rio Piedras Campus, 2008; J.D., Universityof Puerto Rico School of Law, 2005; B.S., University of Puerto Rico, Rio PiedrasCampus, 2002. A Spanish version of this article was presented in the Panel:Justice and Law: Working towards Unification at the 2014 LatCrit South-NorthPerspectives Conference, Towards an Education for Justice celebrated inBogotA Colombia in June 2014. I would like to thank the editors of theCharleston Law Review for their insightful edition, dedication, and hard work.

1. SHERWOOD ANDERSON, Discovery of a Father, in THE SHERWOOD

ANDERSON READER 698-703 (Paul Rosenfeld ed., 1947), available athttp://perma.cc/3YV8-WEAW.

2. I will use the term American throughout this paper as a gentilic torefer to the nationals of the United States of America for lack of a better term intoday's English language to denote such a national origin. However, thisextended use of the term is a misappropriation of a gentilic that applies to allthe people living in the America continents.

subtly unmasked how yearnings and aspirations are a two-waystreet.3 As parents project their aspirations upon their children,so do their children upon them.4 The same holds true for teachersand students, especially in legal academia.5 As law professors, wehave a specific idea of what type of learners and legalprofessionals law students should be; but just as daughters andsons, law students also have in their minds an ideal lawprofessor.6

However, when these aspirations and ideals do notcorrespond with each other, conflict usually ensues, as it did forthe young man in Sherwood Anderson's Discovery of a Father.7This conflict puts a strain on any relationship and creates a tenseatmosphere that can dampen communication.8 In the case of

3. See Anderson, supra note 1.4. See id.5. Spearlt, Priorities of Pedagogy: Classroom Justice in the Law School

Setting, 48 CAL. W. L. REV. 467, 467 (2012).6. Duncan Kennedy, Legal Education and the Reproduction of Hierarchy,

32 J. LEGAL EDUC. 591, 593-94 (1982) (explaining how "tougher, less policy-oriented teachers are the [most] popular," as they correspond with the ideal of agood law professor).

7. See Anderson, supra note 1. The conflict in Sherwood Anderson's storyis signified in the young boy's acknowledgement of how he made up storiesabout having a different father: "So they had to hush it up, but I got born justthe same. I wasn't really the son of my father. Somewhere in the world therewas a very dignified, quite wonderful man who was really my father. I evenmade myself half believe these fancies." Id. at 4. In the context of law schools,conflicts are usually more confrontational. See, e.g., Maneesha Deckha,Teaching Posthumanist Ethics in Law School: The Race, Culture, and GenderDimensions of Student Resistance, 16 ANIMAL L. 287, 292 (2010) (narrating herexperience of confrontations while teaching an Animal Law course and planninga conference on the topic).

8. Sherwood Anderson elegantly summarizes the effect of these types offamily conflicts in his short story: "But often I was filled with bitterness, andsometimes I wished he wasn't my father. I'd even invent another man as myfather. To protect my mother, I'd make up stories of a secret marriage that forsome strange reason never got known." Anderson, supra note 1, at 4. In thelegal academy context, various scholars have talked openly about the tensionsbetween students and professors. See, e.g., Spearlt, supra note 5, at 467(arguing how both parties-students and teachers-are left unsatisfied andangry when their expectations do not correspond with reality); Carrie Menkel-Meadow, Feminist Legal Theory, Critical Legal Studies, and Legal Education or"The Fem-Crits Go to Law School", 38 J. LEGAL EDuc. 61, 68 (1988) (arguinghow some professors feel teaching certain types of students is the price theyhave to pay in order to keep doing their "liberal or radical" scholarship).

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parents and their children, this might be resolved with time or aserendipitous event that reopens the communication channelsand sheds light on the reasonableness of their yearnings-as ayoung Sherwood discovered himself.9 Yet, in the classroom, timeis always pressing and those types of serendipitous events arescarce.

Nonetheless, most of us who have been in a classroom feelthat students and professors must find a way to deal with theirmismatched ideals. We believe that otherwise the classroomwould become a minefield in which tensions and conflict fly andexplode, leaving learning eroded.o In some instances, as ithappened during Greg Mankiw's 2011 Introductory Economicsclass at Harvard, such explosions take very tangible forms suchas a staged walkout to demonstrate the disconnect between theprofessor's vision of the class and the profession vis-A-vis thestudents'." In most instances, however, both sides subtly expresstheir discomfort daily, in ways that could be thought todiscourage the parties from engaging in the learning process ordistract them from the pedagogic endeavor.

These inevitable subtle confrontations and understateddiscomforts, however, are seldom memorialized except forstudents' evaluations, which are archived and used strategicallyto grant tenure or not. Most of the time, we experience them as

9. The resolution in Anderson's story is that the son discovers afterswimming naked during a stormy dark night in the river with his father thathe, just like his father, was a storyteller, and that what he hated the most abouthis father was also present somehow in him:

It was a feeling of closeness. It was something strange. It was asthough there were only we two in the world. It was as though I hadbeen jerked suddenly out of myself, out of my world of the schoolboy,out of a world in which I was ashamed of my father.

• . . He had become blood of my blood; he the strong swimmer and Ithe boy clinging to him in the darkness. We swam in silence, and insilence we dressed in our wet clothes, and went home.

Anderson, supra note 1, at 5.10. SpearIt, supra note 5, at 467 (arguing that when teachers' and

students' expectations are divorced from one another, both sides feel unfulfilledand disengage themselves from the learning experience).

11. Jose A. Delreal, Students Walk Out of Ec 10 in Solidarity with 'Occupy,THE HARV. CRIMSON, Nov. 2, 2011, http://perma.cc/QJ6H-RMNL.

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derisory remarks such as, "You don't do things like mostprofessors or like X professor (the epitome of the ideal lawprofessor)," or, "You should take this matter seriously even if itwon't be tested on the bar; it will be important in your lives asattorneys," that are said and disregarded as they do not seem topertain to the teaching or learning experience. Rarely, we readaccounts in the legal pedagogy scholarship about the customaryconfrontations between students and professors predicated ontheir divergent visions of the Law, the profession, and pedagogicpractices.12 Most of the scholarship in this area is dedicated toapolitical/ neutral issues such as teaching effectiveness, practice-ready attorneys, bar passage rate, job placement, and studentsatisfaction.13 Seldom do legal scholars problematize theseaccounts of confrontation and delve into what they mean in termsof our didactic practices. Instead, students' voices are buried inthe bureaucratic exercise of collecting complaints and accoladesto measure effectiveness, and professors' accounts are left for sidefaculty meeting conversations and building camaraderie bysharing war stories.

This is why the Economics 10 walkout was so pivotal intriggering this article's reflection about what the Law-Critclassroom is and what it should be. In a rare turn of events, we

12. See, e.g., Deckha, supra note 7; Duncan Kennedy, The PoliticalSignificance of the Structure of the Law School Curriculum, 14 SETON HALL L.REV. 1 (1983); Kennedy, supra note 6; Spearlt, supra note 5.

