We write as faculty who teach and research in the field of legal ethics to support the law students’ letter, “Dear SLS, Racism Lives Here Too,” published last week in these pages. All professional schools have a duty to prepare their students to enter the workforce with more than technical knowledge and skills in their chosen calling. Professionals serve clients whose needs, experiences and cultural backgrounds are diverse. They also work in diverse and increasingly collaborative settings. Put simply, professional competence demands cultural competence. That means having the skills to build empathy, trust and open dialogue across differences in experience, interest and identity (not only race, class and gender, but also moral, religious and political viewpoints). It means being alert to problems of confirmation bias, group-think, implicit bias and other cognitive barriers in order to have accurate fact assessment, independent judgment and meaningful communication. And perhaps above all, it means having conflict resolution skills that are honed not merely for esoteric legal, medical or scientific debates, but for the often difficult and deeply emotional aspects of personal interaction in which expert knowledge is brought to bear – moments when clients and colleagues may be at their worst, at their most vulnerable, struggling to express themselves or all too articulate but painfully oblivious to the needs, interests and perspectives of others.
These moments arise not just because people intend to offend or to provoke conflict, though the recent incidents of white supremacist harassment of students of color at the law school are craven examples of both. They arise because we all err despite our best intentions. They arise because we are a pluralistic society and many ideas about the good life compete for recognition (in law, in medical approaches to pain and healing and in the ways engineers and entrepreneurs define and pursue innovation). And, significantly, they arise in the professions because there is a long, well documented history of failure on the part of elite professionals and elite institutions to respect these differences.
That puts it mildly. In the field of law, for example, elite American lawyers worked actively over the last two centuries to exclude women, African Americans, immigrants and other minorities, from the practice of law. Clara Shortridge Foltz, a first wave feminist and the first woman lawyer in California, was informed by a prominent male lawyer to whom she applied for an apprenticeship that a “woman’s place is at home,” and in the San Jose Inn of Court she wished to join to moot cases with male lawyers, the infamous Dred Scott opinion was quoted in defense of the view that women had “no rights a white man is bound to respect.” Charlotte E. Ray, an 1872 graduate of Howard University and the first African American woman in the nation formally admitted to practice, abandoned law by 1879 when it became clear that she could not, because of her race and gender, secure enough business to remain in practice. And even after members of these groups were finally granted broader admission in the twentieth century, elites used the bar’s regulatory power to interfere with their efforts to make real the constitution’s guarantee of equal protection of the law. See NAACP v. Button, 371 U.S. 415 (1963). Wide gaps in representation, professional recognition, and compensation persist, particularly at elite levels of the profession.
This history of exclusion is living history in still other ways, shaping what the law is, how it is practiced and what voices and viewpoints are assumed to have authority. This in turn makes the transition into the practice of law especially delicate for women and minorities who grapple with the law’s failure in deeply personal ways in every field of study. Resilience, empathy, courage, insight, keen analytic powers and many other skills essential to professional success can and do emerge from that struggle. But it is not easy, and in the wrong environment it can be profoundly alienating.
Stanford Law School has taken many important steps to improve its support for diversity. But we owe more to our students, to the clients they will serve and to the administration of justice. We applaud the candor of our students and their courage in raising these difficult issues, we pledge our support and we encourage the administration to take decisive action to address these challenges. This institution can and should distinguish itself by the intensity and creativity of its response.
Nora Freeman Engstrom
Professor of Law
Associate Dean for Curriculum
Deane F. Johnson Faculty Scholar
Robert W. Gordon
Professor of Law
Lawrence C. Marshall
Professor of Law
Deborah L. Rhode
Ernest W. McFarland Professor of Law
Director, Center on the Legal Profession
Norman W. Spaulding
Nelson Bowman Sweitzer & Marie B. Sweitzer Professor of Law