By Professor Mary A. Lynch, Kate Stoneman Chair in Law and Democracy
This past week has been a difficult one for law teachers and law students alike. The National Law Journal reported efforts made by law schools to support shocked students amidst “an emotionally charged and grim atmosphere” while taking “pains to ensure their election–related events are nonpartisan and respectful of all political positions.” The Journal noted that the legal academy has a “well-established liberal bent” and quoted a California law professor who opined that perhaps some students were shocked because “the media and the polls did not prepare them for the actual result.” I can attest that what my colleagues and experienced this week was not the whining of a “liberal elite,” nor the unexpected disappointment of those certain their candidate who upheld their beliefs was sure to win. What we experienced was having to teach and mentor the traumatized.
First, let me give you some background. I teach at a small, private, law school in upstate New York where one is just as likely to teach a former farmer who has never stepped foot in New York City as a New York City native who thinks Albany, New York is cow country. Often, you are teaching both together in the same class. Located in a capital city, we are very used to having students actively involved in opposing campaign teams sitting side by side in class and sharing notes. As New York lawyers, we do not take offense at direct, unembellished, sometimes abrasive language. A large number of our students wear business attire to class because many of them are working while attending law school; another group are primarily caring for children while enrolled in classes. There are very few trust-fund babies. Our students have an old-fashioned work ethic and are generally more civil, polite and deferential to elders than one might expect in 2016. We emphasize open office doors and immersive faculty-student contact in good times and in bad. Historically, we have been known to have a law and order bent and most years produce more prosecutors than the national average. Our students are also more diverse and female than when I started teaching in 1989.
As a professor who currently teaches students to prosecute domestic violence abusers and sexual assaulters and who has had countless listening sessions with victims and survivors of sexual assault and intimate partner abuse, I found that I was asked to call upon that knowledge to support, counsel, and simply listen to students. Trauma- informed lawyering calls for connecting “a person’s behavior to their trauma response rather than isolating their actions to the current circumstances and assuming a character flaw.” Sarah Katz, Deeya Haldar, The Pedagogy of Trauma-Informed Lawyering, 22 Clinical L. Rev. 359 n5 (2016) citing Sandra L. Bloom, Why Should Philadelphia Become a Trauma-Informed City, Briefing Paper Prepared for the Philadelphia Mayoral Forum, sponsored by the Scattergood Foundation (2015),
First, I acknowledged that most of the fears expressed were not unreasonable or “crazy”. And man o man, are their fears reasonable.
- It was reasonable for female students to fear that their birth control coverage could or would be eliminated and that their personal control over their own bodies could be eliminated again during their careers. (Note that while I was typing this blog post line the following New York Times article popped up on my computer trying to analyze whether the new President and his team will do just that. http://www.nytimes.com/2016/11/12/us/politics/trump-birth-control-climate.html?_r=0)
- It was reasonable to fear for immigrant family members who might need to make a safety plan and keep documentation very secure because of the rhetoric around immigration. (Our Immigration Clinic Professor Sarah Rogerson has had to quickly pivot to address the uncertainties her students face in trying to properly advise clients with immigration issues in the face of what has been threatened during the campaign)
- It was reasonable for students to fear that younger family members would be more at risk because of the President-elect’s inflammatory language targeted at communities of color, Mexicans, and Muslims or that they would be more at risk because of their transgender identity. https://twitter.com/i/moments/796417517157830656
- It was reasonable for my prosecution students to fear that working at the Department of Justice in the new era included might mean threatening and jailing political opponents. See Legal Intelligencer (A presidential candidate, in a script written and performed by despots everywhere, threatens to lock up his political opponent if he prevails. Of all the feared abuses of government power, isn’t this the most frightening of all-the power to falsely accuse and wrongly imprison?)
Second, I deferred to the expertise of my students on non-gender issues. And man oh man, are they experts. In anti-domestic violence work, we often say “She is the expert on the abuser.” That analogy was apt here. Our students who have faced hateful racial or sexual orientation/identity slurs, illegal stop and frisks, and unwarranted suspicion because of their Muslim religion understand in a visceral and concrete way the signals and the risks for safety that I can only imagine and predict intellectually. And just like survivors of abuse, they were right about predicting the coming violence. The Southern Poverty Law Center has counted at least 200 incidents since the election and the list keeps growing. https://www.splcenter.org/hatewatch/2016/11/11/we-counted-over-200-incidents-hateful-harassment-and-intimidation-election-day. These incidents include a Victory parade by the KKK and children being exposed to racial epithets in public school.
Third, it was appropriate for my students to be stunned by the Jekyll and Hyde quality of America. Survivors of abuse talk about being stunned when the first time the abuser raises a hand or when the violence dramatically escalates is during pregnancy. It seems counter-intuitive. Similarly, my students married themselves to the American dream of fairness. They worked hard, they thought their race or gender or ethnicity or religion would not bar them from reaching their dreams. Students interpreted the voting statistics understandably as a hateful, fearful rejection of them and their dreams. A wide swath of the American populace – the folks that as lawyers they want to represent and serve – failed to stand up at the polls and say NO to hate and bias.