13. See, e.g., Ann Marie Cavazos, Next Phase Pedagogy Reform for theTwenty-First Century Legal Education: Delivering Competent Lawyers for aConsumer-Driven Market, 45 CONN. L. REV. 1113 (2013); Gregory M. Duhl,Equipping Our Lawyers: Mitchell's Outcomes-Based Approach to LegalEducation, 38 WM. MITCHELL L. REV. 906 (2012); Cassandra M.S. Florio &Steven J. Hoffman, Student Perspectives On Legal Education: A LongitudinalEmpirical Evaluation, 62 J. LEGAL EDUC. 162 (2012); John Burwell Garvey,"Making Law Students Client-Ready" - The Daniel Webster Scholar HonorsProgram: A Performance-Based Variant of the Bar Exam, 85 N.Y. ST. B. ASS'N J.44 (2013): Luz E. Herrera, Training Lawyer-Entrepreneurs, 89 DENY. U. L. REV.887 (2012); Kevin W. Robinowich & Preyal D. Shah, From Admission to BarPassage: Extending a Helping Hand to Students at St. Mary's University Schoolof Law. 14 SCHOLAR 107 (2011); Donald H. Zeigler, Joanne Ingham & DavidChang, Curriculum Design and Bar Passage: New York Law School'sExperience, 59 J. LEGAL EDuc. 393 (2010); N. Denise Burke, StudentEngagement In Law School: Preparing 21st Century Lawyers, 34 WYO. LAW, no.4, Aug. 2011, at 28.


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were witnesses to both the professor's and the students' versionsof on-going class conflicts that were prompted by theirmismatched philosophical and pedagogical views. The studentsalleged that they were discontent with the inherent bias in theirintroductory economics course that did not include a criticalperspective that would allow them to assess the flaws andbenefits of prevailing economic models and alternative ones. 14 Asa way to express their discontent in a more tangible manner,they staged a walkout.15

When I read the news about their walkout, I was envious ofProfessor Mankiw. As a teacher that self-identifies as a Critscholar and professor, I had wished many times for students likeMankiw's discontented pupils. I constantly long for students whowould appreciate the value of a critical education instead ofdiscarding it as a futile exercise or describing it as a politicalagenda that has no room in the classroom, and who would go theextra mile to defend it.16 However, as a teacher I felt for Mankiwand wondered how I would react if I have to face such aconfrontation.

Many times I have faced the students' rejection of thediscussion of critical scholarship, the inclusion of non-canonicalnarratives, or the use of critical pedagogical strategies. Thosemoments of confrontation have been definitely unpleasant,

14. An Open Letter to Greg Mankiw, HARVARD POL. REV. (Nov. 2, 2011, 2:23AM), http://perma.cc/E8BL-5DAC.

15. Id.16. Duncan Kennedy explains pristinely how critical legal education is

perceived as political whereas traditional doctrinal legal education is not. SeeKennedy, supra note 12.

Here is how I'd characterize the structure of feelings. The core is hard,the periphery is soft. The core is law, the periphery is politics. Thecore is reason, the periphery is emotion. The core is based on theclean, anti-emotional logic of doctrine, whereas the clinical,interdisciplinary, legal process, policy, and public law approaches areall based on altruistic passion. Logic versus subjectivity. The coreequals reality. It is the way things really are, whereas the periphery isthe ideal, the way we would like things to be. There is a sense inwhich the core is our real self and the periphery is our fantasy self,our ethical fantasy self. The core is law.

Id. at 10.

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disruptive, and, in some cases, hard to manage.17 Therefore, Iempathized with Mankiw and for a moment felt that the way inwhich his discontented students transformed the classroom intoa battlefield was not necessarily the best approach. However, hisresponse to his students' actions left me with a bad taste in mymouth.

First, Mankiw dismissed his students' walkout by explaininghow it made him feel nostalgic about when he was in college andstudent activism was more common.'8 Then, he told the NewYork Times' readership that he was sad because the studentswho orchestrated the walkout were poorly informed (ignorant), astheir complaints were "a grab bag of anti-establishmentplatitudes without much hard-headed analysis or clear policyprescriptions."19 And finally, he defended the way he decided tostructure his course, as he "do[es not] view the study ofeconomics as laden with ideology."20 In simple words, his defensewas that he does not believe himself to have any political agenda,that his job as a professor is not to engage in any type of socialchange, that his studies provide him with the legitimacy to

17. I remember one occasion when a student challenged my non-hierarchical strategy of structuring the classroom. I call my students by theirfirst names or nicknames, and I do not assign seats to them. They are free to sitwherever they please. I strive to get to know all my students, not only bylearning their names but also their interests. So there is not even a practicalreason for me to ask them to sit in particular chair, since I actually know them.Yet, one of my students apparently could not deal with one day not findingherself in the same place she always sat, and at the beginning of class raisedher hand and asked me why I did not assign seats like every other professor inthe school. I was startled by her question and her condemning tone. Trying toavoid conflict, not only with her but with my fellow professors, I could only replythat I believe my students to be adults and that I did not see the need for that.Her comment, nonetheless, was shocking and made me understand how Iconstantly have one or two comments in my evaluations saying that I do nothave control of the room, even when there have been no disturbances in myclasses. I finally understood that there were people who have internalized thetraditional hierarchy of the law school classroom and that any departure fromthat model, such as not assigning seats, addressing people by their first name,or permitting people to speak without being called, could be seen as a lack ofcontrol or organization.

18. N. Gregory Mankiw, Know What You're Protesting, N.Y. TIMES, Dec. 3,2011, http://perma.cc/NRM7-KT95.

19. Id.20. Id.

impose a particular curriculum, and that in no way are suchdidactic practices ideological but merely part of his expertise.21Thus, it seems natural for Mankiw to reject the idea of theclassroom as a battlefield and see the walkout as disruptive tothe learning process. He does not ascribe any political value toteaching and learning.

Yet for me, as a Crit-teacher who is constantly thinkingabout how the content of the classes I teach can better reflect thetenets of critical theory and how my pedagogic practices could bemore effective at teaching the law and advancing my socialchange project, Mankiw's response stands on the completeopposite side of the spectrum of what higher education should be.I try every day to demystify the assumption that traditional andcanonical professors do not have a political agenda, as opposed toCrit-professors like me. 22 I firmly believe that part of my job as alaw professor is to advance an agenda of social change.23 I try notto present myself to the students as an infallible expert who isthere to teach what they ignore.24 I am well aware that teachingand learning are political.25 Nonetheless, like Mankiw, I havealways tried to keep conflict to a minimum in the classroom,supposedly as a way to enhance learning.

Then it hit me that a strategy that fits so well for attainingthe opposite objectives obviously cannot and should not be apedagogical tool in the repertoire of a Crit-professor. As yearshave passed after Mankiw's reaction to his class walkout, I havecontinued to reflect on my teaching and my pedagogicalphilosophy. Informed by my own teaching experiences and thoseof my colleagues, I have wondered more and more whether the

21. Id.22. See Kennedy, supra note 12, at 1, 2 (arguing that we should

understand curricular practices in political terms and that the doctrinalcomponent of the law school curriculum is politically center-right).

23. Denise Pacheco & Veronica Nelly Velez, Maps, Mapmaking, andCritical Pedagogy: Exploring GIS and Maps as a Teaching Tool for SocialChange, 8 SEATTLE J. Soc. JUST. 273, 282 (2009) (discussing how criticalpedagogy is based in engaging students in generating critical interventions tothe social problems identified through the didactical practices).

