PRESENTER: Professor Suk
Gersen is a familiar figure around the law
school, so I'm just going to turn it over to her. PROFESSOR SUK GERSEN: Thank you. I have to admit that the topic,
Diversity and Social Justice, in the first year
curriculum, inspired so many different possible
talks that I imagined that I had a lot of trouble,
actually, figuring out what part of it really to speak on. So I think I'm going to go
on for at least half an hour. And hopefully, there'll be some
time in the end for questions. I'm first going to talk
about an aspect of diversity, and later, I will talk about
social justice in the 1L criminal law curriculum. Under this deanship-- Martha Minow's deanship--
we have become, as a school, more diverse than
ever, both in the student body and in the faculty. When I was a 1L-- and that was now 18 years ago-- Lani Guinier was the
first and only woman of color on the faculty. And she had only
arrived one year before I enrolled as a student. And she's here today. She's my wonderful mentor. And there were no
Asians of either gender, either South Asian
or East Asian. And you might notice
that I'm Asian. When I was appointed as
a faculty member in 2006, I was just the second woman of
color in nearly two centuries of the school's history. And today, students
still frequently tell me that I am the first
Asian teacher, or the first Asian woman
teacher that they have ever had in their entire
educational career. And I spent a somewhat
amusing, but not insignificant, part of my early years of
being a professor getting stopped on the way into
the faculty lunchroom, when the staff would
say, oh, honey, that food is just for the professors. And it's OK. It's all cleared up now. I am a Korean immigrant and
I didn't speak English when I came to this country at age 6. And I was raised in a family
that was very oriented toward education and learning,
but not verbal expression or oral assertiveness. And maybe that was
even more so for girls. So education was a very high
family value, but not speaking. And so the idea that you
were learning something, for me in all my
childhood, learning meant being quiet while
you were learning. And then if I had these
childhood tendencies to raise questions
or ask why, it was generally
considered disrespect or hubris, and stamped
out in my family, sometimes through punishment. And I was also a very
naturally shy person. And so what that meant was that
I had a pretty mute relation to the world. And so 1L year at
Harvard Law School was a bit challenging for me. Because I had always
been a student who was a pretty good
student, but I never spoke and I preferred to just be in
a library, not in a classroom. And so I would sit there in
class and I would be terrified and actually
scandalized that people were speaking on
all kinds of things, and being questioned on things
that they knew nothing about, and had basically no business
expounding on those things. What happened, though,
as I repeatedly was faced with this
cold calling phenomenon and just stumbled
through it was, I think it's no
exaggeration to say that it was a revelation
that changed my life. And then I became
also one of the people who volunteered to do it. And eventually, the
whole idea of learning through speaking and being
in conversation with others and questioning and revising,
that became a way of life that I have that I
treasure and that I also try to impart in students. So many years have gone by
with the Socratic method, and many people have
expressed misgivings about the Socratic method. And I am using
that term to refer to a combination of cold
calling and asking questions of students to draw out
reasons and arguments and counter arguments
and to guide discussion through the posing of
a series of questions. And particularly, I am using
the term Socratic method to contrast it with
other forms of teaching, like lecture and discussion that
relies primarily on volunteers, or a Q&A where the students ask
the questions and the professor just says, this is the answer. Those are the things
I'm contrasting the Socratic method with. And I know that
a lot of students viscerally dislike
the Socratic method. They even report that
it has a very bad effect on their sense of
identity or equality or well-being in the classroom. And critiques like
that, that point to a disproportionate
negative impact on the educational opportunities
of women and minorities, are of special concern to
me, for obvious reasons. In the late 19th century, when
the Socratic method was first introduced here at
Harvard Law School, it was considered a radical
innovation in law teaching. Until that time,
what law teachers did was use class time to lecture. And they would summarize
existing legal rules. They would tell the students,
these are the rules. And then the students
would write it down. They would take notes. And then maybe
occasionally, somebody would ask a clarifying question
and the professor would authoritatively answer them. And when this Socratic
method was introduced, students found it
very disturbing. Because they came to class
to hear the professor. But instead, they heard