Fourth, although on paper our Constitution and civil rights protection are terrific, in practice they are only as good as the human beings who are elected to uphold them. Just as it is counterproductive and dangerous to advise survivors of violence that the legal system will be fair, protect the innocent and hold the abusive accountable, so too it would be fool hardy and dangerous for me to try to comfort my students by minimizing their concerns and assuring them everything will be fine.
Fifth, my colleagues and I had to find ways to empower students, just as a client-centered lawyering or victim-centered prosecution would. Some of us spent much time doing this through faculty office conversations, checking in with students in clinic workspaces or in hallways or the cafeteria. I sent e-mails quoting Tolkien, Harry Potter, Langston Hughes, and Leslie Knope and video clips of Maya Angelou’s “Still I Rise” and welcomed suggestions back regarding James Baldwin and Van Jones. On threads on our faculty e-mails, we shared advice and ideas and reactions. Two of my colleagues decided to take the trauma and fold it into an empowering teaching activity about lawyering. Professor Christian Sundquist reacted to the upset and depressed-looking faces in front of him on Wednesday in his Tech and Privacy Law class by asking the students to engage in a short reflection exercise on how they would describe the impact a Trump presidency may have on the status of privacy law and rights (e.g., surveillance, health decisional rights, etc.). The students thanked him for artfully addressing the “elephant in the room.” Another colleague, Professor Keith Hirokawa, who teaches Environmental Law, noted the “awkwardness in the air” and the distracted human beings sitting in front of him given that a climate change denier is the lead Environmental voice on the transition team. He adapted his teaching this week using a class design model provided by Professor Victor Flatt assigning students to think through and draft memoranda to the Presidential transition team on Environmental Issues. A faculty peer observer noted
One takeaway from observing this class was that Keith was able to hold space for students with diverse opinions, while also providing a cathartic space for students who are grieving the outcome of the election. By engaging the students in the work that real lawyers are doing as we speak in Washington, DC and New York (the two host sites of the transition team), students were able to process their reactions through tangible legal research and policy analysis, developing their skills as emerging attorneys and (hopefully) finding some comfort in the law.
Sixth, we focused on self-care for students, staff, alums, colleagues and ourselves. We gave out hugs and food, took walks with students, and discussed exercise, nature, loved ones, favorite comfort activities. We explored how to create boundaries with those who were jubilant about their candidate’s victory. I thought about the readings I provide students on vicarious trauma and how to overcome it and about Professor Jill Engle’s wonderful article “Taming the Tigers: Domestic Violence, Legal Professionalism, and Well-Being,” 4 Tenn. J. Race, Gender & Soc. Just. 1 (2015) describing how she and her clinic students struggled with the trauma induced by the death of their client at the hands of her abuser, just three days after they had served him with a divorce complaint. Professor Engle focused on her role as a “self-aware mentor” focusing and modeling self-care, balance and mindfulness. She reached out to other law professors and colleagues for help in navigating teaching through the crisis and she allowed the students to move from the stage of engaging in healthy professional self-awareness to using the emotions and trauma as a catalyst for social justice activity.
I also recalled the advice of well-respected researchers in the area of lawyer and law student mental health. Professor Engle aptly notes, “[G]reat teachers care how students are doing in life. Teachers that care about people help counter declining civility in the legal profession and convey the idea that people and their feelings matter.” NANCY LEVIT & DOUGLAS O. LINDER, THE HAPPY LAWYER: Making a Good Life in the Law, 54 (2010). Professor Lawrence Krieger’s research leads him to assert that, “[f]aculty modeling is an indirect, but pervasive and powerful source of messaging to students about the appropriateness of authenticity, conscience, interpersonal awareness, and humility,” and that, “[s]elf-reflection . . . should lead us to conscious modeling of authenticity, inspiration, and the holistic personality our students will need as professionals dealing every day with the complex interpersonal situations typical of law practice”. Human Nature as a New Guiding Philosophy for Legal Education and the Profession, 47 WASHBURN L.J. 247, 289-90 (2008)
Seventh, we have started to assemble good information to provide for those students who want to use their legal skills, their empathy, their passion and their hurt as a catalyst for change. Just as good client-centered lawyers provide information about the law and the legal system to clients, in a hopefully non-judgmental way, so too we need to be resources for those students whose traumatic reaction progresses to energy around creating change. (More about that in my next post).
Many of our readers this week have done all I describe above and probably much more. If you are in the stage of the process in which you need to exercise self-care to truly be an authentic self-aware mentor, I encourage you to attend to that restorative need. If you have already moved into action on social justice, I applaud you. If you are thinking about the many lessons which are critical for legal education at this moment and how to teach them without reference to particular political outcomes, I invite you to post a comment below. You are Great Teachers All.