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A Time for Reckoning at Harvard Law School

By Jacob Loup

In a recent op-ed in the New York Times, Professor Randall Kennedy shared his concerns about student responses to the recent taping-over of the portraits of Harvard Law School’s black faculty. As he says, much of the unrest is not about the tape itself but about a conviction that the episode gives us a “revealing glimpse” into the “soul of Harvard Law School.” Professor Kennedy resists this conclusion. In his view, too many students are becoming “unglued,” seizing on “dubious” claims of racism at school, “nurturing an inflated sense of victimization,” and “minimizing” past victories.

Professor Kennedy’s op-ed reflects natural anxieties about change. Glue holds things together. Crisis pulls them apart. But glue can also cement centuries-old ideologies, making them hard to tear down even once they’ve been widely repudiated. Harvard Law School is glued together not by the supple bonds of a far-reaching fellowship, but by the hardened amber of a dominant class’s precedents and traditions.

We must come unglued. This is not to say that the school should be tossed into chaos. It is to say that we should finally and fully embrace the difficult task of understanding and reckoning with our history. We must acknowledge the magnitude of American racism—including the way it poisons our own community—and recognize the urgency of pulling it down.

Professor Kennedy accepts and knows well that “racism and its kindred pathologies” are “big foes.” And he grants that “some” students’ diagnoses “have a ring of validity.” Yet his instincts—informed by decades of wide reading and rich experience, no question—also tell him that those students may be “exaggerating” the forces of racism, thus making those forces seem “more formidable than they actually are.”

But what if these students, with their unique sets of experiences informed by their own reading of history, are more closely attuned than he realizes to some truly deep obstacles to change?

For instance, in Professor Kennedy’s view, “a decision by a professor to focus on a seemingly dry, technical issue rather than a more accessible, volatile subject involving race might well reflect a justifiable pedagogical strategy.” It might. But it also might reflect a yielding to inertia. And in this society, where the status quo secures the ill-got disproportionate power of white people, inertia is a formidable obstacle to change.

Issues of race are inextricably woven into the broad blanket of American law. The ideology of white supremacy and racial difference was at the epicenter of this society’s birth and upbringing. And it has settled deep in this country’s blood and bones, including in the gigantic, complex bundle of laws and court cases and customs that determine how we govern ourselves.

So when law schools presented with roomfuls of pliant young minds acquiesce in reducing major areas of law to “dry, technical issues,” they play a role in entrenching a system with racism in its marrow. For well-meaning people in certain positions, like those who teach tomorrow’s political leaders and wealth holders and judicial decision-makers, there arguably comes a point where dispassion amounts to endorsement. This is a formidable obstacle to change. (A related argument applies to students who, like me, too often fail to break silence in the classroom.)

There’s a similar counterpoint to Professor Kennedy’s argument that “opposition to racial affirmative action can stem from a wide range of sources other than prejudice.” That’s true, it can. But it often reflects a documented tendency of societies to legitimize the structures that have long secured dominant-group entitlements. Social psychologists call this tendency system justification theory. If this impulse to preserve the status quo drives much of the opposition to affirmative action, then it too is a formidable obstacle to change.

Harvard Law School vows in its mission statement “to educate leaders who contribute to the advancement of justice and the well-being of society.” To advance justice in our particular society, where the methodical administration of racial injustice has reigned for centuries, we must commit to uncovering the roots of the ideology of racial difference and breaking them out of the stubborn, hard-packed ground so many of us have comfortably trod for so long.

To many of those who have begun this project, Professor Kennedy imputes an “inflated sense of victimization.” In his view, “the right spirit” is simply to keep walking. But from where many students sit, the countless hours our peers have spent probing the depths of the racial divide at the law school and beyond are not the moanings of victims, but the toilings of those who take the schools’s mission statement most seriously. They are striving to reorder our law school and our society, and we should not let the hard old glue of yesterday’s prejudices slow them in their brave efforts to get us all unstuck.

Jacob Loup is a third-year student at Harvard Law School.

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