their fellow students talking about things. And they would
complain, what do we care whether Smith or Brown
says about this opinion or that opinion? What we want to know
is, what is the law? So why should we care what our
classmates are saying about it? One thing that's striking
about this teaching innovation in the 19th century was
that actually, its aim was to put the focus on
students, as learners and thinkers, and put them at
the center of the classroom instead of the professor being
this font of knowledge who would inform the students
of what the law is. And so there was an
idea that students should be actively engaged
rather than passively sitting there, absorbing information. And so the professor's
opinion was not considered important compared
with the importance of learning through dialogue, to think and
to form their own judgments. So this was, in
some ways, teaching as a guided process of
intellectual discovery that would push the students
to activate their own reasoning process in analyzing
legal doctrine. OK? That sounds great. Well, now fast
forward 100 years, and we've got Duncan
Kennedy, which I know you've had Duncan
lecture in this series. And Duncan, he
writes a piece called "How the Law School Fails." And this is while he is a
student at Yale Law School. And he said that the Socratic
method, as usually practiced, quote, "is an assault." He observed that students
often respond physically and emotionally
to questioning, as though they were in the
presence of a profound danger. And they see professors as
people who want to hurt them. Professor's actions often
do hurt them, deeply. And he accused
professors of, quote, "an astounding lack of awareness
of what they are doing. They have neglected a
professional responsibility of the first order. And in so doing, have
inflicted emotional harm on their students." And he also said students are
aware of the pleasure that is taken in their subjection,
and even suggested the element of destructive
aggression of terrorism in teaching law is a real
psychic good for the teacher. So not only were teachers
emotionally harming students with the
Socratic method, they were manifesting
sadism in doing so. So then, a little
later, as a professor at Harvard Law School-- and by the way, Duncan
was one of the most famous and masterful users
of the Socratic method all throughout his
teaching career. He follows up with
a piece called "Legal Education and the
Reproduction of Hierarchy." It was known as Little
Red Book, and it is considered a classic text
of the critical legal studies movement. And so what he says is, "The
sense of autonomy that one has in a lecture with the rule
that you must let the teacher drone on without interruption,
balanced by the rule that they can't do
anything to you, is gone." Right? Like right now, you're
letting me drone on. I can't do anything to you. And you have a certain
amount of comfort in that. Right? So he says, "In its
place is a demand for pseudo participation, in
which one struggles desperately in front of a large
audience to read a mind determined to elude you." [LAUGHTER] Yeah? Some recognition? OK. So he says, "It is humiliating
to be frightened and unsure of yourself, especially
when what renders one unsure is a classroom
arrangement that suggests at once a patriarchal family
and a Kafka-like riddle state." He also suggested that with this
law school, what teachers are doing is intensely political. That law schools are
intensely political places that are engaged in, at
bottom, ideological training of students to be
willing participants in the hierarchical
structure of life in the law. So the idea is that
the student posture is, quote, "double surrender." Surrender to a passivising
classroom experience and to a passive attitude
toward the content of the legal system. So what happened? Right? The Socratic method is
supposed to disrupt hierarchy by putting students throughout
the class at the center of the classroom experience,
in place of the professor's authoritative views. That is what the aim was. But qualities that the
method is supposed to nurture in students, like
independence and autonomy and self-confidence and
a capacity for critique, those are-- in
Kennedy's account-- they're taking a serious beating
in the Socratic classroom. And Kennedy's flipping
the idea of passivity to say that the
autonomy is associated with the students in a
lecture, and that when Socratic participation
is demanded, they lose that autonomy. So something that's supposed
to lessen authoritarianism and deference by
students, in his account, is actually just having
the opposite effect. And then further,
there are arguments that Kennedy and others have
made, including Lani Guinier, that the professional style
in a law school classroom is identifiably white,
male, and middle class. So that when you become
acclimated and assimilate into the way of interaction
in a law school class, then you're basically,
in Lani Guinier's words, "becoming gentlemen,"
the gentleman being white, male, and middle
class, or upper middle class. Now, if you buy that the
Socratic method causes the kind of terror and is
