Become a Creator today!Start creating today - Share your story with the world!
Start for free
00:00:00
00:00:01
S4E05: Affirmative Action and the Supreme Court, with Erwin Chemerinsky, AALS President and Dean of Berkeley Law
18 Plays2 years ago
Co-Dean Kimberly Mutcherson is joined by Erwin Chemerinsky, President of the AALS and Dean of Berkeley Law, who shares his thoughts and perspectives on the Supreme Court and the future of affirmative action at American universities and law schools.
The Power of Attorney is produced by Rutgers Law School. With two locations minutes from Philadelphia and New York City, Rutgers Law offers the prestige and reputation of a large, nationally known university combined with a personal, small campus experience. Learn more by visiting law.rutgers.edu.
Production Manager: Shanida Carter
Series Producer & Editor: Nate Nakao
Recommended
Transcript
Erwin Chemerinsky's Career Journey
00:00:08
Speaker
My name is Kim Mutcherson. I am the co-dean of Rutgers Law School, and this is the power of attorney.
00:00:15
Speaker
So we have an absolute heavy hitter with us today and I am so excited to have him here. Our guest today is Erwin Chemerinsky. He is the current dean at Berkeley's Law School. He was the founding dean at UCI Law and also just happens to be the president of the Association of American Law Schools and without a doubt one of the most preeminent constitutional law scholars in the country, if not the world.
00:00:41
Speaker
So this is a really wonderful time to get to talk to you Erwin and as I said I really appreciate your time and I'm looking forward to our conversation.
00:00:48
Speaker
Thank you. It's such a pleasure for me to be with you. Thank you for doing this podcast and thank you for including me. Absolutely. So I want to start with you the way I start with all of our guests, which is what's your origin story? There are so many
First-Gen Law School Experience
00:01:01
Speaker
things that you could have chosen to do with your life and yet you chose to become a lawyer. So were you one of those little kids on the playground or was it later in life when you decided that this is what you wanted?
00:01:11
Speaker
Later in life, I grew up in a working class family on the south side of Chicago. I was the first in my family to go to college. Neither my parents, my brother's sister went to college. And if you had talked to me while I was in college, I would have told you, I wanted to be a high school social studies teacher. I took all the classes in college to get my teaching credential. I did my student teaching. I got my teaching credential. And the last moment you could sign up for the LSA team, my senior year of college, where you could still take it to go the next year, I signed up.
00:01:41
Speaker
I don't know if there were test preparation courses then. I certainly didn't take one. I applied to law schools, but the last you could apply to still be considered got in, and I've got to say, I went with the thought, I'll see what it's like, and if now I'll go be a high school teacher. But what inspired me to go to law school was the civil rights lawyers of the 1950s and the 1960s.
00:02:02
Speaker
I wanted very much to do what they were doing. And I always had in the back of my mind, well, someday maybe I'll be able to teach. I took a job at the Department of Justice and then worked in a small public interest law office.
00:02:18
Speaker
fell into a teaching job just by being in the right place at the right time, taught my first class in August of 1980, and went home and said to my wife, this is what I want to do for the rest of my life. I love that. Still a lawyer. I still argue cases. I have a Ninth Circuit argument and a big immigration case on December 8th. Don't do nearly as many arguments before I was a dean, but still think of myself as a civil rights lawyer.
Improving Access to Legal Education
00:02:41
Speaker
I love that. But I discovered my real passion is teaching.
00:02:45
Speaker
Yeah, I love that. I love that. It's such a familiar story to me. Many of the people who I've interviewed on the podcast, and one of the reasons why I like doing the origin story is how many folks who I have interviewed who are first gen college or first gen law school and who sort of accidentally found themselves in legal education. And I think that there's something really powerful
00:03:08
Speaker
about being somebody who didn't grow up in a family of lawyers and all of that good stuff, but who ultimately found yourself in this role. And I wonder whether there are ways in which you think that experience of coming from a family that wasn't filled with lawyers has really informed how you think about the law and also potentially how you think about legal education.
00:03:29
Speaker
Absolutely. Of course, for each of us, our background influences how we look at the world. And I'm enormously sensitive to the importance of access to higher education. I couldn't have gone to college but for scholarships. I couldn't have gone to law school but for the ability to borrow enough money and to work two jobs while I was in law school.
00:03:53
Speaker
And what we've got as deans to be focusing on, what we have to focus on as a profession is how we ensure access to people. So it's not
Cost and Funding of Law School
00:04:02
Speaker
just those who are children of professionals who have the opportunities.
00:04:05
Speaker
Absolutely. Absolutely. And, you know, it's been really interesting. I mean, obviously, I have not been I have not been a dean as long as you have. And I would definitely describe myself as an accidental dean as much as I am an accidental law professor. But certainly from, you know, this side of the of the of the desk, you have to think really deeply about, you know, how do we create institutions that are accessible, as you say, but that also allows students to learn the things that they need to learn.
00:04:34
Speaker
in order to become the kinds of lawyers that they want to be and hopefully the kinds of lawyers that we want them to be. And so as somebody who's been in legal education for quite some time, I wonder if you sort of have thoughts about where we are now and where you'd like to see us go, especially now that you're president at AALS.