24. Kennedy, supra note 6, at 593; SpearIt, supra note 5, at 468.25. See, e.g., Kennedy, supra note 12, at 1; Kennedy, supra note 6, at 595-

610; Pacheco & Velez, supra note 23, at 277-78.

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strategy of minimizing conflict is an incorrect approach toadvancing my pedagogical project. As a corollary, I ponder aboutthe best formulation of the classroom that would allow me toeffectively teach the law and at the same time serve mytransformative agenda. Is it that of a laboratory? That of theclassical agora? Or, for a Crit-professor, should the classroomindeed be a battlefield?

The following is my modest attempt at answering theseinquiries by looking at the challenges that critical educators faceeach day in the classroom and their particular needs. Moreimportantly, it is an invitation to ponder as a community ofteachers our didactic practices and whether they are in sync withour political, pedagogical, and social stances.

II. IMPRISONED IN THE CAVE: CRITICAL LEGALEDUCATION DEFINED

With that in mind, the first part of our inquiry should bedirected towards defining what it means to do critical work inlegal academia. A simple way to do so would be to describe it asthe practice of incorporating a critical pedagogy into law schoolteaching. This type of instruction is often associated with PauloFreire's own reflection of his teaching experiences and didacticpractices, recollected in his book, Pedagogy of the Oppressed.26However, it can be traced back to the tenets formulated by theFrankfurt school.27 In sum, critical pedagogy is an educationphilosophy based on neo-Marxist theory that pursues a fullerunderstanding of education by describing it as a relationship ofpower between learners, pedagogues, and society.28 It intends totransform these relationships of power by recognizing professorsand students as co-creators of knowledge,29 unmasking thepolitical and oppressive contents society imposes upon learners

26. PAULO FREIRE, PEDAGOGY OF THE OPPRESSED (Myra Bergman Ramostrans., Bloomsbury Academic 30th Anniversary ed. 2000); Pacheco & Velez,supra note 23, at 278, 280.

27. Pacheco & Velez, supra note 23, at 277-78.28. Id. at 277.29. Id. at 282 (explaining how education is a collective endeavor between

students and pedagogues).


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and teachers through hegemonic didactic practices,30 andformulating and incorporating more equitable methods ofteaching in order to assist students and teachers to "developconsciousness of freedom, and connect knowledge to power." 31 Insimpler words, critical pedagogy is an education theory andpraxis that seeks by means of dialectical thinking and theconstant exchange of ideas to liberate both teachers and studentsfrom the reified ideas that society has imposed upon us.

Critical pedagogy should not be confused, however, withcritical thinking, as legal professors, law students, and law schooladministrators often do. As Professor Deckha correctly pointsout, critical pedagogy is different from the trendy criticalthinking.32 Critical thinking is concerned with "identify[ing]faulty or unreliable assertions or meanings."33 "Critical pedagogy,however, is preoccupied with social injustice and examines andpromotes practices that have the potential to transformoppressive institutions [-including the classroom-] or socialrelations [(such as the teacher-student)], largely througheducational practices [;mainly, through dialogue]."34 Even ifFreire originally understood these practices in the narrow neo-Marxist framework of class, today's understanding of criticalpedagogy encompasses all forms of oppression (i.e., sex, gender,race, class, sexual preference, and other marginalizedidentities).35 Thus, one can say that "critical pedagogy is apoliticized form of critical thinking, connecting individual insightto broader social issues and praxis."36 Freire envisioned thispedagogic approach as a practice of freedom, one that can beachieved through the problem-posing method.37 This methodimplies that "[s]tudents and teachers collectively examine,

30. Id. at 277-78.31. Spearlt, supra note 5, at 469.32. Deckha, supra note 7, at 292.33. Linda Keesing-Styles, The Relationship Between Critical Pedagogy and

Assessment in Teacher Education, 5 RADICAL PEDAGOGY 1, 2 (Summer 2003).34. Id.35. See Anita Tijerina Revilla, Note, LatCrit and CRT in the Field of

Education: A Theoretical Dialogue Between Two Colleagues, 78 DENV. U. L. REV.623, 627 (2001).

36. Deckha, supra note 7, at 292.37. Pacheco & Velez, supra note 23, at 281.

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CHARLESTON LAW REVIEW

through inquiry and dialogue, problems related to their positionsin the world and engage in generating critical interventions tothese problems."38 Thus, the crucial point of critical pedagogy isthat it demands social action,39 inside and outside the classroom.

This has several important implications in the law schoolclassroom. First, since the work "tends to manifest itself ... asdialogue that leads to the development of voice,"40 it requires thatprofessors eradicate the hierarchies and distances betweenteachers and learners established in the long tradition of theoften mislabeled Socratic Method employed in American lawschools41 and acknowledge "the different kinds of valuableknowledge . . . students bring with them."42 In other words,critical pedagogy requires a horizontal classroom in whichstudents recover their voices, voices that have been silenced bythe hegemonic practices of traditional legal education.

But those are not the only voices that must be brought backto the classroom. As the practice of law systematically excludescertain groups in society, their experiences and voices have alsobeen silenced in the classroom.43 As professors, we must workwith the students to "debunk the traditional view of schooling as

38. Id. at 282.39. Keesing-Styles, supra note 33, at 2.40. Revilla, supra note 35, at 625.41. Rogelio Lasso, From the Paper Chase to the Digital Chase: Technology

and the Challenge of Teaching 21st Century Law Students, 43 SANTA CIARA L.REV. 1, 14 n.54 (2002) (explaining how the case method is often improperlyreferred to as the Socratic Method); SpearIt, supra note 5, at 477 (arguing how"simply because many professors label their approach 'Socratic' does not makeit so").

42. Frances Ansley, Starting with the Students: Lessons from PopularEducation, 4 S. CAL. REV. L. & WOMEN'S STUD. 7, 28 (1994).

43. See, e.g., Margaret E. Montoya, Silence and Silencing: TheirCentripetal and Centrifugal Forces in Legal Communication, Pedagogy andDiscourse, 33 U. MICH. J.L. REFORM 263, 299-300, 323 (2000) (discussing howminority students are silenced in the classroom and how racial issues aresilenced from public debates as a control mechanism); Francisco Valdes,Outsider Jurisprudence, Critical Pedagogy and Social Justice Activism:Marking the Stirrings of Critical Legal Education, 10 ASIAN L.J. 65, 70-71(2003) (arguing how "legal education historically was structured to privilegewhite-identified groups, persons, and values," and how "conversely, legaleducation was structured to exclude feared or 'different' Others" and discussinghow that is reflected in the syllabi in law schools across the United States).