an expression of this kind of hostility and that it causes
disempowerment in students, and it's also stylistically
white, male, and middle class, then the question also arises,
does the teaching, in this way, not impose disproportionate
harm to students who are actually women and
racial and class minorities? That's the question. The idea that law
school teaching might have a disproportionately
negative effect on female and minority students has-- we've seen this argument
come up time and again. And a few years ago, in
2013, Harvard Law School had a student group
that was just formed. It's called Shatter the Ceiling. And they were
formed specifically to address gender
disparities in the school, and one focus being
the Socratic method. At the time, one female student
told The Harvard Crimson that the Socratic
method is, quote, "the worst thing in the world. It forces you to
talk like a man. Women take longer to process
their thoughts before they feel comfortable sharing them
and saying them out loud, the way men do." This is a student
quote to The Crimson. And in the last couple
of years, we also have seen some student activists
in Reclaim Harvard Law-- and not all, but there's
been a strand of Reclaim-- that has critiqued
the Socratic method and suggested that
it might be one of the mechanisms at the school
for disadvantaged minorities in the classroom. The significance of this
idea of emotional harm that was first
raised by Duncan, it partakes of a general
cultural renaissance of the language of trauma,
which is particularly drawn from the medicalized
notion of post-traumatic stress disorder, that
terminology, PTSD. And this is a language
that is increasingly used to refer to suffering,
and particularly by women. So as a case in point,
currently a student group at Harvard, HALT, Harvard
Assault Law Student Training, if you go
on their website, they have a bunch about PTSD
and the Socratic method. And what they say
is that "Professors can benefit students
with PTSD by decreasing their use of the adversarial
Socratic method, in which students cold call students. An aggressive classroom
tone that subjects students to the panic that
suddenly being on the spot can invoke, along with
the fear of knowing a cold call is imminent. This can prompt a flight
or fight reaction, causing the student
to shut down, freeze, dissociate,
or experience a flashback or a panic attack. Dispensing with the most
confrontational forms of the Socratic
method, thereby making classrooms less
adversarial, would better account for traumatized
students' needs." So this set of claims,
which is really interesting, relies on the idea of
assault and aggression, just like Duncan said. Socratic method is
an assault, at least the way it was practiced. And in particular, the
cold calling, I think, is the aspect that
is most notable. In this account, students
who have experienced traumatic events and
might suffer from PTSD can have a traumatized
reaction to being cold called. And describing the panic
and fear of a cold call as prompting a
student to, quote, "freeze or dissociate" in class
now echoes common descriptions of victims in sexual
assault, reacting in what is known
as frozen fright, when they feel they're about
to experience an assault. So it's really interesting. This rhetorical move
serves to compare the experience of being called
on in a Socratic classroom to being assaulted. And the teacher is the one who's
imagined to inflict the injury, in place of the assailant. And one female Harvard Law
School student told a reporter, "I just don't think the
benefit of being taught rape in criminal law
justifies what I think are the many harmful effects." And I think that those
harmful effects that are being referred to here are
the emotional injuries that might be associated with
the classroom experience itself, presumably
attributable to a combination of the teaching method and the
content, the substance of what teachers and students
might say in class. And perhaps it has to do with
the personal relationship that some students may
have to the subject matter of the classroom. And in an increasingly
diverse student body that is drawn from so many
different communities that were previously not
well represented here, you're going to have
a lot of subjects that people feel
some relation to. So the question I think
we all are concerned with is how, through our teaching,
we can best promote equality of educational opportunity. And equality in the legal
profession and in society. So I am a cold calling Socratic
teacher of criminal law. And I devote a lot
of hours in class to sex-related, sexual violence,
domestic violence, gender violence-related topics. And I have, over
the years, heard some students report that
they are anticipatorily really nervous about the class,
as things like the rape law unit approaches. And some of them
have even told me, I really want to switch
out of your class so that I can be with
a professor who is not going to spend that much time on
sexual assault, on that topic. Preemptively. I'd like to switch to
any other teacher who is going to spend one
