Author: Michelle Adams


Is “Gay” Over?

The most recent edition of The Advocate features an interesting article by Adam B. Vary entitled, “Is gay over?” The thesis of the article is that, “gay in all its meanings — personal, communal, cultural, political — seems to be going through its own identity crisis.” In the piece, one commentator suggests that “gay as an identity . . . may be pretty much at an end,” and that “people are thinking of their sexuality in a much more diffuse way.” The article notes that this is particularly true with respect to young people. Vary observes that, “along with feeling more free to come out in high school or sooner, many people in their teens and early 20’s are also free to reject gay as an identity. Instead, they’re defining their sexuality as queer or open or opting for no label at all.”

One response to the article might be to argue that it could only have been written by someone living on one of the two coasts — the magazine identifies Vary as a “Los Angeles-based writer” — where life as a gay person is often quite different than in many other areas of the United States. Thus, one argument is that the article reflects more than a little bit of geographic elitism. But my response to the piece is somewhat different.

In the article, Vary pinpoints April 1997 as the moment when gay as an identity started to evolve and become more fluid. It was during that month that Ellen DeGeneres came out on the cover of Time Magazine and famously proclaimed “Yep, I’m Gay.” According to Vary, that moment was a “major cultural touchstone,” ushering in an era of unprecedented LGBT visibility. But from my perspective, there is another more recent moment that was perhaps even more significant in forming a post-gay identity: the Supreme Court’s decision in Lawrence v. Texas. Simply put, it is really only possible to question the nature and basis of one’s sexuality once the most basic expression of the sexuality has been de-criminalized.


More from the AALS Conference on New Ideas for Law School Teachers: Teaching Intentionally

Yesterday morning the conference began with a 45 minute lecture by Prof. Derrick Bell entitled, Creating a Classroom Where Deep Learning Occurs: Participatory Learning. During the course of the talk, Prof. Bell outlined his innovative, student-centered approach to teaching. The “participatory learning” method involves a structure in which students take responsibility for teaching others. A description of this approach is published in the program materials. Under the “participatory learning” method:

Each two and one-half-hour class is structured so that selected student teams brief and argue an actual or hypothetical case to the class sitting as the court. Following the class, students prepare and post on the course web site essays (called op-eds) that offer student perspectives on the law and policy issues. These are available for review and possible response in the class. At the following class, discussion about the op-eds led by those who presented the case in the previous class enables a review of the legal and policy issues that students have wrestled with as they either wrote op-eds or read those prepared by their classmates. Over the course of the semester, each student posts from 10-12 op-eds of from 500-2,000 words. Rather than a final exam, each student receives a graded memo reflecting all aspects of the work done during the semester. Teaching assistants (students who did well in the previous semester) provide guidance to the teams both in preparing their arguments and helping them improve their op-eds . . . .

The method has many attractive features. It forces students to take responsibility for their own learning, converting them from passive receptors of information to active listeners and learners. Under the method, students have to write – a lot, which is always a good thing. Over the years, I’ve reduced rather than increased the number of written assignments in my upper level (non-seminar) courses. This method also involves students from previous classes in the learning process allowing them to both share their expertise with other students, and presumably, to solidify their own hold on legal concepts through their role as teaching assistants. It emphasizes teamwork and peer-to-peer interaction, skills that are increasingly necessary in the legal marketplace. Finally, the method attempts to subvert the power relationship between law professor and law student.

And yet even given all of these advantages, I don’t think that the participatory learning method will never make its way into my teaching repertoire. The reason I doubt I’ll ever use the participatory learning method is because I’m passionately committed to the quasi-Socratic method of teaching that I’ve assiduously worked to perfect for more than 10 years. I’m committed to this method notwithstanding prominent critiques suggesting that it can reify power relationships within the classroom, silence some students and humiliate others, and work against rather than promote learning outcomes for women and people of color.

It’s not that I disagree with these critiques . . . I just believe they can be overcome. I think that, in the right hands, the Socratic (or quasi) Socratic method is incredibly well suited to teaching law. In the right hands, the Socratic method promotes active learning, creates an environment where the sum is greater than its parts, allows for the efficient delivery of information and doctrine and can create an electric feeling in the classroom – that wow moment when through the careful parsing of doctrine that the questioning method allows – the lightblub of true understanding miraculously flicks on.

I can certainly see the benefits of participatory learning, but for me (call me old-fashioned), the quasi Socratic method really works. Am I wrong?


Live from the AALS Conference on New Ideas for Law School Teachers: Teaching Intentionally

Today is the first day of the AALS Midyear Conference on New Ideas for Law Teachers. Before commenting more substantively on the Conference itself, I want to ask this preliminary question: why are so few law professors from “elite” schools participating in the conference? There are approximately 150 professors registered for the Conference. By my count, only about 3 percent of those registered teach at law schools ranked within the “top 10” according to US News & World Report (I am aware of the controversy associated with US News rankings, but have referenced them here for the sake of convenience.) Similarly, only about another 10 percent of the participants teach at law schools ranked within the “top 25” according to the same US News ranking.

A causal observer might argue that the relative lack of participation by professors at “elite” law schools signals a lack of interest in teaching. Or an observer might say that professors at “elite” law schools already know how to teach well and therefore are unlikely to register for such a conference. But I think both of these arguments are far too facile. I believe that law professors at highly ranked law schools care deeply about teaching; and teachers at all levels can always benefit from sharing best practices. Instead, one arguent is that the difference in registration rates can be explained by the differing markets for law students. Arguably, schools in the “middle range” are incented to constantly improve and refine teaching methods because they compete against other schools in the same range directly on that basis. Upper tier schools, by contrast, are largely competing against each other in terms of branding and prestige of the institution.


