Here’s another excerpt from Kristymarie Shipley’s article in which she explores the complexities of navigating through the challenges of law school as a woman of color. In particular, she looks at “[t]he flipside of fear and anxiety of class participation [as] a sense of duty. This duty to participate encompasses a sense of responsibility to your own otherness that does not just stop with class participation but also bleeds into law school involvement, which may affect classroom performance.” As I read this part of her article and its focus on duty, I was reminded of the raging debate in the 1990s over whether persons of color should be role models with certain duties. I also thought about “the box.” What? Just wait. Concentrate on Kristymarie.

A.    Class Participation as a Duty

“Underrepresented students often feel a duty to achieve, not just for themselves, but also for those that come after. Barbara Smith, an activist at the intersection of race, sex, and sexual orientation, wrote that she was enraged when she realized that “black women writers, academics, and politicos who protect their closets never think about people like [oppressed students] or about how their silences contribute to the silencing of others.” This piece also inspired Angela D. Gilmore to share the anxiety she experienced in law school and in the legal profession as a lesbian black female constantly wavering between performing her identity loudly and remaining silent. Once again, these scholars reinforce the idea that participating and speaking up is a duty owed to others in one’s community, aimed at making sure they do not feel like that they must remain silent as well.

This concept of duty extends beyond that owed to one’s underrepresented community and those that will follow in one’s steps. It includes feeling responsible for enriching the majority’s educational experience. As Onwuachi-Willig explains, silence could deprive the conversation of a valuable fresh perspective.

Admitting token numbers of racially and gender diverse students belies law schools’ claims to prepare students for the work environment and also leads diverse candidates to feel isolated. “Critical mass,” or meaningful representation, is achieved when there is sufficient representation of underrepresented minority students to encourage their class participation and counteract isolation. The concept is that if underrepresented candidates are admitted in sufficient numbers, the educational experience of all candidates is enriched through exposure to diverse perspectives and cross-racial and cross-gendered interactions. Critical mass creates an environment that “promotes learning outcomes, and better prepares students for an increasingly diverse workforce and society, and better prepares them as professionals.” These interactions prepare all candidates to work in a global market and become good citizens. However, lack of critical mass often turns the duty of class participation into a spokesperson’s burden.

B.    When the Duty Becomes a Burden

We were sitting in class. Out of just under twenty students, only two of us would be considered minorities: a Korean man and a Puerto Rican woman. We discussed the calculation of remedies for wrongful death. I seldom speak in class. My feedback in the past had been somewhat quickly dismissed. On this day, the professor explained that, when calculating lost wages, if the victim is black, the defendant should be able to present evidence that, on average, black men do not live as long as white men. What I hear is: the black victim would not have lived that long anyway so his family should receive less in damages. I raise my hand. How is that fair?

To provide some context, this discussion occurred in the wake of the shooting of Michael Brown. I argued that providing information on differences in life expectancy based on racial markers to a jury is more prejudicial than probative. It ignores the systems of oppression that result in such differences. A defendant should not benefit from those systems. For example, imagine that Police Officer Darren Wilson’s conduct had been determined to be willful and unreasonable (out goes immunity), and Michael Brown’s family sued for wrongful death (in this hypothetical he is gainfully employed and has dependents). Officer Wilson, as a defendant, should not be able to escape financial responsibility with an argument that black men die at a younger age, especially when actions like his are one of the reasons why black men die at a younger age. The professor characterized life expectancy differences as factual, and moved on to comparisons of obese black men to fit white men who live longer and why these numbers were important. I wondered, “How can they be important when you are comparing apples and oranges?” The class moved on but I was left reeling. The focus should have been on health or weight if that was the issue, not on race.

At that moment, I felt like class participation became more of a risk than a reward. The professor quickly dismissed my comment and I felt I had come off as too personally invested (since my husband is black) to have a conversation about the legal merits of a certain piece of evidence. Because I continued to bring the issue back to the racial component and whether the data was necessary, I felt I was coming off as combative. As I tuned out the rest of the discussion, I felt I may have come off as immature. Because my point was not coming across, or getting across, I went back to not speaking in class—to silence. Because I am personally invested, I thought of the perfect point: “Professor, you just said my husband’s life is worth less.” Because I am combative, I thought: “Professor, you have disregarded my point of view, diminished my racial and social concerns, and continually tried to reduce this issue to dollars and cents when wrongful death is about the life lost.” Even more I felt like saying: “Professor, when you ended the conversation by saying ‘everything has a dollar value, even human life,’ you were flippant about your student. While it might have been easy to discuss this man’s life in terms of dollars and cents because he is an abstract black man to whom you do not relate, that black man is someone to somebody.”

