Planting Seeds: Incorporating DEIA into an FCIL Legal Research Course

Abstract

AbstractAcademic institutions have been encouraging the adoption of diversity, equity, inclusion, and accessibility (DEIA) themes in classrooms over the last decade, but these initiatives can often be limited to buzzwords in goal statements or ideals. This article focuses on the practical application of DEIA within the curriculum of one legal-research course. Facilitated primarily through the use of journal articles, we covered topics such as algorithmic and data bias, discriminatory treaty practices in Africa, the decolonization of comparative law, and enduring prejudices in subject headings, among others. This article outlines the planning process, reviews classroom activities and discussions, shares lessons learned, and annotates discussion materials used.Keywords: legal research instructiondiversityequityinclusionaccessibilitycritical legal researchteaching materials AcknowledgmentsSpecial thanks to everyone who helped prune this tree, in particular Jennifer L. Behrens at Duke University’s School of Law, Nicole Downing at the UNC School of Law, Sabrina A. Davis at the Fifth Circuit Court of Appeals, Michele A. L Villagran at San José State University’s School of Information, as well as all those that read, commented on, and helped workshop our article, especially the librarians at the UNC and Duke Law Libraries.Disclosure statementNo potential conflict of interest was reported by the author(s).Notes1. Vernā Myers, Moving Diversity Forward: How to Go from Well-Meaning to Well-Doing (2012) (“Diversity Is Being Invited to the Party; Inclusion Is Being Asked to Dance” quotation available at www.vernamyers.com/%20about-%20verna/%20books/).2. Nadia Craddock, Who’s Dancing at the Party: Diversity, Equity, and Inclusion within AED, Academy for Eating Disorders Blog (Jan. 9, 2020), www.aedweb.org/blogs/nadia-craddock1/2020/01/09/whos-dancing-at-the-party-dei-within-aed (building on Vernā Myers metaphor, equity is ensuring everyone has transportation to the dance, regardless of the station leaving from).3. See generally, e.g., Frances Lee Ansley, Race and the Core Curriculum in Legal Education, 79 Cal. L. Rev. 1511 (1991) (arguing that law schools should integrate a focus on race into the core curriculum); Okianer Christian Dar, Incorporating Issues of Race, Gender, Class, Sexual Orientation, and Disability into Law School Teaching, 32 Willamette L. Rev. 541 (1996) (encouraging law professors to incorporate discussions about diversity issues in law school courses); Gerald P. López, Training Future Lawyers to Work with the Politically and Socially Subordinated: Anti-Generic Legal Education, 91 W. Va. L. Rev. 305 (1989) (presenting a critique of legal education’s failure to adequately educate attorneys to represent subordinated people).4. See, e.g., Mark Tushnet, Presenting Issues of Diversity and Social Justice in the 1L Curriculum: A Report on a Lecture Series and Seminar, in Integrating Doctrine and Diversity: Inclusion and Equity in the Law School Classroom 31 (Nicole P. Dyszlewski, Raquel J. Gabriel, Suzanne Harrington-Steppen, Anna Russell, and Genevieve B. Tung, eds., 2021); Alexi Nunn Freeman & Lindsey Webb, Positive Disruption: Addressing Race in a Time of Social Change Through a Team-Taught, Reflection-Based, Outward-Looking Law School Seminar, 21(2) Univ. of Pa. J. L. and Soc. Change 121 (2018) (discussing the conception and implementation of a critical race reading seminar at University of Denver Sturm College of Law).5. See generally, e.g., Integrating Doctrine and Diversity: Inclusion and Equity in the Law School Classroom (Nicole P. Dyszlewski, Raquel J. Gabriel, Suzanne Harrington-Steppen, Anna Russell, and Genevieve B. Tung, eds., 2021) (including articles about incorporating diversity into property, contract, constitutional law, legal-research, and civil-procedure classes); Teri A. McMurtry-Chubb, Strategies and