class session on it instead of the several-- maybe like between
four and five-- that I spend on it. And really, though,
in my class, there is precisely no
one day or one week that is devoted to topics
related to such material. They kind of pervade my
class-- whether the topic is actus reus or mens rea
or causation or conspiracy, prosecutorial discretion--
whatever it is, they're going to be present on most days. And they're going to be
difficult to avoid discussing. And this is true for gender
violence-related matters. And it is true for
race-related matters. So if you generally
ask a teacher how they address diversity
and social justice in their courses, usually-- not always-- you
are going to get them talking about
that particular case that they introduced
into the curriculum that involved black people or that
involved women being violated. Right? That's usually what
people mean when they say, how do I deal with diversity? But that is not my
approach in criminal law. Sure, there are cases
about battered women and there are rape cases. There is the
Bernhard Goetz case. But the approach to
diversity and social justice in criminal law is really,
in my rendering, what could be called the pervasive method. And in some ways,
the Socratic method is just right for
that because it's just right for teaching about
subjects on which ideologies and orthodoxies
have actually taken root and disappear
in plain sight. So the Socratic
method commonly tends to elicit reasoning and
argument and views in order to highlight the possibility
of disagreement or conflict or reconsideration. And one example that
I teach is rape law. It sits at the crossroads
of two ideologies that tend toward orthodoxies,
the historical sexism and misogyny that has infused
rape law for hundreds of years, and then also contemporary
feminist tenets that have risen to counter that sexism. So this is a time when the
classroom is increasingly perceived as a potential
site of trauma. And on today's university
campus, a lot of things that fall along a continuum-- like harassment, unwanted
touching, sexual remarks-- you hear them being
rhetorically equated as if they are substitutes for rape. And similarly,
it's become really common to hear people refer
to a lot of things that are unpleasant or
uncomfortable or unwelcome or disliked as traumatic. So what happens is that--
there's a theorist at Columbia named Sharon Marcus-- she calls this a collapsed
continuum of sexual violence. So that the trauma
of rape is analogized to other types of emotional
injury or even discomfort. And the more the
classroom itself is perceived as a cause of
emotional harm for students, the more the classroom
can be likened to, or experienced as,
a site of trauma analogous to assault itself. And that development
is, of course, of most obvious relevance
to teachers of what you might consider hot topics. I think that Duncan introduced
the idea of hot cases. And implicitly, by contrast
to cold cases, or topics. But teachers of hot topics-- and I consider race
and sex and violence to be among the hotter
topics in the curriculum-- teachers who do those topics,
they have a greater risk. They bear a greater
risk that something that happens in the
course of teaching will be considered by
someone as traumatic or even sexual harassment. And it happens that women,
particularly feminists and minorities, are more
likely than white men to be teaching on those topics. Which means that minorities
and feminist teachers are at particular risk
of being perceived as causing emotional
harm to students through their teaching. And so there are several
ironies coming out of this cultural move
to frame the classroom as a site of trauma for
students in universities. Of course, they want to
protect educational opportunity of students. And we've seen an expanding
idea of what constitutes injury, what constitutes harassment. And so progressive teachers
who tend to write and teach about sexual and
gender-related matters, or about race-related
matters, they have become more vulnerable
to accusations of harassment. And second, subjects
regarding sexuality or race that were once marginalized
in the curriculum because they were associated
with women and minorities are, in my view, at risk of
being marginalized again. Because of this
fear that teachers will, in the course of
teaching those subjects, distress students
and make a school vulnerable to accusations
of harassment. So I, nevertheless, persist
in teaching on these subjects. Maybe it is foolhardy. I have a commitment to
going to difficult places in intellectual
life, hot topics. I believe that doing
so on questions of gender and
sexuality and race is essential to the
pursuit of equality. And maybe I have a naive faith
that goodwill has to be heeded, even in the face of
disagreement and conflict. But I continue to
hear from colleagues at multiple schools who say
they are limiting or refraining from teaching topics that
are too hot to handle, in an environment in which the
teaching might inadvertently injure students, and not receive
the benefit of the doubt. To me, this is disheartening. I really hope that
