“Raise Your Hand: A Burden and a Duty”

This excerpt from Kristymarie’s article addresses the complexities of race and gender in the academic world, especially the classroom. Before we get to it, I want to share with you the complexities from my  end, the prof facing his students in class.

It’s really tricky raising issues of race and gender (and class), especially when the course appears to be completely unrelated to those topics, such as Contracts, which I taught for twenty-four years. There are, in fact, many cases that deal with important concepts of contract law within compelling narratives of race and gender (and class).

For example, there’s a famous 1965 case, Williams v. Walker-Thomas Furniture Co., that teaches students the concept of “unconscionability.” Now before I talk about this case, let me preemptively tell law students (and profs) who might be reading this to take a chill pill. I’m writing this for lay readers. We’re not in class, and I’m not giving a faculty talk. Okay? So back off!!! Thanks so much! Smiley face: 🙂It fixes everything.

The idea behind unconscionability (I’ve always struggled to spell that) is that a court can decide a contract, or a provision of it, should be nullified because it’s outrageous. Here are some of the facts, the “text” of the case’s narrative: The year: 1962. The place: Washington, D.C. Ora Williams bought some furniture from Walker-Thomas. She signed an installment contract with an obscure and incomprehensible provision that in effect allowed the seller to repossess all of the furniture she bought from the seller over the years if she defaulted on a payment for the furniture at issue in the case.  Ora did default and sure enough the furniture company went after all of Ora’s furniture from the store.

The trial court sided with Walker-Thomas. Ora then appealed to the higher court. That court condemned what Walker-Thomas did but said it couldn’t find any law that would allow it to nullify the contract. Ora then appealed to the highest court in D.C. and it landed on the lap of Judge Skelly Wright, a judge well known for fighting on behalf of the poor and marginalized. He concluded that the D.C. courts did have the power to nullify contracts based on unconscionability. He told the trial court to look for facts that related to the concept so that a decision could be made either way on that basis.

There’s the text—that most students easily focus on. And wish that was it. But I didn’t stop there. I was going to lead them into the case’s “subtext.”

And the class discussion would become both extremely fascinating and extremely uncomfortable for the students.

Please, no!

Too late to drop the class now. It’s mandatory anyway. So don’t even think about bolting for the door.

Does the opinion describe Ms. Williams? The students appear to scour the casebook but they’re actually praying I won’t call on them or they’re silently cursing me out. Most likely both. Regardless, they don’t look up, fearing they’ll make eye contact with me, which might lead to being called on.

Little by little, I draw out more facts in the opinion that they glossed over and push them inexorably into the subtext:

• She received a “monthly stipend from the government.” She was on welfare.
• She had to support “both herself and seven children.” She was a single mother. With seven children. Seven.
• What did she buy? A stereo set from Walker-Thomas Furniture Co. for $514 (which is just over $4000 today). What again was the furniture in question? A stereo set. How much? $514.
• Did the second court say anything about the relationship between the buyer and the seller? The judge said the seller knew Ms. Williams was a single mother with seven children and on welfare. And yet it sold her a STEREO SET! A $514 stereo set! The judge said, “We cannot condemn too strongly [the seller’s] conduct.”
• What does the opinion say about the racial identity of Ms. Williams? They scour and scour desperately but can’t find the passage about her race.
• Because it’s not there. Why not?
• Does the opinion say anything the racial make-up of D.C. at that time? They scour. No. It was predominantly black.
• Does the opinion say anything about the neighborhood surrounding Walker-Thomas? They scour. No. It was poor and black.
• Was Skelly Wright white? Probably. Yes.

From there I facilitated what was always a difficult discussion, focusing on whether we should take into account the complex subtext. Does justice require this? Or does doing so turn Ms. Williams into an incompetent, irresponsible black welfare queen? Do you think Skelly Wright took into account Ms. Williams’ race? If he did, was he a hero for it? Or was he essentially a benign white administrator of a black colony—District (not state) of Columbia? “If I don’t strongly suggest through my ruling that this type of contract is unconscionable, we might have a black revolt on our hands!”

Say what?

Pretty head-spinning, right? So stressful for the students that they feared going into spasms.

You ain’t seen the half of it. What if you’re a student of color—and female (and/or gay, lesbian, trans, bi or queer)?

Here’s Kristymarie:

“My experiences as a racialized and gendered candidate are not unique. However, my intersecting identities further exacerbate the performance anxiety inherent in a competitive educational environment such a law school. My experience is that racially aware (or charged) commentary during class discussions or during faculty interactions may influence future references or the faculty’s impressions of the candidate. It may also expose the racialized—or racialized and gendered—candidate’s view to scrutiny, from the faculty and fellow students, which is often heightened by the speaker’s otherness.

The racialized and/or gendered other may see class participation as either a burden or a duty. The distinction is subtle: a duty is something one proudly undertakes because one feels a sense of responsibility towards the task. A burden is something one has to do, regardless of how one may feel about the task.

Class Participation as a Burden

In 2014, the UCLA Law School had 1100 students. Of those students, thirty-three, or three percent, were black. Some of these students came together and created a video commentary with the purpose of increasing awareness about UCLA Law’s lack of diversity and the burden of feeling like representatives for their community. The video went viral. Disconcertingly, the students’ feelings are timeless.

Supreme Court Justice and former women’s rights activist Ruth Bader Ginsburg explained that, as one of nine women in the 1956 Harvard Law School first year class of 500, “you felt in class as if all eyes were on you and that if you didn’t perform well you would be failing, not only for yourself, but for all women.” The burden is compounded when the candidate is not only gendered, but also racialized.

Peggy McIntosh, feminist and anti-racism activist, reflected that as a white woman, she “can speak in public to a powerful male group without putting [her] race on trial.” In contrast, Adrien K. Wing, professor and international human rights scholar, reflected on her first year of law school in 1979 and explained that she dreaded participating in class because, “[i]f [she] were found wanting, it might be that the white males would think all people of [her] race or gender were lacking.” However, a white male classmate would not feel the same burden because “[i]f one of them failed to handle the grilling, it would just be regarded as his personal failure.” Fifty-six years after Justice Ginsburg and thirty-three years after Professor Wing did, I experienced the same apprehensions.

Stereotype threat is one of the main factors that turn class participation into a burden. Stereotype threat is the situational predicament in which a racialized candidate fears that their actions will confirm negative stereotypes about their social group. Class participation, to a racialized and gendered candidate, poses the threat of “contempt, censure, judgment, recognition, challenge, annihilation, visibility.”

Lack of participation, however, may be equally harmful. While women of color may use silence strategically, it may negatively affect the educational process. Angela Onwuachi-Willig explains the effects of silence from the academic perspective. The majority members may erroneously interpret silence as a confirmation of the stereotype that women of color do not have anything to contribute to the discussion. Thus racialized and/or gendered law students and law faculty similarly feel a pressure, or a duty, to participate.”