Techniques for Integrating Diversity, Equity, and Inclusion into the Core Law Curriculum: A Comprehensive Guide to DEI Pedagogy, Course Planning, and Classroom Practice, (Howard Katz, ed., Wolters Kluwer, 2022) (offering examples of how to integrate DEI into core law curriculum by subject matter, including: contract law, civil procedure, criminal law, property law, constitutional law, legal analysis and + writing, and tort law).6. See, e.g., Susan Bryant, The Five Habits: Building Cross-Cultural Competence in Lawyers, 8 Clinical L. Rev. 33 (2001) (suggesting a teaching method for legal clinic courses for training students to identify and address cross-culture issues).7. See generally, e.g., David A. Hoffman, Teaching Diversity at Harvard Law School: Or; The Education of a Straight, White, Cisgender, Male, Able-Bodied, Upper-Middle-Class Lecturer on Law, 27:3 Disp. Resol. Mag. 24 (2021) (discussing his attempt at teaching diversity at Harvard Law School); Antoinette Sedillo Lopez, Beyond Best Practices for Legal Education: Reflections on Cultural Awareness—Exploring the Issues in Creating a Law School and Classroom Culture, 38(3) Wm. Mitchell L. Rev. 1175 (2012); Angela Mae Kupenda, Making Traditional Courses More Inclusive: Confessions of an African American Female Professor Who Attempted to Crash All the Barriers at Once, 31(4) Univ. S.F. L. Rev. 975 (1996); Robert S. Chang & Adrienne D. Davis, Making Up Is Hard To Do: Race/Gender/Sexual Orientation in the Law School Classroom, 33(1) Harv. J. L. and Gender 1 (2010).8. See, e.g., Natasha Aggarwal, Learning Diversity at Harvard Law School: Or: The Education of a Privileged Law Student Who Thought She Knew Everything, 27:3 Disp. Resol. Mag. 29 (2021) (discussing her experience learning about diversity at Harvard Law School).9. See, e.g., Nicole P. Dyszlewski, Integrating Diversity into the 1L Curriculum, One Librarian at a Time, 25 U.C. Davis Soc. Just. L. Rev. 64 (2021); Johanna K. P. Dennis, Ensuring A Multicultural Educational Experience in Legal Education: Start With the Legal Writing Classroom, 16 Tex. Wesleyan L. Rev. 613 (2010); Shamika D. Dalton, Teaching Cultural Competency through Legal Research Instruction, in Integrating Doctrine and Diversity: Inclusion and Equity in the Law School Classroom 279 (Nicole P. Dyszlewski, Raquel J. Gabriel, Suzanne Harrington-Steppen, Anna Russell, and Genevieve B. Tung, eds., 2021); Shamika Dalton, Incorporating Race into Your Legal Research Class,109:4 L. Libr. J. 703, 707–10 (2017); Clanitra Stewart Nejdl & Shamika D. Dalton, Legal Research Instruction and Diversity, Equity, and Inclusion: Insights for Classroom Management in Person and Online, 41:2 Legal Reference Serv. Q. 82 (2022); Yasmin Sokkar Harker, Invisible Hands and the Triple (Quadruple?) Helix Dilemma: Helping Students Free Their Minds, 101 B.U. L. Rev. Online 17 (2021).10. See, e.g., Lorraine K. Bannai & Anne Enquist, (Un)Examined Assumptions and (Un)Intended Messages: Teaching Students to Recognize Bias in Legal Analysis and Language, 27 Seattle U. L. Rev. 1 (2003) (discussing how legal-writing courses can address cultural bias and its effect on legal analysis and language, with discussion regarding challenges and tips for handling discussions in the classroom); Leslie M. Rose, Teaching Gender as a Core Value in the Legal-Writing Classroom, 36 Okla. City U. L. Rev. 531, 536 (2011) (discussing methods of introducing gender in legal writing classes by consciously avoiding stereotypes and teaching gender-neutral language).11. See, e.g., Dalton, supra note 10 at 707–10. 