I stayed quiet because I felt naïve. I felt like the representative for all things minority. I felt like it was my responsibility to rescue the learning experience and I failed. I felt like I became the hypothetical.

A racialized and gendered candidate often becomes a spokesperson, or a hypothetical, rather than an individual. By challenging the authority figure in the room, I felt I had surely tainted the Professor’s perspective of who I was—a perspective that could leave the classroom and venture into the legal community. What might have been a regular class discussion to every other student was to me, a highly visible invisible minority, a failure to carry my burden as a minority student. I had failed to represent minorities by not having the legal wherewithal to convince the Professor that the data was prejudicial and not apt for a jury. I was left with a burden I did not feel I should have had to shoulder on my own. By simply not participating, I refused to take that burden on. In the process, I became isolated.”

Pretty compelling stuff, right? Kristymarie packs a lot of thoughtful points and observations into those few paragraphs. And lest you think she’s just baring it all like a pathetic Facebook posting looking for a thousand likes and a hundred comments, she’s effectively using the storytelling technique, used often in Critical Race Theory (CRT), to explore the multiple dimensions of a problem or situation, here a woman of color in law school, and in a classroom, who also identifies as a Puerto Rican and is married to an African American.

Now I said her excerpt reminded me of the role model debate back in the day and “the box,” Let’s have a look.

About two years after I made tenure in 1994, a debate arose in academia regarding the question whether persons of color should willingly be “role models” for their communities. Richard Delgado, a leading voice in CRT, said “hell no!” Well, he didn’t actually say that… But he could have!

In any event, the debate meant a lot to me—and to most persons of color—because of the various roles I played as a Latino. When I graduated from Georgetown University Law Center I was recognized for my work with the Latino law student group there. At Arnold & Porter, a large D.C. law firm I joined after law school, I established a mentor program sponsored by the firm that matched Latino/a law students in the area’s law schools with local Latino/a lawyers. When I joined the faculty at the University of Iowa College of Law in 1990, I did so not only as a budding scholar in international finance but also as a person of color with a record of engagement in the Latino legal community.

I never thought of myself as a role model. I was kinda busy with a bunch of little things. Like getting through law school just after becoming a quadriplegic, surviving in a Big Law firm where sleep is a luxury, trying to write pre-tenure pieces that would change the world as we know it. That sort of thing. But had I thought about it, I would’ve said being a role model was pretty cool. If what I was doing could inspire just one student of color—who may happen to be in a wheelchair—to follow in my footsteps, right on. I’ll take that.

But Delgado wasn’t down with it. He gave a number of reasons for rejecting the idea, such as uplifting “your entire people” is “tough,” “sweaty work.” Sweaty? First, the idea of a sweaty prof is gross. Second, I don’t see a prof working up a sweat while he’s typing away in his office, unless he’s writing an article that’ll decide whether he’ll get tenure and thereafter be able to do nothing more than stare at his navel.

Is it tough to be a role model? Hell, yes! And I really said that.

Delgado gave other reasons: As a role model you’re treated as a means to an end, even by your own people, e.g., you’re expected to give rousing speeches and serve on panels.  On top of that, you’re expected to do everything that your white counterparts do. Lots of stress and exhaustion. But the most biting criticism was essentially that role models are “flunkies for the man.” Well, he didn’t actually that… But it has a nice ring to it!

Really, though, he said whites use the role model concept to justify and prop up “majoritarian social mores,” and perpetuate the lie of equal-opportunity, a lie if you look at the actual number of people of color that have made it in the white world.

You can see these themes in Kristymarie’s excerpt. Was she recruited to the College of Law to be a role model, or at least to be groomed as one? Hmmm… She felt like she was “the representative for all things minority.” She felt like she had the “responsibility to rescue the learning experience.” She became “a spokesperson, or a hypothetical, rather than an individual.”  The duties became a burden. Is that tough stuff? Hell, yes! I know Kristymarie. I’m sure she did say that. And a few other choice words. You’re such a potty mouth, Kristymarie. Shame, shame, shame!