this turns out to be a blip rather than
a horrible, unintended consequence or sustained
feature of co-education. In criminal law-- let me
now transition a little bit into criminal law-- what I call the pervasive method
is not about that day in class when we talked about
race or that day in class when we talked about rape law. It starts with framing
on the first day. And so in my reading
for the first day, I assign a few things together. I assign Robert Cover,
Violence and the Word. Basically, I'll read
to you from a couple of lines from his text. "Legal interpretation
takes place in a field of pain and death. Legal interpretive acts signal
and occasion the imposition of violence upon others. A judge articulates his
understanding of a text. And as a result, somebody loses
his freedom, his property, his children, even his life." So the idea is that law is
something that doesn't just-- it's made up of
words, of course-- but it's not something
that describes. But it actually does
something in the world. And that something is the threat
of state-imposed violence, even when it is not used. Unlike your counterparts
in other disciplines, your reasoning can
also become acts, channeled through the authority
of government institutions, backed by state force, when
life and death consequences are on the line for real people. I pair that reading
with a selection from Michelle
Alexander, The New Jim Crow: On Mass Incarceration. And she relies,
in this selection, on the metaphor of
a bird cage, which is borrowed from the
theorist Iris Marion Young. So if you think-- and I'm reading from her-- "If one thinks about racism by
examining one wire of the cage or one form of
disadvantage, it is difficult to understand how
and why the bird is trapped. Only a large number of wires,
arranged in a specific way and connected to one another,
serves to enclose the bird and to ensure that
it cannot escape." So this is the frame. Because one of the things that
we hear a lot from students is that there's a way
in which something about the 1L teaching-- that phenomenon of teaching
through the case method, through the Socratic method
in the 1L curriculum-- tends to basically take these
doctrines in a very abstract way and abstract out
all of the context, including the racial context
or the gendered context or the class context. And there's a lot of study of
a piece of doctrine in that way that doesn't give
you the way that it operates in the world, the
distributional consequences. Who does it hurt? Who does it harm? What groups are
affected in what way? And how could those
consequences even be unintentional and unexpected? This frame-- so with these
two sort of theoretical works, I assign on the very first
day, the Supreme Court case of Tennessee versus Garner,
in which a police officer shoots a teenager in the back. The teenager is
suspected of a felony and is fleeing and unarmed. And I also assign the
grand jury testimony of Darren Wilson, the
police officer who shot Michael Brown, who was unarmed. That is the framing
for the course. That's day one. And the idea of legal
interpretation is violence. And then a view of the
distributional consequences, an argument about the
distributional consequences of that violence. And then reading cases in
dialogue with those ideas. And so then, with
every class, we're going to have a
discussion of cases that are in all the case books. And when you look at the
case books and the way they're framed in
the case books, and then you look at
the teacher's manual-- because there are these
teachers manuals that tell you how to teach those cases-- and they are cases
that could definitely be discussed without
any reference to race or gender
or class or to what distributional
consequences there are. But I am pretty
relentless with my cases about asking students to
consider those consequences, and which groups in society
are going to lose or win as a result of those cases. And it's not always obvious. Often, there are multiple
arguments on opposite sides. It's now been four
weeks into criminal law and I'm going to only try to use
examples from those four weeks. I don't want to have too many
spoilers for the students here who are my
current students. But you have Chicago
versus Morales, the case about due
process and vagueness. You can certainly teach that
as a class about due process and vagueness, which it is. But there is a whole
debate about broken windows and about race
distributional consequences of law enforcement
policy that undergirds the law in that case. People versus Newton, which
is the case about the man who shoots a police officer and
then claims that he did it in a state of unconsciousness. And the doctrinal
question, as you see it on all the case books
and teaching manuals, it's about what constitutes
unconsciousness. If you've been shot and you
have an automatic reflex system reaction, is it unconsciousness? And then therefore, is
it an involuntary act? That's the way that
it can be taught. But actually, you
know, amazing to me, people sometimes teach it
without reference to the fact that this is a case
about Huey Newton, one of the founders of