Grutter Redo, Part 3

Recall that in a earlier post, I wrote about Judge Kozinski’s concurring opinion in the 9th Circuit ruling which upheld the Seattle school choice plan. His view was that rational basis review was preferable and strict scrutiny inappropriate because while the “program does use race as a criterion, [it does so] only to ensure that the population of each public school roughly reflects the city’s racial composition.” Kozinski’s position raises a number of interesting questions — at least one of which I alluded to before — the potential appeal of his approach to Justice Kennedy. But now I want to focus on the normative question which lies at the heart of Kozinski’s approach.

Let us set aside for a moment the Court’s view, which it has repeatedly reaffirmed in cases like Adarand, Grutter and Johnson v. California, that strict scrutiny review must apply to all racial classifications. The question I want to pose is this: is there a meaningful distinction between the racial preference that was at issue in Grutter, and the racial classification scheme that is challenged in the K-12 cases the Court has recently accepted. To assist you in answering this question, I’ll provide a quick review of the use of race in the two situations.

Grutter concerned the University of Michigan Law School’s admissions policy which sought to enroll a “critical mass of underrepresented minority students.” In short, while the policy did not set aside a fixed number of seats in the incoming class for minority group members, it did consider race or ethnicity “flexibly as a ‘plus’ factor in the context of individualized consideration of each and every applicant.” Even though race was used flexibly (no bonus points or set asides as was the case in Bakke), there is little doubt that with respect to some candidates, race was outcome determinative. That is, race was outcome determinative for some white candidates in the sense that minority group members with identical qualifications would have been admitted to the Law School while they were not. (We can address the standing difficulties raised under this scenario at a different time.)

Contrast the Law School’s admissions plan in Grutter with the Seattle school choice plan. Under the Seattle plan, race was used as a tiebreaker. In the first instance, students are given their choice of schools. It is only when a school becomes oversubscribed and racially imbalanced that the racial tiebreaker comes into play, and even then it only operates on the margins; effecting only schools where the “student body differs by more than 15 percent from the racial make up of the students of the Seattle public schools as a whole.” Finally, we should note that under the Seattle plan, no student is denied an opportunity to attend a public school in the school district; all students are placed in some public school within the district. Thus, Judge Kozinski’s view of the Seattle plan was, “that a student is denied a school of his choice may be disappointing, but it carries no racial stigma and says nothing at all about that individual’s aptitude or ability.”

Do you agree? Are the Grutter and Seattle plans distinguishable? Is it really true that one plan attaches “stigma” to a frustrated applicant while the other inflicts no such stigmatic harm to the students? Isn’t one argument that the stigmatic impact of each plan is a matter of degree. If that’s the case, then perhaps Kozinski is right after all that a heightened form of rational basis review is superior because it would allow the Court to take all of the relevant facts into consideration. Unless you think strict scrutiny, in the race context at least, already performs this function.


Grutter redo, part 2

The Court’s acceptance of the two K-12 cases raises so many interesting questions that it is difficult to know where to start. For this post, I’ll quickly recap the facts and ask a question about Justice Kennedy’s potentially pivotal role in deciding the cases. Later posts will address other issues raised by the cases.

Both cases deal with “voluntary” desegregation plans where there is no court order otherwise requiring desegregation. In both cases, the school districts sought to break the link between residential and school segregation. Given the racially segregated nature of the neighborhoods within the school districts, an uncontrolled school choice plan would have likely replicated such segregation within the schools. Instead, the districts sought to both preserve neighborhood school choice and produce more integrated public schools. As a general matter, one school district used race as a tiebreaker. In this district, students were given their choice of schools, race notwithstanding; race came into play as a tiebreaker for oversubscribed schools that were racially imbalanced. In the other district, the school board established black student enrollment ranges. Administrators then used race as one factor among many (residence, school capacity, popularity, student’s choice, etc.) to achieve enrollment within those ranges.

Both the 6th and 9th Circuits upheld these plans, applying the Grutter “student body diversity” rationale to the K-12 context. In this post, I want to focus on just one question: Justice Kennedy’s role. While it is true that two new justices have joined the Court since Grutter, I think it highly likely that both Roberts and Alito will vote to strike these plans down (we can debate exactly how they will do this at a later date). I believe Kennedy’s vote will be pivotal. While it is true that Kennedy dissented in Grutter, essentially arguing that the Law School’s affirmative action plan was not narrowly tailored under the strict scrutiny test, I believe there may be a way to reach him here. But how? Enter Judge Kozinski.

In the 9th Circuit opinion, Judge Kozinski wrote an interesting concurrence. In it, he argued that a heightened form of “rational basis” review ought to apply to the case. His theory was that the Seattle plan wasn’t really an “affirmative action” plan given that it concerned admission to K-12 education. According to Kozinski, it had none of the “defects” associated with other racial preference schemes because “there is no competition between the races, and no race is given a preference over another. That a student is denied the school of his choice may be disappointing, but it carries no racial stigma and says nothing at all about the individual’s aptitude or ability.” Thus, from Kozinski’s perspective, strict scrutiny need not apply — and instead a less deferential form of rational basis review would do. Given Kennedy’s position in Romer and Lawrence, will Kennedy be persuaded by Kozinski’s argument? If so, it would allow him to uphold the plans and to distinguish his position in Grutter, where arguably, strict scrutiny had to apply.