00:04:57
Speaker
I've thought a lot about this. I think it requires action at many levels. I want to see us as a profession do much more to create, and I'm going to call them pipeline programs for students in high school and college. The WLS did a before the JD study that showed how disproportionately people who go to law school made that choice before they were in college, disproportionately going to law school are the children of those who are college educated and have professional degrees. We need to have programs that reach out to
00:05:28
Speaker
wide communities to high school students, to college students. I mean, I was very proud of it. When I was the Dean at UC Irvine, we created a program with the Santa Ana and Garden Grove schools. These are school districts over 99% Latinx individuals. We created a summer program for college students who have disadvantaged backgrounds. So I think one thing that we, and I mean law schools in the profession you do, is much more in terms of pipelines that way. Second, we have to tackle the issues of cost.
00:05:57
Speaker
Right now, at Berkeley Law, if you're an in-state or your tuition is over $60,000 a year, and if you're not a state, it's about $70,000 a year. That's because the state has almost entirely eliminated funding for public
00:06:10
Speaker
professional schools. You get net about five percent of our budget from the state of California. So we have to finance ourselves the same way as private schools. But along with that, we've then got to find ways of creating access. So one of the things I'm most proud of that I've done in my five years as dean here is we've almost doubled our scholarship budget.
00:06:28
Speaker
was when I came just under $15 million, and this year is about $27 million. We have to find ways of doing that. We also have to find ways of getting the message out to people that if they can't afford law school, we have scholarships for them. So sticker shock doesn't keep them from applying.
00:06:45
Speaker
And then we've also got to find ways to help those who want to pursue non-big firm careers that the tremendous debt that our students are graduating with constrain their choices. So again, one of the things I'm proud of we've done here is we've just revamped our Loan Repayment Assistance Program so that I think
00:07:04
Speaker
Probably the other NYU Law School, we have the best loan repayment assistance program for students pursuing public interest careers. We have fellowships for every student in the summer after first year, second year, who wants to do public interest work. We have some fellowships that we pay for after graduation to launch public interest careers. So
Public Engagement with Legal Issues
00:07:21
Speaker
we need to face all of these issues with regard to cost.
00:07:24
Speaker
Yeah, absolutely. And everything that you've said resonates so deeply with me. And I especially want to talk about the pipeline program. So here at Rutgers, I think this year about 60% of our entering class are folks who are first gen to law school. And one of the things that so many students of our first gen students have said to me over the years, particularly the students of color, is I never met a lawyer who looked like me.
00:07:51
Speaker
until I came to law school. And of course, it's hard to be what you can't see. And so even, not even just the pipeline programs, but even I'm going to talk to a charter school, a high school in Newark, New Jersey in a couple of weeks, that's an all girls high school. And it's even just those moments that can be very small, but that can be really life-changing sometimes for students.
00:08:17
Speaker
Absolutely. I never met a lawyer until I was my first law professor in law school. I was a lawyer. Wow. My parents didn't have friends who were attorneys. I didn't know any growing up. Obviously, for my children, it's a very different experience. When I was in Irvine, I used to go to every middle school and speak to the eighth graders because they study the Constitution. And I think we just as a profession
00:08:42
Speaker
law professors, lawyers need to be out there much more talking to the middle schoolers and the high schoolers and going to the Rotary clubs and the Lions clubs and the like because this is how we can create pipeline programs.
00:08:54
Speaker
Yeah, absolutely. And that actually sort of leads me to another part of the conversation that I want to have with you, you know, sort of thinking about what what can we do as lawyers and law professors, not just in terms of helping people think about whether they want to become lawyers, but also helping people understand our systems better. You know, one of the things I think has been really interesting over the last several years is, you know, the kinds of conversations that we've been having in mainstream media about the Supreme Court.
00:09:23
Speaker
I think that conversation has been quite different over the last few years than it has been in the years prior to that. I would love to talk with you. Obviously, you are somebody who continues to litigate. You are an expert on all these issues. I do want to talk to you about some of the cases in front of the court this year, but in general, I feel like there is a sense of
00:09:47
Speaker
I don't know, disappointment a little bit? Certainly that some of our law students have about the Supreme Court right now. And so what are your thoughts about sort of where we are as a country and certainly where we are as a profession when we think about these revered institutions and how, as some have said, they are losing legitimacy, particularly the Supreme Court.
00:10:10
Speaker
Let me separate your question into two parts. Where you began was talking about the obligation to inform the general public. And I think that's enormously important. I regularly write op-ed pieces because I believe it's important that we speak not just to other academics and to lawyers, but to the broader community. I do everything I can to encourage our faculty to do that.
00:10:33
Speaker
Podcast like this are so crucial in conveying what the law is about to a wider audience writing books for trade presses rather than just for academic presses to try to inform at least that segment of the public. And so I do think that is an obligation and it's not the things
Student Attitudes Towards Supreme Court
00:10:50
Speaker
that schools count when it comes to promotion and tenure.