Seriously, though, my recall of the debate about role models led me to think about “the box.” Can you guess what that is? If you’re a student of color, you’re all too familiar with it: the box on the law school application where you can choose to check off an identity, such as “Hispanic” or “African American.” But the box is much more than a space you can check. The subtext of the box is far more important. What “lies beneath” the box is the violently complex world of affirmative action. What lies beneath are questions of legitimacy that surround being a role model, especially if you don’t abide by the duties of the title.

And here’s the thing: It really doesn’t matter if you actually checked it. Because of its existence, if you’re a student of color you’ll always be asked, in words or even in a look, “Did you check the box?”

Here are points when the question typically comes up. First, if you did check that box, I can assure you that faculty members sitting on a admissions committee will look at your whole application to see if you’ve done something for your Latino/a community or you otherwise show your “Latino/a-ness.” If you did check the box, and there’s nothing in your file about the duties you should’ve fulfilled, then why did you check the box? Are you a legit Latino/a? Hmmm…

And then you get to law school. The Latino/a student group tries to find all of the Latino/a students. They track you down. They want you to participate in the group’s activities, from periodic meetings, to bake sales, to volunteering in nearby Latino/a communities. You don’t want to be in the group, either because, say, they take political positions you’re not comfortable with or, more likely, you’re freaked out by, and are having episodes of projectile vomiting because of, the crushing amount of school work. Some of the students in the group look at you, eyebrows raised. Did you check that box? Why aren’t you fulfilling your duties? Are you a legit Latino/a? Hmmm…

Then you find yourself in class. You’ve always been quiet in class. And consistently gotten the highest grades in your courses prior to law school. There’s no box on the application that says “loudmouth” or “future gunner,” a term coined by students referring to students who can’t wait to be called on and dominate class discussion, usually with incredibly useless things to say.

Every time the class covers a case involving minorities you’re expected to say something. You don’t. Some white students look at you. “C’mon, say something!” they say to themselves. “She must’ve checked the box to be here.” You’re not fulfilling your duties. Are you a legit Latino/a? Hmmm…

It might not even get that far. Are you a legit student at this law school? Should you be at a lower-ranked school? These questions become more intense as grades are posted. It gets around that students of color on average got lower grades than their white counterparts. A student of color finds a post-it in her carrel: “You don’t belong here.” Or an African American finds a banana in his school folder. (This actually happened at American University recently.) Never mind that there are credible reasons for the disparity that have nothing to do with intellect and academic prowess. Have a look at one of my posts regarding document review.

Back to the classroom, the prof looks at you and wonders why, as Kristymarie observes, you’re not fulfilling your duty of bringing diversity to the learning environment, a goal the Supreme Court says schools can take into account, but very carefully, when considering race in admissions.  Are you a legit Latino/a? Hmmm…

Or maybe you decide to be vocal, but not the gunner type. Do you become racialized and/or gendered, as Kristymarie suggests? Do other students of color look at you as a suck-up, a Tio Taco, the equivalent of an Uncle Tom? Is your sense of duty messed up? Are you a legit Latino/a? Hmmm…

Then you meet with a prof in her office to discuss careers. You tell her that you’re from a small town in Texas. She tells you how admirable and important it is to work for a non-profit back “in your community,” helping disadvantaged Latinos/as. You tell her you’re interested in corporate law and want to practice in New York. She looks at you with a mixture of confusion and disappointment. “When I was on the admissions committee two years ago and had to review an insane number of applications while trying to watch Game of Thrones and eat my kale salad with walnuts, mandarin oranges and a touch of honey mustard dressing, I only voted in favor of students of color who checked the box and had strong ties to the community,” she says to herself in a really long sentence that triggers a migraine. Where’s the duty to your community? Are you a legit Latino/a? Hmmm…

I’m going to stop here. It’s your duty to think about this stuff. It’s my duty to pause Game of Thrones now and work out at my gym. Get sweaty. Yeah, TMI. Deal with it!

If you want to chime in on this stuff, there’s a comment box for your use. We’ll continue this conversation in my next post about Kristymarie’s article.