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* . .neutral,"4 unmask how the prevailing hegemonic discourseshave created historical gaps in the curriculum regardingmarginalized groups, and bring their stories, their voices, andtheir history of oppression to the classroom. Richard Delgado hasdefined this technique as counterstorytelling.45 Basically, thepedagogic strategy is to tell the story of those whose experienceshave not been told (or have been selectively excluded) andchallenge the reified narrative of those in power. 46

It is impossible to do so without showing and exploring thelaw as a center of multiple axes of oppression or discussing thelaw as a set of constant and multiple power struggles47 Thatrequires a multidisciplinary approach that would allow a fullunderstanding of the law "that span[s] the historical, social,intellectual, and experiential."48

Through the cross-disciplinary and inquiring process of criticallegal education, students [as well as teachers] steadily becomeequipped to recognize particular (and interlocking) forms ofhegemony as well as their roots. This recognition is thepredicate to resistance, and in time, to the multidimensionalarticulation of emancipatory forms of counter hegemoniesbased on antisubordination principles.49

As we are led by critical pedagogy into the contestation ofhegemonic practices, we come to understand that such achallenge cannot occur exclusively in the classroom as an isolatedintellectual endeavor devoid of any practicality, especially in aninherently political arena as the Law. As a community ofpedagogues and learners, we realize that in order to attain amore egalitarian society we must seek legal reforms. In addition,we become aware that the traditional lawyering practices taught

44. Pacheco & Velez, supra note 23, at 279.45. Richard Delgado, Storytelling for Oppositionist and Others: A Plea for

Narrative, 87 MIcH. L. REV. 2411, 2414 (1989).46. See generally id.; see also Daniel G. Sol6rzano & Tara J. Yosso,

Maintaining Social Justice Hopes Within Academic Realities: A FreireanApproach to Critical Race/LatCrit Pedagogy, 78 DENY. U. L. REV. 595, 600(2001).

47. See Valdes, supra note 43, at 86.48. Id.49. Id.

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in law school perpetuate the subordination of groups, silenceclients, and impose reified hierarchies. 50 As teachers andstudents we find the freedom and the tools to transform thecontent and the practice of law. We become ready to contest thelegal world we have taken for granted. We recognize that thelegal system and its institutions are in fact a battlefield for andof powers. However, for us pedagogues this reality seems to beforgotten.

III. FREED FROM THE CAVE: TOWARDS A CRITICALLEGAL DIDACTIC METHODOLOGY

Being teachers in law schools, our opportunities to do criticalwork (be it critical pedagogy or any other) circumscribes to threefronts: (1) research and scholarship; (2) law practice; and (3)teaching. As a community of scholars, we have been very prolificin producing a body of work that explores and furthers the tenetsof critical thinking.51 In our scholarship we consistently andopenly contest hegemonic discourses. We engage in ideologicalbattles and do not shy away from the confrontation that suchexchanges require, nor do we feel we should avoid that type ofconflict.52

The same holds true, for the most part, when we do our work

50. See, e.g., Sarah Buhler, Skills Training in Clinical Legal Education: ACritical Approach, 6 CAN. LEGAL EDUC. ANN. REV. 1, 16, 18 (2011); John 0.Calmore, "Chasing the Wind"- Pursuing Social Justice, Overcoming Legal Mis-Education, and Engaging in Professional Re-Socialization, 37 Loy. L.A. L. REV.1167 (2004); Lucie E. White, Subordination, Rhetorical Survival Skills, andSunday Shoes: Notes on the Hearing of Mrs. G., 38 BUFF. L. REV. 1 (1990); LucieE. White, To Learn and Teach: Lessons from Driefontein on Lawyering andPower, 1988 Wis. L. REV. 699 (1988).

51. For a comprehensive index of critical scholarship, see LatCrit ThematicIndex, LAT CRIT., http://perma.cc/7TSM-7KQK (last visited Nov. 5, 2014).

52. See, e.g., Deborah Dinner, Strange Bedfellows at Work:Neomaternalism in the Making of Sex Discrimination Law, 91 WASH. U. L. REV.453 (2014); C6sar Cuauht6moc Garcia Herndndez, The Perverse Logic ofImmigration Detention: Unraveling the Rationality of Imprisoning ImmigrantsBased on Markers of Race and Class Otherness, 1 COLUM. J. RACE & L. 353(2012); Saru M. Matambanadzo, Embodying Vulnerability: A Feminist Theory ofthe Person, 20 DUKE J. GENDER L. & POL'Y 45 (2012); Anibal Rosario-Lebr6n, ForBetter and for Better: The Case for Abolishing Civil Marriage, 5 WASH. U.JURISPRUDENCE REV. 189 (2013).


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from the second front. When we partake in a case as attorneys,we are aware of the contestatory nature of that work. Weembrace its nature and openly talk about it as well as thechallenges it poses.5 3 Furthermore, when we work as mentors inthe law clinics, we stress the role that skills training has onnurturing legal activists,54 demystify the technocentrismnarrative prevalent in law schools,55 dismantle the falsehoodbehind the pretense of practice being apolitical,56 promotecommunity-based representation,57 and put emphasis onhonoring the clients' voices.58 As we do in our practice asattorneys, in our role as mentors we also embrace thecontestation and confrontation that critical work imposes on lawclinic teaching and work.59

However, in the classroom-just as Mankiw implicitlyargued-we incessantly try to diminish confrontation.60 We avoid

53. Professor White offers a valuable insight of how aware we are of theconfrontational nature of this practice in her remarks on the twentiethanniversary of the Parkdale Clinic:

Rather, we have no morally consistent option except to confront andembrace the tension between our aspirations to "fix" the blatantinjustices of poverty, and the poverty of our claims to undertake thattask. Our challenge is to hold on to our commitments while at thesame time questioning our own capacity and legitimacy to act out thecommitments that we have embraced. Our challenge is to practise lawfor poor people in a way that looks inward, resisting elitist concepts oflawyering, and at the same time looks outward, seeking new ways toally with "clients" and to join in mutual, but keenly self-reflective,power-sensitive projects of change. As we accept this challenge tochange our own self-concepts and modes of advocacy, our legal clinicsand our visions of clinical education will change as well. Given thetimes in which we find ourselves, we must take such risks if we are toseek justice in the work that we do.

Lucie E. White, The Transformative Potential of Clinical Legal Education, 35OSGOODE HALL L.J. 603, 611 (1997).

54. Buhler, supra note 50, at 4-5.55. Id. at 7-11.56. Id. at 11-14.57. White, supra note 53, at 604.58. Id. at 605.59. Buhler, supra note 50, at 20.60. See William F. Kullman, Feminist Methodologies in the Law School

Classroom: Listening for a Change, 4 TEMP. POL. & CIV. RTS. L. REV. 117, 120 n.3(1994) (explaining how after a class confrontation between a female student


confrontation as a pedagogic strategy even though on other frontswe embrace it as part of our critical project.

I posit, however, that such confrontation, as in the otherfronts of our academic endeavors, is inevitable and should be partof our pedagogic repertoire. In order to understand why, we mustfirst comprehend what type of didactic methodology legal criticalpedagogy requires. As critical legal teachers, we are clear aboutwhat should be included in the contents of the classes we teach orthe curriculum. We are concerned with bringing to the classmarginalized voices and histories, texts that do not perpetuatethe hegemonic discourses, and issues that have historically beenexcluded.61 However, we have not yet discussed in depth how toimplement the tenets of critical thinking into the legal teachingitself.62

Our teaching methodologies should speak not only to thetenets of critical thinking, but should also respond to the powerstructures of law schools. We must consider how the oppressivestructures of law schools could be broken down so we can reallyengage in a problem-posing dialogue.63 Duncan Kennedy, in his

who challenged a professor's description of a rape case and his lack of a feministperspective on the issue, "no one [of her classmates] felt that their emotionalreactions to rape or the classroom confrontation were valuable enough to shareopenly in class"); Sarah E. Thiemann, Beyond Guinier: A Critique of LegalPedagogy, 24 N.Y.U. REV. L. & SOC. CHANGE 17, 20 (1998) (arguing that lawprofessors "must prepare students for the confrontation and competition thatcharacterizes legal practice, while sustaining an effective and interestingclassroom environment," but that most professors "choose to tip the balance infavor of preparing students for the rigors of the outside world at the expense ofmaintaining an effective classroom atmosphere"); James J. Tomkovicz, OnTeaching Rape: Reasons, Risks, and Rewards, 102 YALE L.J. 481, 486 (1992)(relating the experience of teaching rape law and trying to "avoid unduecontroversy and contention").