00:10:53
Speaker
Right. I don't know of any schools, and I don't think they should. And not that isn't scholarship. A blog post isn't scholarship. A Twitter feed isn't scholarship. But they are important in terms of another part of our obligation as citizens in the country. Yeah. In terms of the latter part of your question,
00:11:09
Speaker
I've been a law professor, as you alluded to, a long time. This is my 43rd year teaching constitutional law. I've never seen my students is dejected about the Supreme Court and the Constitution as they are now. Now, to be clear, that's not all of the students. Conservative students are jubilant, conservative who wanted perhaps century. But I gave a lot of thought last spring in teaching constitutional law, or this semester in teaching criminal procedure in the law school,
00:11:35
Speaker
the attitudes of the students about the Supreme Court. And I don't think we can teach constitutional law or anything about the Supreme Court the same way we did before. I also don't have any definitive answers or wise guidance.
00:11:51
Speaker
I recently, because I get to write this essay for the double ALS newsletter, wrote about this for the newsletter that's coming out. And I said, I think that there's a lot of things that we as professors need to acknowledge. First, the importance of the students learning the legal doctrines.
00:12:06
Speaker
even if they disagree with those doctrines and even if they're very skeptical about the Supreme Court as an institution. The reality is most of our students are going to be practicing in state trial courts or federal trial court, state court of appeals, federal court of appeals. Some may argue cases in the Supreme Court down the road, but
00:12:23
Speaker
Even though the constitutional law course is focused on that, that's not what they're going to do. So I'm teaching criminal procedure. My students still need to know the exceptions to the warrant requirement. However much they dislike the Supreme Court because if they're going to be a prosecutor, public defender, they're going to have to deal with that all the time. Second, I think it's important that our students realize that the decisions are a product of who's on the court. The law doesn't exist apart from individuals.
00:12:48
Speaker
That's not new now. When I have an argument in a federal court of appeals, I want to know as soon as I can, who's my panel. And I can look at the panel sometimes and say, unless I really mess up, I'm going to win. And sometimes I can look at the panel and say, I can let my puppy argue the case. Yeah, it was going to be exactly the same.
00:13:04
Speaker
We shouldn't hide that from students. Third, I think we need to teach our students a critical perspective. What I hope my students get from the first day, whether it's my undergraduate class or my law school class, is just because the Supreme Court says it doesn't mean it's right, even if they say it's not unanimously, that doesn't mean it's right, you have to decide for yourself. And we need to give them those critical tools.
00:13:25
Speaker
Fourth, I think we need to help our students develop their own affirmative vision of the Constitution, of the American government. What I tell the more progressive students is conservatives did a really good job of this for half century, developing their vision, their theory of constitutional vision. Well, progressives needed that.
00:13:43
Speaker
And finally, to me, this is the hardest. We need to find a way of giving hope to our students, and it can't be a false hope. And it's hard when we don't feel that hope. I'm very pessimistic about what the court's going to be for the rest of my life. I can take inspiration from the passion of my students. I can try to find hope in the sweep of history, but I can't lie to them either. Yeah.
00:14:06
Speaker
Yeah, absolutely.
State Constitutions in Legal Education
00:14:07
Speaker
There were so much richness in there and I want to pull out a couple of the pieces there. One of them is thinking about, and I was very lucky because when I came here to Rutgers and really up until just a couple of years ago, Bob Williams was on our faculty who was one of the foremost experts on state constitutions in this country. And one of the things that I have been talking about with students is the importance
00:14:32
Speaker
of state constitutional law, as you said, and I wonder what your sort of vision is of how maybe even law schools need to think differently about how we teach, right? There aren't that many law schools that have a state con law class. I wonder if that's something that we should be thinking about a lot more in terms of helping our students understand that the world we operate in is much more complicated than just what has the Supreme Court said.
00:14:57
Speaker
Yes, we do need to help our students see other paths to social change because it's not going to come in a progressive record from the Supreme Court. One of those paths in some areas is state constitutional law. Now, we've got to be clear, where the Supreme Court says the Constitution is silent and it doesn't create a right, states can create the right. Absolutely. And so that's true of the abortion area. But where the Supreme Court finds a constitutional right, no limit.
00:15:23
Speaker
like they've done in the second amendment area or fear they're going to do with affirmative action, then states and state constitutions aren't able to do it. I mentioned I'm teaching criminal procedure. There are a lot of places where state courts under state constitutions have provided more rights than exist.
00:15:38
Speaker
from the Supreme Court and the U.S. Constitution. So I constantly am referring to that. Examples, I mean, because it's not a survey. I think the law school is offering courses on state constitutions. It's really important, especially in a place like California, where we have a Supreme Court that's more progressive than the U.S. Supreme Court and where they are willing to find rights that aren't under the U.S. Constitution. I can't say that's true in every state.
00:16:02
Speaker
Right. Right. Absolutely. And then of course we're also seeing ballot initiatives now to try to change state constitutions. So I think we're in a real renaissance for state constitutions for many years to come. The other thing that you
00:16:17
Speaker
said, you talked about how important it is for us to teach our students critical perspectives on the law. And we've been having that conversation here at Rutgers, obviously, and I think at a lot of law schools and thinking about, particularly after the murder of George Floyd, you know, what is it that we're doing? Are we giving our students something more than just black letter law? And if so, what should that look like? So one of the things that we did here is we started, it's still a pilot, but we started
00:16:44
Speaker
a law and inequality class for our first year law students. It's an elective and each professor who teaches it gets to teach it sort of from their scholarly perspective. So mine, for instance, focuses on reproductive justice.