the Black Panthers. And that this case, where
he shot a police officer in the context of being a
founding member of the Black Panthers, who advocated
self-defensive violence against cops who
would be harassing black members of society,
that that is not considered the context for this discussion
about what is a voluntary act. In act versus omission,
we have a case, People versus
Beardsley, which is about a man who holes up with
his mistress over the weekend. And then, in the
course of doing so, the mistress has a drug
overdose and he fails to take her to the hospital. He omits to take
her to the hospital or get any kind of medical help. She dies. Question is, did he have a
legal duty to act or not? And again, the
case can totally be discussed without much
conversation about gender. But this is a case in which
the court definitely thought about the relationship
between these two people as one that was
immoral and adulterous, and one where the woman was
seen as an immoral woman who was having an affair
with a married man. And so that moral consideration
goes directly into the idea of, should there be a
legal duty here? Should that be imposed? Later, strict liability,
obviously a lot of criminal law teachers teach
that strict liability doctrine through cases of regulatory
crimes, which I do, as well. Regulatory offenses, like drug
distributors who send out drugs into the market and they
happen to be mislabeled, or they don't know what's
in them and they're tainted. And you can do that. You can leave it at that. But what I also try to
do is to compare it-- the arguments for
strict liability there, who's the least cost
avoider, et cetera-- and compare it to contexts
like discrimination, like bias intimidation crimes,
where there's a debate about, should you have strict
liability on the accused when they do things and say
things that intimidate others on the basis of sex or race? And do the arguments
from one context transfer over into
the other context? If so, why? And if not, why not? So I guess my-- it just goes on and on. I don't want to-- I have many examples, but
I see the time is short. But the idea is that these-- it's not about
choosing that case. Being like, I need
a case about slavery or I need a case about
women who are raped or women who were beaten. That's not the approach. It's a pervasive
method, which is you take cases that
aren't necessarily about, on the surface,
race or gender, and you show through
the questioning-- you elicit, from the
students, a reflection on what kind of
distributional consequences they might have in society. And that might be a race
or gender or class impact that, of course, judges
aren't necessarily being either open about
or being conscious of. So that is how I
approach teaching. Returning to the issue
of the Socratic method, obviously, I have
had my differences over the years with my
esteemed mentor, Lani Guinier, on the question of
the Socratic method. I think that it's
not an exaggeration to say that I am one of the
strictest users of the method today, 200 years in to
this law school tradition, in the existence
of the law school. And it's funny
because, for me, it was the kind of thing where
if I hadn't been taught through the Socratic method,
I would have remained silent the entire time. And I think that there was a
way in which being in a habit, and knowing that all my
classmates were going to be in this habit, of being
asked to engage and think and to express and to dialogue
and to have conversations in this context of teaching, was
something that was good for me. And it would have
been a big loss for me had I not had
teaching through that method. But I also know that
I'm not like everyone and everyone is different. But the last thing
I want in my class is an atmosphere in which it
defaults to the volunteers, because I have
experimented with that. And when I have the
experience of evenly calling on men and women and having a
lot of diversity, when my TAs-- some of them are here today-- when they write it down,
they discover afterwards that actually it was the white
males who spoke the most. And often it's something really
shockingly disproportionate. So when I do the Socratic
method, it's very strict. It very evenly
tracks men, women, makes sure that everybody
is being called on equally. And that, for me,
works very well with the atmosphere
I'm trying to create, which is not one of arid
games with toy puzzles. But rather, with hot
topics and modeling the kind of
engagement that I want to see more of in our democracy,
the kind of conversation, listening, responding,
reconsidering, in light of questions that are posed. So that is what
drives me to teaching, the practice of reasoned
argument about precisely those politically-contested
matters that people associate with
the rubric of social justice. And these are the issues
that most divide people. And the fact that that can also
have universal significance. But my goal is to
see those conflicts played out in the classroom
through reasoned arguments that models respect and
civility for others. So I think I will now stop and
