Abstract

Excerpted From: Lorenzo Bowman, Tonette Rocco and Elizabeth Peterson, The Exclusion of Race from Mandated Continuing Legal Education Requirements: A Critical Race Theory Analysis, 8 Seattle Journal for Social Justice 229 (Fall/Winter 2009) (82 Footnotes) (Full Document).

Forty states mandate continuing legal education (CLE) for practicing lawyers in their jurisdictions. Lawyers who fail to meet the mandated CLE requirements of their jurisdictions are often subject to suspension and, ultimately, disbarment. Given the penalty for noncompliance, almost all practicing lawyers in these jurisdictions take CLE requirements seriously. The complex nature of our society dictates that professionals continue to learn in order to remain abreast of the ever-changing knowledge in their field of expertise. Professionals make up more than 25 percent of the U.S. workforce and are the primary decision makers for the major institutions and establishments of American society. The special recognition given to professionals is a result of the leadership derived from their technical knowledge and skills. Because the public relies on professionals for crucial services, lawyers as professionals have a significant amount of control over our society.

As this paper will illustrate, a great amount of racial disparity exists in how the law treats individuals. CLE has great potential to educate legal practitioners of this disparity and the wide array of ways it is manifested in their profession. However, among the forty states mandating CLE, only five require coursework addressing bias and discrimination in the profession. Even then, these five states define “bias” in a way that consistently fails to adequately address racial bias. Using Critical Race Theory (CRT) as an analytical lens to critique CLE offerings, we suggest that the failure to realize the aforementioned potential is due to an overall tacit acceptance of racism in the criminal justice system, as well as an interest convergence within state bar associations to maintain the status quo.

First, this article will outline the racial disparities existing in the legal profession and the criminal justice system. Next, it will present an overview of CRT and its principles before outlining the five sets of state CLE requirements regarding bias and discrimination. This is followed by a CRT critique of the CLE offerings. We conclude with suggestions for improving CLE offerings on bias. These suggestions are (1) a needs assessment for each state bar and a corresponding survey of the perceptions of race within its legal community, (2) the requirement of racial bias as a separate topic of CLE, (3) the development of programs to address a bar's specific issues concerning race, and (4) some measurement of success to gauge a program's effectiveness.

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Continuing Professional Education (CPE) has become a key strategy in securing and maintaining the quality of professional services. CPE may be defined as “the process of engaging in education pursuits with the goal of becoming up-to-date in the knowledge and skills of one's profession.” Both the theory and practice of CPE have been fragmented with programs being mandated seemingly at a whim, rather than being implemented as a result of necessity. Effectiveness is often used as the justification for a program but without stating the criteria for evaluating effectiveness. Often, CPE that is based on a needs assessment and is contextually relevant can produce outcomes such as improved knowledge, skills, and behavior. In the area of CLE, we can find no examples of stated criteria for evaluating effectiveness--assessing learning in context does not seem to be a concern for CLE providers.

In order to begin to address the issue of racial bias in the practice of law and in the criminal justice system, each bar association must start with a needs assessment. The nature of the bias issue will differ somewhat from jurisdiction to jurisdiction based on demography. With this in mind, CLE programs can be uniquely tailored to address regional and state needs. For example, in Maricopa County, Arizona, Native Americans make up a significant percentage of the minority population. Indeed, their presence so taxed the court system that the superior court established a two-track system. A separate court was established to hear Native American DUI and drug cases--a racially insensitive move on the part of the court. Separate courts for different races is an application of the failed “separate but equal” doctrine. Separate courts for Native Americans sends a message of inferiority. The legal profession needs to understand racial differences as well as appropriate interactive responses that are based on notions of fairness and equality.

Second, CLE requirements must clearly mandate race as a separate topic category with no fewer than three CLE hours required per reporting period. The CLE requirement should include racial sensitivity training for all bar members, including members of the judiciary. This requirement is important because most biased behavior is unconscious. To be fully effective, this requirement must then apply to all practitioners; however, due to their level of discretion in administering the law, judges and prosecutors must be especially included. The practitioners must understand their role in perpetuating the racial injustices that currently exist in the profession and the criminal justice system. Each state bar should survey its practicing attorneys to assess the current perception of race within the profession. Differences in perception among attorneys of color and White attorneys should be expected. Nevertheless, the support of attorneys will be important to anti-bias CLE, and this information provides an initial indicator of support.

Last, there must be accountability and a measurement of success. It is recommended that each state bar establish a commission of racial equality and include among its charges the requirement to track and quantify the impact of the mandated CLE anti-bias training on the legal profession and the criminal justice system in the state.

Liberalism has raised the dilemma between its stated goal of racial equality and its reluctance to confront White privilege. “Adopting and adapting CRT as a framework for educational equity means that [CLE decision makers] will have to expose racism in [CLE] education and propose radical solutions for addressing it.” K.W. Crenshaw, a professor at UCLA School of Law specializing in race and gender issues, suggests “the development of a distinct political strategy informed by the actual conditions of Black people.” She contends that liberal ideology has visionary ideals that should be developed, because more often than not, triumph comes not from insurgency but from resistance and perseverance. To do so, race, racism, and the historic and social context in which they operate, should always be at the center of the debate. Continuing legal education may lay the foundations for the achievement of educational equity by questioning its own assumptions and privileges, by critically examining the racial context in which it functions, and by resisting stereotyping and profiling within its realm.

In summary, critical race theorists would argue that the various state bar associations have not aggressively addressed the reality of race in the legal profession through CLE, because the current state of the criminal justice system serves the needs of the dominant culture and of those who hold power in the bar associations. Therefore, each state bar needs to take several steps to effectuate the change that has been eluded under liberalism. First, it must conduct a needs assessment for its state and survey the perceptions of race within its legal industry. Then, it must mandate racial bias as a separate topic category in CLE requirements and develop programs to address each state bar's specific issues concerning race.

Last, it must devise some measurement of success in order to gauge effectiveness once CLE training has been completed. To accomplish this, CLE program planners must abandon the current focus on functionalism and embrace a critical focus. The functionalist perspective in educational program planning emphasizes the development of technical skills and knowledge. A critical perspective will force program planners to recognize that the legal profession cannot be understood independent of its relationship to the larger society. Attorneys are required to attend CLE in order to maintain professional knowledge and competency; this has historically been the emphasis for CLE requirements in most bar associations across the country. The emphasis is on the development and enhancement of technical knowledge. However, mastery in CLE cannot be assessed on the basis of technical expertise alone--we must know the ends to which the expertise is being put. Therefore, CLE program planners must embrace the critical perspective in program planning. The critical viewpoint recognizes the need to deal with both the means and the ends of the educational process. Most White attorneys work to maintain the status quo. However, in order to address race and racism in the legal system, attorneys must understand the ends of their work and the best means to reach those ends.

Lorenzo Bowman is a member of the adult education faculty at the Univ. of Georgia. ,

Tonette S. Rocco is an Associate Professor and Program Leader of Adult and Human Resource Development at Florida International Univ. ,

Elizabeth A. Peterson was Associate Professor of Adult Education at National-Louis Univ.