00:16:59
Speaker
I often say to students that I think that law schools are very conservative spaces, and I don't mean that in a political sense, but that we're not places that change very quickly or that change very often. But as we think about these questions of how do we teach our students to be critical consumers of the law, what are some of the other things that you think we could be doing institutionally to help develop that skill in our students?
Integrating Critical Perspectives in Curricula
00:17:24
Speaker
I think you're right in terms of law schools are overall slow to change, but that's true of every institution. I think it's the nature of institutions that change is difficult. I mean, I look at the changes in legal education, say, over the last half century, and they've been substantial. I think they often get overlooked. I think in answer to your question,
00:17:46
Speaker
Pam's most important is what goes on in the individual courses, that how professors are approaching the material. And I would hope that
00:17:55
Speaker
especially after the racial reckoning, after the death of a foot, many more courses throughout the curriculum are bringing in issues of racial justice, whether it's a contracts class focusing on race and contracting or a property class, but much more self-conscious about that through the curriculum. Second, I agree with you in terms of new courses. Even before the ABA requirement, Berkeley Law adopted a requirement that all students take a race in the law related course
00:18:25
Speaker
sometime from the second semester of their first year until graduation and from a menu of options. And that will begin with the class that enrolls in August of 2023. I think clinics are really integral to this. For many reasons, I'm a huge supporter of clinical education, but I think it also is a place of integrating the doctrine with the practice and a place of teaching critical perspectives.
00:18:52
Speaker
Absolutely, absolutely, yeah. I always encourage students, I always say to them, you cannot graduate from law school without doing a clinic. And I still think about my clinic clients decades after I graduated from law school. It was a very formative experience for me.
00:19:09
Speaker
I would say the best part of my legal education without question was the two years I spent doing the Legal Aid Bureau. Yeah. Yeah. So I want to shift gears again a little bit because I want to, obviously, when I have this kind of brain here, I want to be able to pick your brain a little bit about where we are in terms of constitutional law and the just seismic shifts.
00:19:32
Speaker
that we are seeing coming from this court. As you know, I'm a reproductive justice scholar, so the decision in Dobbs has just been devastating in a whole host of ways. But I think it's a decision where there are intricacies to it that maybe everybody doesn't
00:19:49
Speaker
totally understand. And for instance, one of the things that I think people found very confusing was this idea of, well, we're only going to decide that it's a fundamental right if it's rooted in the nation's history and traditions. Can you help people understand what's going on there? Sure. And I'll also share a realization I just had this past weekend about Dobbs, as much as I've been thinking about it and writing about it. Justice Salido writes by saying, we're only going to protect a right if it's in the text,
00:20:17
Speaker
or part of the original meaning, or a long unbroken tradition deeply rooted in this country's history. And then he says, abortion is not such a right. At the end of the opinion, he says, but don't be worried about other rights.
00:20:34
Speaker
like the right to purchase and use contraceptives, the right of consenting adults to engage in same-sex activity, the right to same-sex marriage. He says those rights are secure because they don't involve potential life. Now, if rights are protected only if they meet the criteria here articulated at the beginning, then none of those rights will continue to exist and they'll all be overruled. Or what he's saying is we will continue to protect rights
00:21:01
Speaker
even if they're not in the text part of the original meaning or long unbroken tradition, so long as they don't involve potential life.
Impact of Dobbs Decision and Supreme Court
00:21:08
Speaker
Which then means that what this case is about isn't whether it's in the text, the original meaning, or long unbroken tradition. Because he says, that doesn't matter. We will protect rights that don't meet that. What this case is entirely about is the court's judgment that the state can decide its potential life. And everything else then becomes window dressing.
00:21:26
Speaker
Right. Right. Yeah. Yeah. I mean, you know, it's going to be sort of interesting, obviously, to see how all of this shakes out ultimately. And, you know, we're watching Congress try to deal with the fears that people have about marriage equality. And we're going to see all these other sorts of things that play themselves out as well. But I think one of the things that I have found really challenging coming from this court is the sort of whiplash
00:21:50
Speaker
They take a position in a particular case and then it feels like two weeks later, they issue a different opinion, which seems to be coming from a completely different sort of place. And I think that that's the thing that lots of people are concerned about as we go into this, as we're already in this next session.
00:22:08
Speaker
I wish it were whiplash because whiplash would suggest they're going back and forth. I think they're going in one direction and it's a very conservative direction. I think this is a court that has an agenda. It's the agenda that's been articulated by conservatives for decades. It's overrule Roe versus Wade, end affirmative action, protect free exercise religion, including the ability of people to discriminate against others on account of the religion.
00:22:37
Speaker
I wish it went back and forth. It didn't. It's all very conservative. Yeah, yeah. It's definitely a one-way ratchet right now. Well, let's talk about the affirmative action case then. And of course, there are other cases that are happening this term, the Barqeen case about the Indian Child Welfare Act. There are definitely other cases that are deeply concerning as well. But the affirmative action case, for those of us in education, or cases, I should say,
00:23:05
Speaker
the potential impact there is really quite astounding. And so I want to help people, again, to try to help people understand a little bit about what's going on with these cases and why they're potentially different from some of the other affirmative action cases that we've seen. And one of the things that I think is quite different is who the plaintiffs are in these cases. So can you talk about that a little bit?