leave some time for questions. AUDIENCE 1: Thank
you for talking. I'm a 3L. And I've never had the pleasure
of taking a class with you. But it seems like every time
registration would come up for courses, I would have
at least one conversation with a friend who would say-- I would mention a certain
class I want to take. They would say, no, no, no. Don't take them. They're a hard cold caller. Or no, no, wait a year
until someone else is teaching the class
and then take it. Because the cold
calls are really bad. Even on HLS Dope it says, cold
calls, hard, none, whatever. It's factored in. So you have the Socratic
method almost working as a gatekeeper of sorts. PROFESSOR SUK GERSEN: Wow. So I've been diminishing
my student enrollment by-- STUDENT: Oh, I don't
know about you. Although I've heard you
like the Socratic method. But what do you say to
those people who have not explored a certain subject,
taken a certain professor, all because they either view the
Socratic method as an annoyance or they dread it, they
fear it, I guess, again, as that gatekeeper? PROFESSOR SUK GERSEN:
Don't get me wrong. It's something I understand
personally and deeply because I experienced it myself,
that fear, sitting there, terrorized in class and
feeling like I hate this. I don't want this to happen. Why can't the
professor just lecture? And so I do understand it. I'm very sympathetic. But I'm also, out
of my sympathy, I wish those students could
experience the Socratic method differently. I wish that they would
have a teacher who would open it up for
them in a way that makes it more appealing. And at the end of
the day though, maybe you could
have an appealing instantiation of
the Socratic method, but you might still hate it. That's also possible. But the main thing is, I would
hope that those students also have alternative means of
learning the kinds of skills-- because the Socratic method
isn't uniquely equipped to teach those skills. There are lots of
ways, alternative ways to learn those skills. And to me, those skills are
that practice of engagement, of rigorous analysis through
dialogue with others. And you can do that in
small group work, which I know that Lani
Guinier, for years, used that with a lot of success. But it's hard to scale
that kind of work, sometimes, in a large class. And I also think that there's
a unique, special moment of the engagement
with the professor, not just dialogue with
your fellow students. There's a special
thing that can happen with professor and
student that I think is a really beneficial thing. But mainly it's just
the skills of being, I'm sorry, on the spot to speak. That is one of the
things that you're going to do in the
legal profession, and mainly in all
professions that don't involve just staying at home. Maybe like being a
writer or something. But there's
interaction with others and making arguments and
listening and responding. That kind of thing is just
really important to learn. And so I would hope
that those being mindful of what kind of teaching
method they want to experience, would also keep in mind
that that is something that they shouldn't avoid. Because it will only equip
them for further success and fulfillment
later on in life. It's not just about
getting that job. It's also about how
you are in that job. How comfortable
are you doing that? And I am not someone who thinks
discomfort is to be avoided. Sometimes discomfort
is worth it. [? Erica? ?] Oh, sorry. I think because
they're recording. AUDIENCE 2: Oh, I see. Thank you, Professor Suk. When women first started coming
on to Harvard Law's campuses, there was so much overt
discrimination against them. I think there weren't even
bathrooms here, right? They couldn't even pee on
campus, which is crazy. So they would do pee-ins
to protest the lack of bathrooms for women. And I think over
time, discrimination has obviously shifted from
overt ways to covert ways. And I just want to
re-characterize something. I don't know if it's just
that people automatically find comfort in using
or invoking trauma as a language to use to
describe their experiences in the classroom. I think what happens
is that, since there is a lack of overt
discrimination, they don't know
how to characterize what happens in the class. I'm actually thankful
to Professor Kennedy for really pushing my thinking
of why students invoke trauma instead of saying, oh,
well that's just sexist, or that's just racist. Because then when you
say that, it's like, oh, wow, you can't call
this person racist or you are being
overly sensitive or you're misunderstanding
what they're saying. So if students
can't identify when professors are being racist
or classist or homophobic, and they can't
invoke trauma, what would be your advice to students
to be critical of what they're experiencing in the classroom? PROFESSOR SUK GERSEN: Yeah. I would definitely err on the
side of calling it like it is, rather than saying, I am
emotionally distressed and traumatized. But it is also something
that I try to model in class. You've got 80 students
and everyone is imperfect. The teacher, too. And not everything you