61. See supra notes 43-45 and accompanying text.62. Authors such as Pacheco and Velez have discussed how to incorporate

critical pedagogy into teaching in the social sciences and classroom technologycontexts. See Pacheco & Velez, supra note 23. Yet they do not focus on the legalacademia. Other scholars that do focus on legal teaching, such as Spearlt, supranote 5, and Kennedy, supra notes 6, 12, have talked about incorporating theprinciples of critical pedagogy into the law school classroom and have providedsome insights into specific didactic practices. However, to this date critical legalscholars have not offered a comprehensive didactic methodology to beemployed/implemented in legal education.

63. For a discussion on the problem-posing method, central to the Freiran

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seminal article, Legal Education and the Reproduction ofHierarchy, pointed to the most salient features of these powerstructures: the omnipotent professor,64 the hierarchical structureof the classroom as a way to reproduce the modeling ofhierarchical relationships,65 the ranking,66 the ideologicalindoctrination,67 the Socratic Method6s as the preferred, if not theonly, didactic method,69 and the incapacity for alternativepractice.70

As a solution, Kennedy proposed a new curriculum with anemphasis in clinical education and interdisciplinary courses. 71 Healso proposed revamping admissions policies to include morediversity; shifting school hierarchy by changing salary, attendingto faculty diversity, and rethinking tenure policies; as well aschanging the curriculum and school structure to channelstudents into more diverse types of jobs.72 Even though some ofhis solutions have been incorporated into our current practices inlegal education,73 they do not deal at all with what happens inthe classroom, nor do they attend specifically to how we teach orthe best way to teach. Kennedy's solutions are either directed tocontent or structural problems with the legal profession. He doesnot proffer any critical legal didactic methodology.

approach to critical pedagogy see Pacheco & Velez, supra note 23, at 281.64. Kennedy, supra note 6, at 593.65. Id. at 602.66. Id. at 600.67. Id. at 595.68. See infra notes 76-80 and accompanying text.69. Kennedy, supra note 12, at 13; Kennedy, supra note 6, at 600.70. Kennedy, supra note 6, at 601-02.71. Id. at 614.72. Id. at 615.73. For instance, law schools have increased their offerings of clinical

education, have included as part of their missions a commitment to diversity(although diversity is still far from a reality), and have experienced an increasein interdisciplinary education. See, e.g., Celestial S.D. Cassman & Lisa R.Pruitt, A Kinder, Gentler Law School? Race, Ethnicity, Gender, and LegalEducation at King Hall, 38 U.C. DAVIS L. REV. 1209 (2005); Kim DianaConnolly, Elucidating the Elephant: Interdisciplinary Law School Classes, 11WASH. U. J.L. & POL'Y 11 (2003); Alison Donahue Kehner & Mary AnnRobinson, Mission: Impossible, Mission: Accomplished or Mission: Underway? ASurvey and Analysis of Current Trends in Professionalism Education inAmerican Law Schools, 38 U. DAYTON L. REV. 57 (2012).

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Other scholars, such as Spearlt, have departed from thecontent or structural focus and have argued that we shouldconsider all aspects of teaching, "from classroom ecology (theplacement of the podium), to course design (the delivery ofsyllabus), attire (suit and tie), and policies (make-up classprocedures)."74 I agree with SpearIt that if we really believe inthe tenets of critical thought, our teaching methodology shouldreflect it. In my process of becoming and discovering myself as aCrit-professor, I have identified the following areas as pivotal tothe development and implementation of a critical didacticmethodology in the law school classroom:

1. A Horizontal Classroom2. A True Socratic Method3. A Critical Analysis of the Hegemonic Vision of the Law4. A Commitment to Diversity5. The Adoption of Non-Traditional MaterialsThe first area embodies the principle that hierarchies create

oppression and that classroom hierarchies in law schools are partof the machinery that seeks to replicate, instill, and naturalize instudents the existent hierarchies in the legal profession. If we arecommitted to bringing down those hierarchies, we must begin bymaking sure they do not exist in the classrooms.

A first step to horizontality is introducing ourselves by ourfirst names. A way to bridge the gap established in societybetween professors and students is by eliminating titles. Signingemails with our first names and making sure the studentsunderstand that they can call us by our first names can helpbridge that gap. A second step is to address the students by theirfirst names instead of by their last names, as tradition dictates.

In addition, we should make sure that the structure of theclassroom reflects a non-hierarchical approach. Not assigningseats, teaching in classrooms in which everyone is on the samelevel, and avoiding teaching from a podium are also goodstrategies.

Furthermore, we should make sure that the classroom

74. Olympia Duhart, Cluster Introduction-Education and Pedagogy-OnIdentity and Instruction, 48 CAL. W. L. REV. 453, 457-58 (2012).

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policies embody the idea of horizontality. Instead of recitingclassroom rules in the first lesson, there should be a dialogueamong the participants about which rules that the class feels as awhole should govern class behavior (i.e. in-class laptop usage,food consumption, and interruptions). Rules should not be animposition but an agreement.

Classroom attire, as Spearlt pointed out, is also ofimportance.75 Unless needed for a class exercise, suits are notrequired. Interestingly enough, a large percentage of professorsin legal academia who insist on wearing suits to class under thepremise that it is appropriate professional attire, since attorneysare required to dress like that in court, have never practiced lawand seldom set a foot in a courtroom.

Lastly, the grading and teaching practices should break themold of superiority or complete control over the process. Forinstance, providing grading rubrics, model answers, and detailedgrading policies so that students know exactly how they aregoing to be evaluated, instead of leaving them guessing,contributes to horizontality. Coming up with alternativeevaluation procedures could also contribute to a more egalitarianclassroom. For example, a technique that I employ is to providerequired and elective assignments to students for them tocomplete until they reach the accumulated score point for thegrade letter they wish to obtain. So, instead of grading them andtaking points off for allegedly not knowing what one deems as theappropriate set of skills and knowledge, one could let themchoose the topics and skills they wish to learn and they earntheir grades by accumulating points through the assignmentsthey select.

In terms of teaching, class discussions should also avoidplaying into hierarchical roles. The common practice of cold-calling does precisely the opposite. Discussion should come fromthe class. Students should feel free to participate when theybelieve they have something to contribute. They should feeluninhibited to make mistakes and learn from them, instead ofthinking that they will be ridiculed for their errors. Professorsshould also realize that they are not perfect and mistakes are

75. Spearlt, supra note 5, at 468.

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bound to happen. Teachers must be honest about this fact withstudents, acknowledge those mistakes, and see them as anopportunity to grow and learn along with the students.Therefore, the best approach to directing class discussions is theconcept of a conversation rather than a lecture or one-sideddebate in which the professor is always right.