00:23:29
Speaker
Sure, and maybe his background, in 1978, in Regency of the University of Mesbaki, the Supreme Court indicated that college universities have a compelling interest in their diverse student body. And just as Paul expressed the view that race could be used as one effect among many in admission decisions,
00:23:46
Speaker
to benefit minorities and enhance diversity. In Groot versus Bollinger in 2003, the Supreme Court reaffirmed college, university of a compelling entry, diversity in body. They use race as a factor in admissions. And as recently as 2016, in Fisher versus University of Texas at Austin, the Supreme Court reaffirmed that. But two of the justices who in the majority in Fisher, just Kennedy and Ginsburg, are no longer on the court. There are three new conservative justices since then.
00:24:15
Speaker
Gorsuch, Kavanaugh, and Barrett. And Chief Justice Roberts and Justice Thomas and Alito are vehement foes of affirmative action. So it would seem that there's six justices to overrule Bakke, Grutter, and Fischer.
00:24:31
Speaker
And the cases were argued, the North Carolina and Harvard cases, on October 31st. And nothing that happened in five hours of oral argument left out my mind that spring was going to overrule Baki Grutter and Fisher. The plaintiffs in both cases are a group called Students for Fair Admissions. And it's funded by a man by Edward Blum.
00:24:52
Speaker
And the Harvard case is focused especially on whether the Harvard Affirmative Action Plan discriminates against Asian Americans. That's not an issue in the North Carolina case. The problem, if the court was being, following usual practices, the federal district court judge found, as a matter of fact, that there wasn't discrimination against Asian Americans, and that should be binding on the appellate courts.
00:25:19
Speaker
whether it will be binding on the Supreme Court, we'll see. But I think that this isn't about the fact finding in the case.
Affirmative Action Cases and Diversity
00:25:26
Speaker
This is about part of the conservative agenda for decades, isn't to eliminate affirmative action. There's now the votes to do so in the Supreme Court.
00:25:34
Speaker
Right. And we've seen this happen on state levels. I mean, we've seen it happen. You're in California. So you, of course, remember, not just remember, but you live with the aftermath of California on a state level, deciding that affirmative action could no longer be used in higher education. And of course, there was a huge dip, particularly in Black students at universities in California after Prop 209 passed.
00:26:01
Speaker
But there has been a rebound, and so I wonder a little bit as we're trying to imagine a world in higher education without affirmative action, there have been other ways that states have tried to continue to create diversity in their universities. Do you see that as a long-term solution once affirmative action goes away, or is there still a lot more work that we need to do?
00:26:28
Speaker
I think the answer is yes to everything you just said. In 1996, California voters passed Proposition 209. It says that the state, in all of its parts, can't discriminate or give preference based on race or sex in education contracting employment. In the years immediately after Prop 209, there was a dramatic decrease in African-American and Latinx students, especially at the most selective UC schools, Berkeley and UCLA.
00:26:57
Speaker
the number of Black freshmen from 1995 before 209 to 1998 after 109 fell by half. It took UCLA almost 20 years to get back to the level of diversity that it had prior to 1996. It took enormous efforts, a great deal of trial and error to find ways to achieve diversity.
00:27:24
Speaker
I fear that we're going to see it selected college universities, law schools around the country is a similar immediate decrease. I think it will take them concerted effort.
00:27:37
Speaker
I worry, frankly, that some of the schools won't make that effort, that they will say, we just have to give up on it. Even for the schools that want to do so, they can learn a lot from California and places like that. We're going to do a program for the double LS on July 10th on how to achieve affirmative action in light of the Supreme Court's decisions. We obviously can't do it until the case is coming out.
00:28:01
Speaker
But one thing to look for as we read what the Supreme Court says is to what extent does their opinion cast doubt on using proxies to achieve diversity? Right. In the Fisher case,
Maintaining Diversity Without Affirmative Action
00:28:14
Speaker
the University of Texas created a top 10 percent plan where they would take the top 10 percent of high schools through the state. That works obviously for undergraduate. It doesn't work for law schools. But if it's done with the goal of increasing racial diversity and it is the effect of doing so,
00:28:29
Speaker
Is it then impermissible? Because a lot of the ways that schools have tried to there's nine states that prohibit affirmative action already in places like California is one of nine states. There's a lot of use of what can we look at instead that's race neutral that will yield racial diversity. One of the first things the University of California learned was
00:28:48
Speaker
class doesn't achieve racial diversity. Giving a preference based on people from diverse social classes doesn't yield racial diversity. It's simple arithmetic. The percentage of Black and Latinx individuals who are economically disadvantaged is much larger than the percentage of white individuals, but the number of white individuals who are economically disadvantaged is much larger than the number of people of color who are economically disadvantaged. So if you just do affirmative action based on class, you don't yield racial diversity.