say is going to come out the way you wanted it to. And there's also a kind of-- the frequency of cold
calling and everybody making mistakes a lot lessens the
stakes of each cold call. I think the same thing with
when you discuss race-related and gender-related topics a
lot, you're going to have a lot of people making certain fumbles
around it and saying things that they didn't-- they wouldn't have said it
exactly that way if they had thought about
it a little more, or if they had had some time
to collect their thoughts. But the purpose of this
exercise is that live-- and the benefits you get from
that come with the costs. Right? And so I think that there
is a kind of empathy that can be built into that
kind of classroom practice. So that even calling
someone out can be done in a way that is part
of the collective enterprise, as opposed to a, "therefore, you
are excised from the community of people that I respect." And the other thing that I
think that goes on in my class is a separation between
the speaker and the views. Because I'm always
asking students to articulate views that
are not their own views and then telling them if they do
articulate those views, to say, OK, now say the other side. There's a way in
which even saying that statement had this
interpretation or implication, it can be taken better as
a call for examination, rather than, you are an evil
person or you are a racist, as opposed to that
had this implication or this overt statement that
I am taking to mean x or I'm interpreting this way. So I think that those
are the kinds of things that I think are productive. Yeah. But I am not like, let's
just take everything that we don't like and
call it emotional distress. Clara? AUDIENCE 3: I'm
wondering how much of the anxiety
around cold calling and legal learnings,
specifically, at this law school has to do with
the historical makeup of the school, as opposed to
what it looks like right now. Because I think that no matter-- I think last year was the
first time women made up more than 50% of the class. And this year it's
back to just 50-50. But that ignores the
much longer history of it being entirely
male and entirely white. And so how much of that
history and the legal texts-- even if they have contexts
being written by a specific type of person, so white men-- do you think influences
this anxiety? And how can we be better
at incorporating that and recognizing what
space this once was, even if it looks like this now? And I'm of the view that
if Harvard Law School was white and male for 100
years, it can be all minority and female for 100 years. Right? That's, to me, the correct
answer, and not to even it out 50-50. And until we have the opposite
of what it used to be, I think there will forever be
this anxiety about looking at-- walking down these
halls and seeing these faces where you don't see
yourself in these frames until the very end
of the hallway. And even there you
wonder, is that just so this picture can
be framed on the wall or is it because we truly value
these people in this space? PROFESSOR SUK GERSEN: Yeah. I do not agree that
the solution to 100 years of lack of
co-education is to make this into a women's school. I do not think that the idea
that we have this background in our past, I do not agree
that that is something that we cannot incorporate
into our learning. I think you didn't say that. But basically, I think one
of the important things about teaching some
of these cases-- when you're teaching
rape law, to teach it without teaching the
background, the fact that the way rape law was
for hundreds of years, is a move that teachers make
that I think is a mistake. Same thing with approaching
legal education. To not take into account
the fact that this was once an all-male space,
I think the teacher needs to be mindful
of that and to really consider what that means. I do not-- and then people
might have different directions that they take that in. I don't take it in
the direction of, so therefore let's not do
some of the great things that were invented at a time
when it was all white men. You've got to take the
things that are good about it and allow people who
weren't allowed to be there to now benefit from them. And that's how I
approach the teaching with the Socratic method. But yeah, I think that there's
a lot in the background of female students. Even just the
awareness that it used to be that women
students were not even allowed to speak in class when
they were admitted in 1950. That there was a-- teachers just were not going
to call on female students, whether cold call or volunteer. And that they were only
allowed to speak on-- in some classes-- designated
days, when they were, on purpose, questioned
about embarrassing topics like the sale of underwear
or something like that. And I think that that's
just-- it's something that hangs in the
atmosphere, just like the exclusion of
blacks and the slavery history of our school. All of that has to be
kind of in the class and present in the class
through our teaching, rather than ignored. PRESENTER: Sorry. We have to vacate the room. Thank you very much. PROFESSOR SUK GERSEN: Thank you. [APPLAUSE]
