Abstract

Excerpted From: Rory Bahadur, Civility as Morally Justified Oppression, 30 Texas Journal on Civil Liberties & Civil Rights 89 (Fall, 2024) (224 Footnotes) (Full Document)

While Professional Identity Formation (“PIF”) in legal education remains a vague and poorly defined concept, one widely accepted norm of the PIF movement is civility in lawyering. This article demonstrates that civility, as a core concept of Professional Identity Formation, perpetuates the deeply rooted systemic racism in the legal profession. This holds true despite the sincere, antiracist agendas of its proponents. Even though it is not easy to define PIF precisely, according to the University of Richmond School of Law it “is an ongoing developmental process characterized by self-awareness and the intentional exploration of the values, guiding principles, and well-being practices needed to thrive in legal study and practice. [It] also encourages continual reflection on the attorney's role in society.” Generally speaking, this Article examines the problematic role the concept of civility plays in PIF given the reality that PIF is measured by normative standards based on the attributes of the dominant group in legal education. This reality perpetuates systems that “discounts people of color and other” marginalized communities. In this way PIF, although well intentioned, perpetuates a systemic structure that perpetuates white supremacy.

Civility itself is ironic. In this Article I frame civility as a set of behavioral norms imposed on society by those who obtained power brutally and uncivilly to ensure that there is never a similar transfer of power. Because of the nature of human social engineering and system justification, even the weak and disenfranchised members of society come to believe in the normativity of civility.

Against that backdrop, civility in America is ironic because historically, the dominant group in America achieved their dominance by the exact opposite of civility: by vicious acts of genocide, ethnic cleansing, and enslavement to acquire land and wealth. Suddenly though, after this brutal, murderous, and uncivil power transfer, civility is peddled as an inevitable and natural characteristic of society.

Furthering the irony is that meaningful societal change usually isn't achieved without some measure of upheaval, discord, and in most cases violence. In other words, imposing civility as a norm in legal education and society at large ensures minimal change to the legal profession. This ensures the legal profession, as one of the whitest and most racially exclusionary professions in the United States, remains a model of systemic racism.

Change, especially systemic change, is difficult. Often it will feel uncomfortable and almost like we are doing the wrong thing. This is because powerful, unconscious mechanisms reinforce systemic status quos. The fact that creating a culture of civility consciously feels comfortable--like a natural, right, or good thing to do--should be the harshest of alarms that we (those members of society who consciously and sincerely believe racial inequity and systemic racism is non-normative) should be moving in the opposite direction. Rather, emotional pain and hurt should be accepted as part of the process of growth. “[Systemic shift] requires ... the willingness to collaborate with anyone (friend or foe) to positively shift the system so it produces the results closer to what we want and can be sustained as a new normal on the journey to sustainability.”

Initially, this Article identifies the meaning of civility as used in PIF. Next, this Article examines civility in a variety of contexts, demonstrating that historically civility is nothing more than a uniquely powerful tool for oppression and dominance. Uniquely powerful because even though civility is an empirically vacuous term, nothing else makes oppression seem quite as divine, natural, altruistic, and morally inevitable. Ultimately, the Article suggests that advocating for civility in legal education weaponizes unconscious bias and system justification, rendering invisible the significant racial harm repeatedly perpetuated by civility and other similar poorly defined offshoots of morality.

[. . .]

Most Americans agree that overt racism and discrimination is wrong. Simultaneously, most Americans believe that civility is divinely normative and that it is a tangible and desirable end unto itself. The reality, though, is that civility is a tool of oppression for maintaining the status quo. In the legal profession, the status quo is a racist one. Civility is not the concept most people think it is. Rather, it is a construct imposed by the powerful to ensure they stay powerful. And like all doctrines subject to interpretation, civility is wielded as a sanctified weapon to prevent societal power shifts. Civility often hinders change.

The current structure of the legal profession is the result of centuries of systemic injustice and oppression. When we focus on civility in Professional Identity Formation, we are whitewashing and justifying that structure. The more legal education focuses on individual behavior and forms of communication as ways to improve the legal profession, the more we perpetuate this systemic injustice.

Rather than naively pretending that courtesy, formal clothes, and decency will solve anything, part of Professional Identity Formation should expose every law graduate to the magnitude of the systemic inequities of the legal profession. That way, everyone would graduate with an understanding of what true change looks like and a realistic understanding that their individual choices and motivations are largely irrelevant to systemic change.

Systemic change, unlike individual change and motivation, often requires discomfort and disruption. Blindly behaving civilly means reinforcing the behavioral norms of whoever is in power and reinforcing that power structure. We should be teaching students that any group in the minority has a right to feel upset and angry at the systemic historical injustice our legal education and profession represents. Instead, Professional Identity Formation currently stresses that if we behave, talk, write, and act like rich and comfortable members of the dominant group, everything will be just peachy--or dare I say-- civil.

James R. Ahrens Chair of Tort Law, Washburn University School of Law.