12. Paulo Freire, Preface to Pedagogy of the Oppressed 50th Anniversary Edition 35 (Myra Bergman Ramos, trans., Bloomsbury Academic 2018). While the authors recognize the sexist language in Paulo Freire’s early work, his work was influential as a beginning treatise in critical pedagogy. See bell hooks, Teaching to Transgress: Education as the Practice of Freedom 49 (1994).13. Id. at 83 (emphasis in original).14. Hooks, supra note 13 at 45; Antonia Darder, Chapter Two: Paulo Freire and the Continuing Struggle to Decolonize Education, in Paulo Freire: The Global Legacy 39, 40 (Peter Lang AG, 2015).15. See generally, e.g., Henry A. Giroux, On Critical Pedagogy (Bloomsbury Academic, 2nd ed. 2020); Kevin M. Gannon, Radical Hope: A Teaching Manifesto (West Virginia University Press, 2020); Daniel G. Solorzano & Tara J. Yosso, Maintaining Social Justice Hopes within Academic Realities: A Freirean Approach to Critical Race/LatCrit Pedagogy, 78(4) Denver Univ. L. Rev. 595 (2001); Sheila I. Vélez Martínez, Towards an Outcrit Pedagogy of Anti-Subordination in the Classroom, 90(2) Chicago-Kent L. Rev. 585 (2015); Aníbal Rosario-Lebrón, If These Blackboards Court Talk: The Crit Classroom, a Battlefield, + 9(2) Charleston L. Rev. 305 (2015).16. See generally, e.g., Richard Delgado & Jean Stefancic, Why Do We Tell the Same Stories: Law Reform, Critical Librarianship, and the Triple Helix Dilemma, 42 Stan. L. Rev. 207 (1989); Richard Delgado & Jean Stefancic, Why Do We Ask the Same Questions – The Triple Helix Dilemma Revisited, 99 L. Libr. J. 307 (2007); Yasmin Sokkar Harker, Critical Legal Information Literacy: Legal Information as a Social Construct, in Information Literacy and Social Justice: Radical Professional Praxis 205 (Lua Gregory and Shana Higgins, ed., 2013); Nicholas Stump, Following New Lights: Critical Legal Research Strategies as a Spark for Law Reform in Appalachia, 23 Am. U. J. Gen. & Soc. Pol’y & L. 572 (2015); Nicholas Mignanelli, Critical Legal Research: Who Needs It?, 112 L. Libr. J. 327 (2020); Robert C. Bering, Legal Research and Legal Concepts: Where Form Molds Substance, 75 Calif. L. Rev. 15 (1987); Steven M. Barkan, Deconstructing Legal Research: A Law Librarian’s Commentary on Critical Legal Studies, 79 L. Libr. J. 617 (1987); Jill Anne Farmer, A Poststructuralist Analysis of the Legal Research Process, 85 Law Lib. J. 391 (1993); Richard A. Danner, Legal Information and the Development of American Law: Writings on the Form and Structure of the Published Law, 99 L Libr. J. 193 (2007).17. Mignanelli, supra note 17 at 327-8.18. Id. at 343.19. Julie Krishnaswami, Critical Information Theory: A New Foundation for Teaching Regulatory Research in Boulder Statements on Legal Research Education: The Intersection of Intellectual and Practical Skills 175 (Susan Nevelow Mart ed., 2014).20. Nicholas Mignanelli, Prophets for an Algorithmic Age, 101 B.U. L. Rev. Online 41 (2021).21. Richard Delgado & Jean Stefancic, Rodrigo’s Reappraisal, 101 B.U. L. Rev. Online 48 (2021).22. Lisa von Wiegen & Shannon M. Oltmann, A Different Democratic Divide: How the Current U.S. Online Records System Exacerbates Inequality, 112 L. Libr. J. 257 (2020).23. Priya Baskaran, Searching for Justice: Incorporating Critical Legal Research into Clinic Seminar, 90 Clinical Law R. (forthcoming), https://doi.org/10.2139/ssrn.4471065.24. https://law.duke.edu/academics/course/38025. A small section of the course is open to upper-class JD and LLM students in the Fall Semester but has not been adjusted yet in the same ways the Spring Semester section has.26. The first-year Legal Analysis, Research, and Writing course at Duke Law School is taken in both the Fall and Spring terms. In the Fall, the research instruction covers secondary sources and case law research. In the Spring, research topics include statutory and regulatory research, legislative history, and a prepare-to-practice joint class with the writing instructor.27. See Michael Hunter Schwartz, Sophie M. Sparrow & Gerald F. Hess, Teaching Law By Design (2d ed. 2016).28. Special thanks to the law librarians at the Kathrine R. Everett Law Library at the UNC School of Law, including Nicole Downing, Clinical Associate Professor of Law and Assistant Director for Public Services, Ellie Campbell, Associate Clinical Professor of Law and Reference Librarian, and