00:29:18
Speaker
Right. Yeah. I mean, there's a lot of work that we have to do. And I think that part of that work, and this sort of goes back to our educational purpose, and back to my point about whiplash, although not about the Supreme Court, one of the things that I think has been so challenging over the last several years is that we did have this moment, this post-George Floyd moment where we were having these really
00:29:43
Speaker
rich and nuanced and painful in a lot of ways, conversations about race in this country and the history of race and the present of race in this country. And then suddenly we found ourselves in this, you know, elementary school shouldn't be teaching critical race theory and let's get books off
Discussing Race and History in Education
00:30:03
Speaker
the shelf. And we seem to have come to this moment where there is this
00:30:11
Speaker
I'm not even quite sure how to describe it other than this deep sense of discomfort with having the kinds of conversations that we would need to have in order to become a country that does better by all of its people. And I think a little bit about the idea, I guess, was it out of Grutter? Out of Grutter, the idea, well, 25 years from now, we probably won't need affirmative action anymore.
00:30:41
Speaker
And I'm really frustrated by this moment that we're in. And I wonder, particularly for those of us who teach in law school, in some ways it feels like maybe it's too late when we get to law school to really help students understand that where we are now is not an accident, that it is by design.
00:31:03
Speaker
I guess I'm just curious where you are in that space. And we talked about being frustrated and those things, but I would love to get a little bit of a pep talk, if you have it, in thinking about what we can do on our level, but also what needs to be happening in elementary schools and in high schools before people even get to us.
00:31:25
Speaker
It's easy to be pessimistic right now about the Supreme Court and also about the future of American democracy. I never thought that I would regard American democracy as fragile. I never thought that I'd be afraid that there really would be, in my lifetime, an end to American democracy. And I can see so many paths that take the country there. And our students perceive that as well.
00:31:52
Speaker
So what I say to the students, and I said it in my last class this past May for our constitutional students, I said it at commencement, is that at a point like this, we really only have two choices. We either give up or we fight harder, which means there's only one choice. We have to fight harder and better than we ever have before. As you said earlier, we have to look at other places to fight, whether it's through state constitutions, state courts, through ballot initiatives, through the political process.
00:32:21
Speaker
I believe that the Supreme Court's decision in Dobbs did contribute to what happened on November 8th. And it did lead to mobilizing people. But it's only a start. I do think that students come to law school often without a sense of history. I think that we do a bad job in this country of civics education more generally. And I think law schools are somewhat to blame for that.
00:32:50
Speaker
Yeah. So one of the things that's been really wonderful, so I don't get to teach as much as I used to now that I'm Dean, but as I said, I have been teaching this Law and Inequality class. And it sometimes shouldn't be at this point, but it is surprising to me when I'm talking to students about things like the history of eugenics in this country or
00:33:11
Speaker
Native American boarding schools and what they were trying to achieve and what that means in terms of family. And it can be, I think it can be very disconcerting for students sometimes to have those experiences and suddenly realize, oh, maybe the world is a lot more complicated than I was told it was.
Law as a Tool for Social Change
00:33:28
Speaker
Disconcerting is good. I think that's part of education.
00:33:34
Speaker
One of the things that I'm doing this semester is I'm teaching a large undergraduate class. And I'd never done that at Berkeley before, but had done it at other schools. Because again, I think it's so important to get law professors teaching college students to alert them to the kinds of things that we're talking about. I think it's important for law professors to go into high schools and do talks, junior high schools and do talks, rather than just when the students get to us lament, how could they not know this?
00:34:02
Speaker
Right, right. Absolutely. Absolutely. So, you know, we are at the point now where, you know, everybody's starting to admit students for next year and we're sort of thinking about what's the pool, what's the pool going to look like? What would you say to some, you know, to a 20 year old, 21 year old who's thinking, you know, maybe I could go to law school or maybe I could do something else. What is it about
00:34:28
Speaker
the law and about law school that people should want to be here. I went to law school, as we were talking about at the beginning of our conversation, because I believe that law was the most powerful tool for social change. It's not the only tool for social change. There's certainly the ability to effectuate it by going to public policy school or social welfare school or many other things. But for me, given
00:34:57
Speaker
My interests, I thought that if I want to make a difference in society and the world, law is the place to do that. Law school is also wonderful training, even if somebody never wants to practice law. As you know so well, the analytical training, the rigor of it is an enormous benefit to people. It also opens doors in a fast way of areas. I mean, one of the great things about law is how many different things some people do with a law degree, and how often people can, if they want to, reinvent themselves.
00:35:27
Speaker
Whether it's working in the political process or being in the legislature or legislative staff or doing litigation, we're just helping people. I mean, often lawyers are working with people the most difficult times of their lives when they're facing criminal prosecution or a death or divorce.
00:35:46
Speaker
And so it's all of these things that caused me to want to go to law school. And that's why I feel very comfortable encouraging people. I have four children who have gone to law school, who aren't going to go to law school. And I, of course, say, as I'm sure we all do, our kids, I just want you to pick the path where you think.
00:36:02
Speaker
you'll be happiest and you'll feel best about yourself and your life. But I had no hesitation in encouraging those two kids to go to law school. And one has been a lawyer a long time now and has loved his career. And the other is just a couple of years out of law school. But I don't think either of them have any regrets about their choice. I've certainly never had an instant regret about my choice to go to law school.
