Abstract
Excerpted From: Phyllis C. Taite and Nicola “Nicky” Boothe, Teaching Cultural Competence in Law School Curricula: An Essential Step to Facilitate Diversity, Equity, & Inclusion in the Legal Profession, 2022 Utah Law Review 813 (2022) (114 Footnotes)(Full Document)
A judge made national news when a video was leaked of her and her family using racial slurs. A lawyer's racist rant, where he threatened to call Immigration and Customs Enforcement on New York restaurant workers because they were speaking Spanish, went viral and earned him a public scolding by the court. The defense team for Ahmaud Arbery's murderers had an issue with Black people on the jury and sought to have the judge bar high profile members of the Black community from the courtroom. That same defense team used racist tropes as part of the closing argument to appeal to the presumed racial bias of a nearly all-white jury.
Sadly, these were not isolated incidences of racist or racially insensitive behavior from the bar and the bench. Despite subsequent expressions of remorse, racist behaviors raise concerns about the underlying root causes or belief systems that fueled these previous actions. Such root causes and implicit beliefs have the potential to impact future judicial decisions, defense strategies, and prosecutorial discretion where applicable. These concerns are not limited to the criminal justice system; however, this is where the greatest impact is often most visible.
Questions of racial bias and racism in the law are not new. Technology and social media have, however, made it easier to expose them nationally and globally. In perhaps the most famous example, a teenager's recording and social media exposure of the murder of George Floyd was the catalyst for worldwide protests and renewed calls for racial justice.
Global protests and the subsequent trial of Mr. Floyd's murderers highlighted systemic racism and deeply-rooted problems of bias in America, oftentimes bred from a lack of cross-cultural understanding. Coupled with the national attention of racist behaviors of some judges and lawyers, these protests simultaneously highlighted the need for diversity of thought, and the lack of cross-cultural understanding, in both the bench and the bar. These examples underscore the need for acknowledgment and appreciation for how race and culture influence all aspects of the legal system.
Integrating cultural competence in the legal profession is a necessary step to combat pervasive inequities and inequalities. As lawyers, we have an obligation to act equitably, transparently, and with integrity. As law professors, we have an obligation to prepare our students for effective, ethical, and responsible participation in the legal profession. Accordingly, it is incumbent on the legal academy to instill cultural competence into the curricular framework of legal education as a critical step in facilitating diversity, equity, and inclusion (“DEI”) in the legal profession.
The American Bar Association (“ABA”) has further recognized the importance of expanding DEI in legal education. The May 2021 Standards Committee Memorandum on Proposed Changes (“ABA Memorandum”) outlined a number of proposed standards for expanding DEI for law schools, including, but not limited to, training on bias, cross-cultural competency, and racism for law students, faculty, and staff Reco gnizing that academic integrity requires law schools to prepare future lawyers for a world where racism and bias exists, the ABA adopted the proposed standard in February 2022. The new Standard 303 (c) dictates that “[a] law school shall provide education to law students on bias, cross-cultural competency, and racism: (1) at the start of the program of legal education, and (2) at least once again before graduation.”
The ABA's implementation of this standard acknowledges that law schools provide the best opportunity to create a foundation and reinforce these additional competency skills for new lawyers. As schools across the country determine how best to meet the new standard, it is critically important that law school faculty understand the value of cultural competency training, and that law schools be provided with key considerations in planning curriculum to provide such training.
Part I of this Essay provides the path to integrating DEI in the legal profession, beginning with a definition of cultural competency and providing an explanation of the importance of cultural competency teaching on DEI in the legal profession. Part II will explore barriers to teaching cultural competency, followed by Part III, which provides specific strategies to conquer those barriers. Part IV focuses on specific strategies for the first-year curriculum, and Part V suggests ways to avoid common mistakes. The Essay concludes with a call to action for workable modifications to law school curricula to ensure appropriate training for professors and the next generation of lawyers.
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A lawyer who lacks cultural competency skills will be deficient in the tools necessary to fulfill the obligation of competence under the law. And law schools who fail to offer education on the topics risks endangering ABA accreditation. Law schools have a unique opportunity and important responsibility to educate the next generation of lawyers and ensure their competency to serve a diverse population. As such, law professors must do more than transfer legal knowledge to students. Professors must not remain silent about topics regarding culture, diversity, equity, and inclusion in mainstream doctrinal classes and expect such issues to be discussed only in affinity-specific electives. Silence on these topics in doctrinal courses will speak volumes to matriculating students and send the message that cultural competency is not important or may casually be attained over time.
Law schools must recognize and seek to remove the barriers to teaching cultural competence and DEI and provide appropriate training and workshops for law professors. Providing law professors with the tools to integrate cultural competency into existing curricula is a first and crucial step to ensure that law professors are well-versed in both their own cultural competency, and in the ability to provide cultural competency training to their students. The culturally competent student will become a culturally competent lawyer with the skillset to make impactful contributions towards DEI in and beyond the practice of law.
Phyllis C. Taite. Professor of Law at Oklahoma City University School of Law.
Nicola “Nicky” Boothe. Visiting Professor at Boston University School of Law.