Kerri-Ann Rowe Clinical Associate Professor of Law and Reference Librarian, for their help in preparation for the class discussions.29. Mignanelli, supra note 17 at 343 (2020) (“law librarians have an obligation to interrogate claims of objectivity and neutrality, to promote transparency, and to do their part to ensure that our legal system becomes more, not less equitable.”).30. Mignanelli, supra note 17 at 343.31. Carole Edelsky & Meredith Cherland, A Critical Issue in Critical Literacy: The “Popularity Effect” in The Practical Critical Educator: Critical Inquiry and Education Practice 17, 30 (Karyn. Cooper & Robert .E. White eds., 2006).32. Mitzi Lewison, Amy Seely Flint & Katie Van Sluys, Taking on Critical Literacy: The Journey of Newcomers and Novices, 79(5) Language Arts 382 (2002) (defining critical literacy along four dimensions, including “taking action and promoting social justice”); Rebecca Powell, Susan Chambers Cantrell & Sandra Adams, Saving Black Mountain: The Promise of Critical Literacy in a Multicultural Democracy, 54(8) The Reading Teacher, 772, 773 (2001) (explaining critical literacy assumes that literary instruction can empower and lead to “transformative action”); Laraine Wallowtiz, Conclusion, in Critical Literacy as Resistance: Teaching for Social Justice Across the Secondary Curriculum 225, 228 (“a crucial component for developing [a] critical perspective on literacy is social action. … Students can apply their understanding of critical literacy to their lives via small and large acts of resistance”).33. Susan Sandretto with Scott Klenner, Planting Seeds: Embedding Critical Literacy into Your Classroom Programme 215 (2006).34. Id. at 216.35. Id. (emphasis added).36. Kevin Rothenberg, Prefiltering vs. Postfiltering: Which Is the Best Method for Searching, 23 AALL Spectrum 34 (2008).37. Susan Nevelow Mart, Every Algorithm Has a POV, 22 AALL Spectrum 40 (2017).38. Erin Kenneally, How to Throw the Race to the Bottom: Revisiting Signals for Ethical and Legal Research Using Online Data, 45:1 SIGCAS Comput. & Soc., 4–10 (Feb. 2015).39. Daniel Faggella, AI in Law and Legal Practice—A Comprehensive View of 35 Current Applications (Sept. 7, 2021), https://emerj.com/ai-sector-overviews/ai-in-law-legal-practice-current-applications/.40. Megan Donaldson, The Survival of the Secret Treaty: Publicity, Secrecy, and Legality in the International Order, 111 Am. J. Int’l L. 575–627 (2017).41. As discussed in Megan Donaldson’s article, “The Survival of the Secret Treaty: Publicity, Secrecy, and Legality in the International Order,” secret treaties are treaties that are published or registered according to international norms. Donaldson, supra note 41.42. Publication 901 U.S. Tax Treaties, I.R.S. Pub. 901 (Sept. 2006).43. Donaldson supra note 41 at 623.44. Steven M. Harris, Manufacturing International Law: Pre-printed Treaties in the ‘Scramble for Africa,’ 23 J. Hist. of Int’l L. 439–65 (2021).45. British Columbia, First Nations Negotiations, www2.gov.bc.ca/gov/content/environment/natural-resource-stewardship/consulting-with-first-nations/first-nations-negotiations.46. See, e.g., Thomas Kwasi Tieku, The African Union: Successes and Failures (March 2019) DOI: 10.1093/acrefore/9780190228637.013.703 (noting the success of the African Union in addressing the needs of the african political class, and its failure in making a significant difference in the lives of many ordinary Africans); George B. N. Ayittey, Why Africa Must Dissolve the Failing African Union, African Liberty (Aug. 12, 2019), www.africanliberty.org/2019/08/12/why-africa-must-dissolve-the-african-union/ (noting perceived failures of the African Union and arguing for the dismantling of the AU, and the formation of a confederacy instead); Netsanet Belay, How the AU Failed Africans, from Sudan to DRC and Zimbabwe, Al jazeera (Feb. 9, 2019), www.aljazeera.com/opinions/2019/2/9/how-the-au-failed-africans-from-sudan-to-drc-and-zimbabwe/ (detailing