This is closely related to the second aspect of themethodology: the true Socratic Method. As mentioned, lawschools rely extensively on a distorted version of this didacticpractice.76 However, critical pedagogy requires us to rescue thetrue principles behind the Socratic Method. This teaching styledeparts from the presumption that students already possess theknowledge (albeit most times unconsciously) and that teachersare there to help them uncover that knowledge by posingquestions.77 The underlying idea is that through dialecticalexchanges, we would be able to scrutinize commonly held truthsto uncover our own beliefs and how these commonly held truthscame to existence.78 In other words, the teachers' mission is notto deposit or pour knowledge into the brains of the learners, butto help uncover what they already know about the world. Theultimate goal is to uncover the truth.

The problem-posing method that Freire proposed as thecrucial strategy to developing a critical consciousness shares thesame logic that is behind the Socratic Method:79

[T]he problem-posing method engages students and teachers inthe process of reflection and action, or praxis. This teachingapproach focuses on unveiling reality, rather than hiding it.Students and teachers collectively examine, through inquiryand dialogue, problems related to their positions in the worldand engage in generating critical interventions to theseproblems.80

Thus, it is crucial for us Crit-teachers that students engage

76. Lasso, supra note 41, at 14 n.54; Spearlt, supra note 5, at 477.77. See Donald G. Marshall, Socratic Method and the Irreducible Core of

Legal Education, 90 MINN. L. REv. 1, 10-12 (2005).78. See id.79. See, e.g., Pacheco & Velez, supra note 23, at 281.80. Id. at 281-82.


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with us in the type of dialogue that the true Socratic Methodrequires. It is also essential that students understand thedifference between the Socratic Method employed in Crit classesand the Socratic Method utilized by their non-Crit-professors. Innon-Crit classes, the aim of using the Socratic Method is to reifyhierarchical structures and promote hegemonic ideas about thelaw. However, our objective is the complete opposite.

Making clear this distinction requires us to delve into thenext area of my proposed didactic methodology: a critical analysisof the hegemonic vision of the law. It also entails a degree ofconfrontation between students and professors. First, in order touncover those realities behind common held beliefs about theLaw, Crit-professors should establish in their classes from thebeginning that the Law is not an unequivocal societal structure.We must challenge also the notion of objectivity. Furthermore,we must counteract the idea that Law is in and of itself a goodand the solution to every problem. Finally, we should find waysto portray the Law as the epicenter of power struggles.

I tend to establish these ideas in class by taking the timeduring the first lesson to discuss what the Law is. Surprisinglyenough, a large percentage of students begin their careerswithout ever posing the question of what exactly they arestudying or are about to study.81 I open this discussion by delvingin critical analysis techniques using photos of gangs, peoplepraying, and protesters. We delve into questions about whetherall those images represent legal systems. I take advantage of theanswers to confront the students with their visions of the Law.We ask questions about power, privilege, and status quo;attempting to debunk the hegemonic vision of the Law.

Making a distinction in terms of the type of Socratic Method Iemploy in class helps me also to introduce other techniques thatI will implement throughout the semester, such as variations ofcritical analysis. One important technique is self-reflection. For

81. A significant percentage of the students in my classes, often times, arebaffled by the idea of discussing in a law course other than Jurisprudence orLegal Philosophy this question. They indicate that they fail to see theimportance of such discussion and that is a waste of time to engage in a debatethat has many answers and that jurists as well as philosophers have not yetagreed upon.

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example, I ask students in certain courses to write reactionpapers in preparation for class about the readings in terms ofhow they felt about the materials or how the readings spoke tothem in the context of their lives. I try to elicit responses fromthem in terms of the type of role they expect to have in certainoppressive practices or the role privilege has played in their lives.These reflections are later shared and discussed in class as a wayto debunk hegemonic practices.

However, I ask the students not only to reflect aboutparticular power struggles in the Law, such as the client-attorney relationship or how we are part of particular hegemonicstructures, but also to self-reflect about their learning process. Atthe end of each semester, I ask them to self-evaluate their classparticipation. In other instances, I invite them to reflect aboutthe assignments they have handed in and selected as part oftheir course work. I also do self-reflection exercises in class afterwe have gone through skills instruction or class discussions onspecific topics such as cultural sensitivity and theories ofadjudication.

Inviting students to self-criticize their work and think aboutthe readings in light of their experiences and feelings is a way tobreak down hierarchical models and help in the process ofliberation that we strive towards through education. At the sametime, it introduces a sense of accountability, not only in thecontext of academic performance but also in terms of socialresponsibility. The classroom transcends the teaching of normsand becomes personal and political. It also demystifies the Lawand the law school experience.

Once both the classroom and the Law are unveiled aspolitical, it is indispensable for Crit-teachers to make sure thattheir methodology attends to their commitment to diversity.When I speak about commitment to diversity regarding didacticpractices, I am not only talking content-wise (e.g. a curriculumthat includes the history and voices of marginalized groups), butalso teaching practices that put the students in contact withostracized communities and help them see their realities, as wellas didactic practices that reflect respect toward those groups andembody an egalitarian agenda. A few elements that signal ourcommitment to diversity are social-cultural competencies


The Crit Classroom

training, language awareness, egalitarian management of classdiscussions, and work with marginalized communities.

Social-cultural competencies training could be taughtthrough in-class exercises in which students are confronted withclients that come from marginalized and different backgroundsfrom theirs. That would be a good way to illustrate to studentsthe importance of understanding the client's reality. Anothertechnique is to include non-traditional clients for law schoolexercises (i.e. non-middle class White heterosexual men/women,or big businesses or corporations) in class hypos.

In terms of language awareness, it is important that Crit-professors show an understanding of how language can be anoppressive tool. This does not refer exclusively to incorporatinginclusive language in class. It extends to making a consciouseffort to avoid language such as illegal immigrant or any otherphrase that reflects a particular biased vision of a group.Furthermore, it includes realizing and showing to students thatlanguage makes assumptions about many aspects of our livessuch as gender conformance, class, and sexual practices.

Language awareness should also translate into how classdiscussions are managed. We must make sure that all voices andexperiences in class are heard. That could be a challenge, as inmost instances minority students do not feel comfortable sharingtheir views in class because of outside class dynamics, becausethey are trying to avoid confrontation in class as they feelconfronting their classmates does not contribute to learning, orbecause they have been ridiculed by traditional professors whenthey have decided to share their perspectives.82 A good method todeal with this self-imposed isolation is to ask those students inclass if they have anything else to contribute to the discussion.

82. Throughout my career, almost every semester, minority students havecome to my office either to tell me how they have felt intimidated to speak inclass because White male classmates' voices are recognized as more importantby their non-Crit-professors; how those classmates tend to monopolizediscussion in class; how they do not wish to participate in class because of badexperiences with other professors that have lessened their contributions duringin-class discussions; or to tell me that they are not invested any longer insharing their experiences after being faced with confrontations from classmatesand professors that have left a bad taste in their mouths or intimidated them.See Montoya, supra note 43.