00:36:23
Speaker
Yeah, absolutely. I feel the same way. As we've been having these conversations at Rutgers in legal education in general, and I think in higher education in general, these conversations about how do we bring critical perspectives into the law school, and how do we talk about race, and how do we talk about difficult topics in the law school. And part of the pushback that we sometimes get from faculty is
00:36:47
Speaker
you know, the risk that I say something wrong and then, you know, and a student records it and the next thing I know, you know, I'm being canceled by this woke culture.
Balancing Critical Discussions and Comfort
00:36:57
Speaker
So I can't teach that way because there's too much risk involved in doing that. And I appreciate that. And I understand where people are coming from there. But it also seems like it is
00:37:10
Speaker
it's an excuse not to do the hard work. I wonder if you've sort of had that experience as well in talking to some of our colleagues about their concerns about being in a classroom where a lot of times you have to be vulnerable in order to have those kinds of conversations with students. And if so, what are some of the ways that we can help our colleagues feel more comfortable and more empowered to do this kind of teaching?
00:37:39
Speaker
It's a terrific question, and there's no single answer to it. Part of it is having faculty realize there's a risk in not doing it. Yep. That silence is a message to, if you're teaching, you can pick the course property, and you don't focus on the history of race and property, that's sending a message. And you might just as much be attacked for that.
00:38:03
Speaker
Second, we as deans have to support our faculty if there are times when the students react against them. I've had some instances here where students have reacted against faculty members, sometimes understandably, sometimes frankly unfairly. But I've got to let my faculty members know that I've got their back.
00:38:24
Speaker
try to tell this in a way that says I had a faculty member teaching a first-year course last year and some students discovered that about a decade ago he co-authored a piece that was critical of critical race theory and the students then said based on this we perceive him as anti-black we don't want to have to and it was a required first course we don't want to have to go to his class and I said
00:38:45
Speaker
No, you have to go to his class. I'm not going to excuse you from his class. And just because he was raising questions about critical race theory doesn't mean that he's anti-black or racist. So there is an instance, and now I'm involved with all sorts of instances where professors have said inappropriate things and have rightly drawn reactions. And then what I need to do is to work with them and say, okay, this is what happened.
00:39:11
Speaker
But still, I want them to make sure that I have their facts. I think it's important also when professors take chances, if it doesn't go well in terms of student evaluations, to be clear, student evaluations aren't the only measure that we use of teaching, the only measure used for motion and tenure, that we've got to encourage our faculty to take chances knowing, again, we're behind them.
00:39:30
Speaker
Yeah, yeah, absolutely, absolutely. And you know, one of the things, and I'll wind us down here, but one of the things that I love, and that also in some ways is the most difficult thing about being a teacher at all,
00:39:45
Speaker
as I say to people is, you know, we get older, but the students stay the same age. And so we're constantly, you know, readjusting to new generations of students who've grown up in a very different world from the world that we grew up in. And it's good. On one hand, it's really good for your brain to have to do that. But it's also it also really requires something
00:40:06
Speaker
of us to try to understand, okay, where are these students coming from? How are they positioned? And how can we, if we want the same things and often I think we do want the same things, how do we get there together?
00:40:19
Speaker
I was 27 when I became a law professor. My students were older than I was over my age. Then there was the stunning realization that all of my students were born after I had become a law professor. And then there's the stunning realization that all of the faculty who are hiring now at entry level were born after I already became a law professor. And obviously my way of relating to students
00:40:42
Speaker
now is a dean at 69 years old, is different than it was as an assistant professor at 27. And I have to be more sensitive. And I think there's ways in which the students have changed. I'm very skeptical of generalizations about generations. And I always am frustrated when I hear my colleagues saying, oh, the students today. They know our professor said, oh, the students today. And their professor said that.
00:41:08
Speaker
And yet there are differences, and we have to be sensitive to those differences. And we have to listen. Yes. One of the most important things, and I'm sure you do as a dean, I do a coffee with the students every two to three weeks with no agenda, or anyone can come and just get good cookies and brownies. I do a town hall with the students every semester, just to the chance to, I'm here to listen. I can't always agree with them. A lot of the requests, as much as I try, I can't do, but I can at least make the effort to listen and do what I can.
Commitment to Public Engagement
00:41:35
Speaker
Yeah, absolutely. And one of the things that I've become, I think, much better at as I've been in this business for quite some time is really helping students understand my expectations for myself in the classroom and my expectations for them in the classroom. That we will talk about controversial things. We will talk about things that are difficult. And that our profession is a profession where you use words. You have to be good.
00:42:02
Speaker
at using words, and if we can't have a conversation, and if we can't figure out how to use words in a way that allows us to leave and say, well, I didn't agree with you, but I understood where you were coming from, or I respect the fact that you were coming from there, that we're not doing a very good job, and I think you're not gonna be a great lawyer if you can't do that either. So I try to convey that message to students as well, but it can be challenging in the classroom, absolutely. It is, and I think a lot of things external to the law schools make it challenging.
00:42:33
Speaker
I think that what I'm seeing and hearing a lot about is the group pressure on the students to not express certain views, that if students say things, the social media will go after those students, which silences them. I have an interesting recent experience that supports this.