the AU’s failure to respond to human rights violations in Sudan, Zimbabwe, and the Democratic Republic of Congo, calling for radical changes to how the AU responds to human-rights violations); Tom Kabau, The Responsibility to Protect and the Role of Regional Organizations: An Appraisal of the African Union’s Interventions, 4:1 Goettingen J. Int’l L., 49–92 (2012) (noting the failure of the African Union to institutionalize the concept of responsible sovereignty within the AU’s legal framework and processes resulting in the failure to forcefully intervene and protect civilians); Kambanda Vedaste, Who Is to Blame for the African Union’s Failure to Deliver?, New African, no. 512 (Dec. 2011) (discussing the AU leader’s failure to reach consensus on what is in the interest of Africa and the resulting consequences).47. Andrés Sarmiento Lamus and Rodrigo González Quintero, The Practice of Appending Declarations at International Courts and Tribunals, 20 L. and Prac. Int’l Cts. and Trib. 289–317 (2021).48. Nora Strappert, A New Influence of Legal Scholars? The Use of Academic Writings at International Criminal Courts and Tribunals, 31(4) Leiden J. Int’l L. 963, 963–80 (2018).49. The “invisible college,” as coined by Oscar Schachter, refers to the interpretive community of international lawyers that generate and reproduce epistemic knowledge. See Oscar Schachter, Invisible College of International Lawyers, 72 NW. U. L. Rev. 217 (1977–1978). This concept has been expanded to include not just lawyers, but also includes judges, government lawyers, diplomats, academics, and staff at civil-society organizations. See Ian Johnstone, The Power of Interpretive Communities, in Power in Global Governance 185 (Michael Barnett & Raymond Duval, eds., 2005).50. Joost Pauwelyn & Rebecca J. Hamilton, Exit from International Tribunals, 9 J. Int’l Disp. Settlement 679, 679–90 (2018).51. Jay Butler, The Corporate Keepers of International Law, 114 (2) Am. J. Int’l L. 189, 189–220 (2020).52. One example discussed was Airbnb’s decision to remove all listings in the disputed Occupied Palestinian Territory, which helped to enforce the international law declaring the settlements illegal, despite the United States’ encouragement for Airbnb and other business to operate there. Id. at 189–90.53. Grace Lo, Biases in Law Library Subject Headings, 101 B.U. L. Rev. Online 26, 26–37 (2021).54. One example discussed from the reading included the Library of Congress Subject Headings of “Kings and rulers” and the separate subject heading “Queens.” The inclusion of the “and rulers” after Kings, yet the exclusion of Queens from the section, demonstrates the built-in patriarchal bias that makes locating information on women rulers more difficult by excluding women monarchs from the gender neutral term “rulers.” Id. at 28.55. Lena Salaymeh & Ralf Michaels, Decolonial Comparative Law: A Conceptual Beginning, 86:1 Rabel J. Compar. and Int’l Priv. L. (RabelsZ) 166, 166–88 (2022).56. Aleš Završnik, Algorithmic Justice: Algorithms and Big Data in Criminal Justice Settings, 18(5) Eur. J. Criminology 623, 623–42 (2019).57. Fobazi Ettarh, Vocational Awe and Librarianship: The Lies We Tell Ourselves, In The Library With The Lead Pipe, (Jan. 10, 2018), www.inthelibrarywiththeleadpipe.org/2018/vocational-awe/.58. Butler, supra note 52.59. Ettarh, supra note 58.60. Another contributing factor to the depth of the discussion could be the limited time of 10–15 minutes.61. Sandretto with Klenner, supra note 34.62. See Martin Nystrand with Adam Gamoran, Robert Kachur, & Catherine Prendergast, Opening Dialogue: Understanding the Dynamics of Language and Learning 94–96 (Teachers College Press, 1997).63. Julie Nelson Christoph & Martin Nystrand, Taking Risks, Negotiating Relationships: One Teacher’s Transition toward a Dialogic Classroom, 36(2) Rsch. Teaching Eng. 249–86 (2001).64. See discussion supra Section IV. F.65. Ettarh, supra note 58.66. Harris, supra note 45.