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Likewise, it is important to maintain an egalitarian culture bykeeping track of class participation and not letting traditionalvoices monopolized class discussions. Finally, another approachis to take advantage of students' reflections to bring their voicesto class, even when they do not feel comfortable participating indiscussions, by introducing their ideas with, "I read in one of thereaction papers . . . ." This would ease students into sharing theirviews as they would see how alternative viewpoints are treatedwith respect in class and traditional views are directly challengedwith the help of the professor.

Lastly, we can show our commitment to diversity byincluding in our pedagogic practices class work withmarginalized communities. The aim is that students experiencefirst-hand the problems these communities face when they areparties to legal controversies. For instance, in the Spanish forLawyers course that I teach, I propose as part of the electiveassignments that students work as interpreters in cases ortranslators for organizations that work with Latino immigrants,interview attorneys that work with these communities, orprepare materials that address problems of access to justice andmake them available to the communities. These assignments andthe reflections that accompany them enhance the political natureof the classroom work and provide a new perspective into whatthe profession and law practice are.

As it can be inferred, these types of didactic practices requirea holistic approach. That holistic approach includes two aspects:adoption of non-traditional materials and an eclectic teachingphilosophy approach. If we intend to highlight people's storiesand their relationships with the law and power, we must useother types of materials, in addition to traditional ones (i.e.cases, treatises and law review articles), that actually showcasethe intricacies of the human experience and the legal system.Specifically, I include in the class lessons cultural media such asfilms, TV shows, blogs, vblogs, videos, art, novels, short stories,poems, and newspaper articles. These media show the roles that"different factors-social, cultural, historical, economic andlegal-play in shaping people's interactions"3 with the law, with

83. Rose Cuison Villazor, Teaching Property Law and What It Means To Be

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members of the hegemonic groups, and with society as whole.Cultural media offer a different perspective about the Law's

value, validity, legitimacy, effectiveness, and objectivity from theone proffer by traditional materials. We get to hear the peopleaffected by the law, their stories, the reasons why they feel thelaw affects them in a particular way, and alternative solutions tothe law found by the parties themselves. These materials tell adifferent story from the hegemonic narrative found in cases,treatises, and law review articles. By introducing these non-traditional materials to the classroom, we help to demystify theprominent role that Law has in our society.

Incorporating these diverse materials also provides us withthe opportunity to reach a wider segment of the student body.People learn in different ways, and different materials stimulatediverse intelligence types. This is also a way in which learningbecomes more egalitarian as it reaches and is made moreaccessible to more individuals. For that reason, it is importantnot only to include non-traditional materials, but also didacticactivities that accommodate all types of learners.

These five tenets of didactic practices challenge fromdifferent fronts the hegemonic practices in law school educationas well as the reified narratives imbedded in the Law. Theyopenly contest the hierarchical understandings that arereproduced in law schools. They also open the door for moreegalitarian practices. However, like any contestation process, thisis faced with opposition from the factions whose intentions are tokeep the status quo.8 4

Human, 3 CAL. L. REV. CIRCUIT 7, 9 (2012).84. See Martin Carnoy, Education, State, and Culture in American Society,

in CRITICAL PEDAGOGY, THE STATE, AND CULTURAL STRUGGLE 3, 19 (Henry A.Giroux & Peter L. McLaren eds., 1989) (arguing that "[wihen challenged,dominant groups will attempt to avoid giving in, or at least will try to absorbthe challenge in a way that sharply reduces the potential effect of compromiseon the dominant group's capacity to make history").

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IV. RETURNING TO THE CAVE: UNDERSTANDING THECHALLENGES TO CRITICAL PEDAGOGY

Employing these didactic practices in legal education will bemet with resistance. That resistance leads to confrontation in theclassroom. As I related, students will confront professors on whythey are departing from the traditional teaching methodology.85That includes challenges to anything from incorporating differentcontent to engaging in alternative pedagogic practices.Interestingly, this confrontation is facilitated by our own successin implementing a critical agenda in class.

In the first place, students confront Crit-professors becausethey do not feel intimidated by us, as we have made clear thehorizontal structure of the classes.86 It is very probable that ifstudents feel uncomfortable about something in the class of non-Crit-professors, they will not confront them, as these teachershave clearly established a hierarchical structure that is not to bedisturbed or challenged. Furthermore, students feel morecomfortable about confronting their Crit-professors because theyfeel validated by the prevailing hegemonic discourses. In otherwords, students feel legitimized to resist and question the newpractices implemented in class because they are not deemed validas they do not subscribe to the tenets of the dominant legaldiscourse. In general, critical perspectives in the law are seen asvalueless and thus, open to challenge.87

85. See supra note 17 and accompanying text.86. In certain instances, challenging Critical pedagogy is easier for the

students when Crit professors are part of a minority group as they are seenautomatically as less authoritative or competent. See, e.g., Pamela J. Smith,Teaching The Retrenchment Generation: When Sapphire Meets Socrates at theIntersection of Race, Gender, and Authority, 6 WM. & MARY J. WOMEN & L. 53(1999) (exploring the phenomena behind the hostile interactions in theclassroom and poor evaluations for Black women professors); PRESUMEDINCOMPETENT: THE INTERSECTIONS OF RACE AND CLASS FOR WOMEN IN ACADEMIA

(Gabriella Guti~rrez y Muhs, Yolanda Flores Niemann, Carmen G. Gonzdlez &Angela P. Harris eds., 2012) (cataloging a collection of personal narratives andstudies that reveal the challenges faced by academic women based on theintersection of race, gender, and class).

87. See PAULO FRIERE, A CRITICAL ENCOUNTER 17-20 (Peter Leonard &


20151

When confrontation ensues in the critical classroom, it doeson four basic fronts in which students stand to resist the counter-hegemonic discourse of critical legal pedagogy and delegitimizeits practice. I have categorized these confrontations in terms ofthe questions that are raised in order to delegitimize the legalcritical pedagogy. The first front I denominate as: Why are wedoing this? Students question the self-reflecting strategies, theincorporation of non-traditional materials (e.g. watching moviesor reading poems), and even outside assignments such as talkingto practicing attorneys and former litigants. They feel theireducation is contentless because it does not hinge on thehardcore law, and that they are wasting their time doing theseexercises or considering these materials that do not teach one tobe an attorney. In simpler terms, it should be exclusively aboutthe law, and a Crit class is not about the law. The motto becomesthat Crit-professors do not teach the law, they teach somethingelse (i.e. sociology, philosophy, public policy).

The second front is: Why are you doing this? Whereas thefirst confrontation was about content, this is about authority.Students perceive you as a bad teacher because you allegedlylack control over the classroom. Students question why there areno seats assigned, why you do not cold-call on the lazy students,or why decisions should be made as a group instead of imposingthe teacher's criteria as the norm. The conclusion is that Crit-professors are not as good as traditional ones because they aresoft-and everyone knows you cannot be soft in the law.88

The next front deals again with content, but not from theperspective of how subject matters are being taught. Instead itrelates to the topics being discussed in class. I call it: Why are youteaching this? Why are we talking about Crit-scholarship?; whyare we considering subjects other than the law?; and how is ituseful to understand marginalized voices or read about them?The idea behind this specific confrontation is to argue that youare not a good professor because you are more concerned aboutpolitical factors than the law. Therefore, one must have a

Peter McClaren eds., 1993); Jerry L. Anderson, Law School Enters the Matrix:Teaching Critical Legal Studies, 54 J. LEGAL EDUC. 201, 202-03 (2014).