00:42:52
Speaker
The year before last, we, like most law schools, were entirely online. And I taught a large constitutional law class, and the way it worked was students could either raise their hand and speak, or they could write things into the chat that only I would see, and I would read whatever they wrote without censorship.
00:43:10
Speaker
I got more conservative participation than I have ever had. Last spring I taught the same class in person and the conversation was so different. I don't know how to empower the students to feel comfortable because not relative to my judgment.
00:43:27
Speaker
Right. Right. Absolutely. Yes. That's a very, very deep challenge and one that I think a lot of us are trying to sort through. So the last thing that I want to ask you, Erwin, you are somebody who is out in the world.
00:43:45
Speaker
You know, you're doing podcasts, you're doing interviews, you're writing opinion pieces. And I know that there are some law deans who say, listen, you know, I don't want to be political, right? I just want to focus on what my job is and I'm not going to get involved in these sort of controversial topics. And you've taken a very different position, I think, and one that I deeply agree with and also try to emulate.
00:44:10
Speaker
But I'm curious how you would describe why you've made that decision. You've got this position, and it's a very lofty position. And it's one where you could just say, all right, I'm just going to focus on what's going on in my law school and not worry about all these other things. You've made a different choice, though. And why?
00:44:31
Speaker
Some of it is about who I am. Some of it is about where I am. In terms of who I am, I was writing regular op-ed pieces before I became a dean.
00:44:44
Speaker
It was inconceivable to me that I would stop doing that. I was writing books for general audiences before I became a dean. It was inconceivable to me that I would stop doing that. In fact, I feel so fortunate that because of my position, I can get op-eds published. And I think having that opportunity
00:45:06
Speaker
I would be letting myself down if I didn't take advantage of it. Cause this is my chance to try to educate a larger audience and help shape public opinion about things that I care about. And so when I was hired to be a Dean at UCI, hired to be Dean at Berkeley, they knew that's who I was and that's who they were getting. But it's also where I am. I mean, especially at Berkeley, but even at UCI, I mean, UCI is in a conservative community, Orange County, California.
00:45:36
Speaker
I felt that I was able to do that in a way.
00:45:40
Speaker
Are there instances where I get angry messages from donors who say, you know, I've certainly gotten them at Berkeley, you should be fired because you shouldn't be taking positions on this? Okay, they can go to the chancellor and provost and express that opinion. On the other hand, I can also point to lots and lots of instances where my being out there has helped with alumni fundraising. One of the big gifts I got at UCI when I was a dean was a chair in first amendment law for the law school.
00:46:07
Speaker
It was somebody I never met. He was reading my op-eds in the LA Times and reached out to me. It started with a small gift, and then it became the Raymond Prichard and First Amendment law. There's a wonderful donor in Los Angeles who, again, it's a relationship that was built based on this person reading my op-eds in the LA Times. I'd like to believe that overall, my being out there has helped more than it's hurt, but I don't know, and any answer would probably be very self-justifying.
00:46:36
Speaker
Yeah, I think that the reason why both of us became lawyers, it doesn't disappear just because you go into the academy or just because you become a dean. If you're somebody for whom being a lawyer is about wielding these tools of justice and you respect those tools and you want to be able to use them, it's pretty hard to put them away just because you've got dean in front of your title.
00:47:04
Speaker
And I think if I had to make the choice, if the chancellor would come to me now and say, this is just causing too much controversy, you have to stop doing that. I think I would stop being a dean. And I respect many Decanal colleagues who would make a different choice. It just wouldn't be my choice. But that said, when the chancellor here hired me to be dean, she knew who I was. And that was a tremendous advantage.
00:47:32
Speaker
Yeah, yeah. And the last thing I'll say is I just think that there's just such power and authenticity, right? And that's something that I think that we want to really model for our students. Too often, people sort of say, well, because law is conservative, you need to wear the right kind of suit and you need to say the right kind of thing. You need to look a particular way. And my hope is that, slowly but surely,
00:47:56
Speaker
we're becoming a profession that is much more open to a lot of different voices and to a lot of different ways of being a lawyer.
00:48:03
Speaker
frankly. I hope so. And I think one thing that ties together a lot of our conversation is that we each have to be who we are. Yep. That I mean, I have to be who I am in the classroom. And my life is a very different life than yours or than my other colleagues. And they have to be their authentic self in the classroom. Well, the same thing is true with regard to being a dean. I have to be true to myself in that regard. And there's going to be people who don't like it.
00:48:31
Speaker
And I can accept that. And I can also accept that there could be a point at which those who I work for could say, I don't like it. I've just been fortunate I haven't had to deal with that. Right. And hopefully that continues to be the case. Erwin, thank you so much. This was just a huge, huge pleasure.
Conclusion and Acknowledgments
00:48:47
Speaker
And I'm looking forward to continuing to read your commentary and to learn from you for many, many, learn from you for many, many years to come.
00:48:55
Speaker
You're so kind. This has been truly my pleasure. Thank you for inviting me on your podcast. Absolutely. The Power of Attorney is produced by Rutgers Law School. With two locations, minutes from Philadelphia and New York City, Rutgers Law offers the prestige of reputation of a large, nationally known university with a personal small campus experience. Learn more by visiting law.ruckers.edu.