88. See Kennedy, supra note 12, at 10.

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political agenda, as opposed to the traditional law professors,who are perceived as agendaless.89

The last front encapsulates all of these challenges, but takesit to a more personal domain. The question students ask is: Whyare you even a law professor? In this front there are manyconsiderations at play, especially if you are a minority professor.If you talk about race, it is because you are an angry person ofcolor who raises the race card at every opportunity.90 If you talkabout the struggles of a particular identity it must be becauseyou are angry about your condition and you want to push thatpolitical issue into students' lives.91 Therefore, how privilegedstudents are has a direct impact on how many times we face thistype of challenge. In addition, if you do not conform to the ideal ofthe law professor that students have in their minds, you becomemore susceptible to this type of challenge. Today, non-Whiteteachers are still seen as incompetent because of the perniciouseffects of re-segregation and retrenchment.92 In sum, this lastchallenge reflects power struggles in terms of discrimination andstructural problems with admission and tenure policies.

As a pedagogue, when one faces such confrontations, onefeels like the students are shutting down and one is not being aneffective teacher. In that instance, my gut reaction has been totry to reduce further conflict by eliminating confrontation andreducing disruption. However, as Crit-teachers, we should bedoing the complete opposite.

This is what I feel has been my greatest failure as a Crit-professor: not realizing that I was actually being effective andthat I was achieving my goal of creating a liberating educationalexperience when I was being confrontational. In order forhegemonic discourses to change, there must be a confrontation-an interregnum in which the counter hegemonic discoursechallenges the prevailing narratives.93 If I wish to be completelysuccessful in my pedagogic strategy, I should be pursuing further

89. Id. at 2-5 (explaining the political nature of the law school curriculum).90. Smith, supra note 86, at 56-58, 161.91. Id.92. Id. at 60-96.93. Carnoy, supra note 84, at 16; Rosario-Lebr6n, supra note 52, at 229.

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confrontation instead of avoiding it.This epiphany only came after I had engaged in a self-

reflection exercise to understand the origins of the resistance inthe classes I have taught. After many years of thought and lots ofstruggles, I realized there were two main reasons for thoseinevitable confrontations: the current hegemonic vision of theLaw and legal education, and the students' backgrounds.

Like in any other power struggle these two factors arerelated. One cannot expect the dominant group to reject thedominant discourse, nor can one cut out the subordinated groupfrom the hegemonic narrative. Likewise, one cannot expect thedominant narrative to exist outside the realm of a hegemonicgroup. However, conceptually, it helps to separate them in orderto understand better their implications.

First, it is important to note that resistance comes from bothminority and non-minority students. However, the reasons inboth cases diverged. For the non-minority students, it is hard toaccept this new pedagogy because it goes counter to their owninterests and confronts them with their privileges and their ownsubordinating practices. They feel uncomfortable being directlyconfronted with the benefits of being part of the dominant groupand reaping those benefits. In addition, Crit pedagogy divergesdrastically from the dominant group's expectations of what lawschool and the Law should be.

For minority students, the last statement also holds true.They-like the non-minority students-are expecting a differentclassroom: a classroom that has been sanitized fromconfrontation and naturalized under a hegemonic view as thesuccessful way of legal instruction. They have bought into thehegemonic vision of the Law. That unconscious acceptance of thehegemonic discourse is what leads them to resist too the criticalapproach. They lack the tools to defy traditional models, so evenwhen those models are challenged for them, resistance ensues. Itfeels unnatural. Also, they have learned in their lives that whensuch a confrontation occurs, stakes for them are high as conflictwill usually be resolved against them. Their experiences in otherclassrooms, where challenges have been made and controlled bytheir professor or classmates, have taught them not to join thosetypes of contestations.

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Lastly, in-class confrontation is explained by looking at thehegemonic model of legal education. As mentioned, the Criticalproject is deemed valueless.94 This is reinforced by traditionalprofessors who ridicule the scope of such work. So we are not onlybeing confronted by the students, but also by our colleagues. Thatconfrontation comes from peer evaluations (i.e. tenure reports,faculty assessments) that criticize our approaches for strategiessuch as not cold-calling. It also presents itself in commentsduring class, offices hours and faculty meetings in whichtraditional professors talk about why critical legal analysis isunproductive in legal education. We can also experience it inscholarship debates and the placement of articles on criticalscholarship.95

The solution, however, is not to hide our heads in the sandand avoid confrontation at all costs. On the contrary, it is to holdour heads high and realize that the classroom is a battlefield,just as society is. For the Crit-teacher, the classroom is a place ofcontestation. We should never think otherwise.

Thus, when we are challenged in our pedagogic practices, weshould ask the following to the students: Why do you believe thatthis practice is less valuable than the one that the traditionalprofessor uses? Why do you feel like I have a political agenda andyour Neo-liberal professor does not? Why do you feeluncomfortable talking about these topics? Does it have to do withyour own privilege? Why don't you question your traditionalprofessor as to the reason why he assigned you a seat when youare an adult and you question me for not doing it? Would you askthat question to X professor? Why not? Would you doubt mycompetence if I didn't look the way I do or do the type of work thatI do? Why don't you feel this information is valuable in yourlegal/professional formation?

94. See Nancy Levit, Critical of Race Theory: Race, Reason, Merit, andCivility, 87 GEO. L.J. 795, 795-96 (1999) (noting instances of dismissivetreatment of critical legal theory in both popular press and academia);Anderson, supra note 87

95. See Mary I. Coombs, Outsider Scholarship: The Law Review Stories, 63U. COLO. L. REV. 683, 689-91 (1992) (discussing how many legal scholars arereluctant to write critical or feminist scholarship due to lack of institutionalsupport and reluctant publishers).

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V. CONCLUSION: EMBRACING CONFRONTATION

Asking these questions and pursuing confrontation will openthe dialectical dialogue that is vital to a Crit pedagogy. If weforeclose that door out of fear of not being promoted, not beingdeemed a good teacher, or being disliked, we are failing ourselvesand the students. If we decide to engage in traditional pedagogicpractices, such as having a hierarchical classroom, we failourselves and the students. If we change the contents of thecourses we teach to fit in the norm, we fail our ideals and thestudents. Our commitment to the critical project includes aconstant influx of challenges and confrontations.

Bringing a horizontal classroom, a true Socratic Method, acritical analysis of the hegemonic vision of the Law, acommitment to diversity, the adoption of non-traditionalmaterials to the law school classroom will be met with resistance.We will face resistance to the content, to the methodology and toour persona. That resistance must not be ignored, but confronted.Confrontation is an inherent component of the contestationprocess of hegemonic practices; failing to understand that couldbe our greatest demise.96 Our best bet is to embrace confrontationas part of the didactic process that will lead us to the freedomrequire to attain a more egalitarian legal system, andsubsequently a more fair society.

96. In no way does that mean that we should abandon our fights on otherfronts. We still must make sure that the structural barriers that preclude amore egalitarian system from flourishing or more diffused access to justice fromcoming to fruition are eradicated. We must still fight for more inclusiveadmissions policies, a shift of school hierarchy, and inclusion of social projectsas part of the curriculum of law schools.

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if these blackboards could talk: the crit classroom, a battlefield

Documents