Symposium on Systemic Racism and Sexism in Legal Academia: Beyond Diversity and Inclusion – How Global Human Rights Standards Might Inform Racial Justice Initiatives in Legal Education

[Mary Hansel is an international human rights attorney and the former Acting Director of the International Justice Clinic at University of California, Irvine School of Law (UCI Law). Ashleigh Hayden is a recent graduate of UCI Law. This post benefitted from the input of numerous UCI Law students and faculty.]

Introduction

Law schools across the globe have declared their commitment to confronting and addressing racial injustice, particularly anti-Blackness. Efforts to make good on these declarations, especially in the U.S., tend to consist of “diversity and inclusion” (sometimes “diversity, equity and inclusion”) initiatives. While such initiatives can be helpful in expanding awareness and improving representation, advocates such as Nani Jensen Reventlow emphasize that eradicating inequality necessitates transforming power structures, rather than merely “including” members of marginalized communities within existing systems. As Angela Davis explained, “[d]iversity without structural transformation simply brings those who were previously excluded into a system as racist, as misogynist, as it was before.” International human rights standards offer guidance for pursuing structural reform, and law schools might consider these standards when devising and implementing anti-racist strategies. Such standards have acute resonance for public law schools to which human rights instruments directly apply.

Adopting a systemic approach to law school reform is particularly critical given the interlinkages among legal education and downstream legal institutions. The entrenched biases of many legal systems, including criminal justice systems, find roots in the academies that incubate and train prospective lawyers, judges and policymakers. Indeed, racial injustice within law schools reverberates throughout the legal profession, as well as judicial and legislative bodies. These reverberations extend to the international legal system, which is underpinned and shaped by racism, as Christopher Gevers, S. Priya Morley and other scholars have described. Despite the racial injustice that pervades international human rights standards, we remain optimistic about their emancipatory potential and thus still recommend engagement the human rights framework.

The following provides a (non-exhaustive) overview of how human rights standards might inform structural change within law schools. This post details how these standards could guide reforms in select areas: (1) creating anti-racist curricula and learning environments, (2) navigating the interplay between academic freedom and concerns about hate speech and (3) preventing and addressing discriminatory actions by campus police. Due to spatial constraints, the post focuses on global human rights standards, notwithstanding the myriad regional frameworks relevant to this topic. Pursuant to established human rights doctrine, the standards discussed below operate through an intersectional lens, sensitive to how intersecting identities (including gender, disability, LGBTQIA, migration and socioeconomic statuses) can compound the impacts of racial injustice.

Promoting Anti-Racist Curricula and Learning Environments

International human rights standards offer robust guidance for cultivating anti-racist pedagogies and classroom settings. The International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) sets forth a blanket prohibition on racial discrimination. While eliminating racial discrimination is primordial, we agree with Anna Spain Bradley that it is far from sufficient in the struggle against racism, more of a starting point than a destination. Under ICERD, racial discrimination includes “any distinction, exclusion, restriction or preference” with “the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms.” (ICERD, art. 1.) Notably, this definition is broader than that of many domestic prohibitions, which often insist on a showing of intent.

A panoply of global standards delineate the human rights landscape regarding racial justice in legal education.The International Covenant on Economic, Social and Cultural Rights (ICESCR) sets forth the general right to education, providing that “[h]igher education shall be made equally accessible to all.” (ICESCR, art. 13.) The Committee on Economic, Social and Cultural Rights (CESCR), which oversees and interprets ICESCR, states that this right must be applied without direct or indirect discrimination and with an eye to both formal and substantive equality. (CESCR GC 20 ¶¶ 8, 10.) ICERD emphasizes the right to education as integral to the elimination of racial discrimination, urging the dissemination of information to counter prejudices and promote tolerance among racialized groups. (ICERD, arts. 5, 7.)

Moreover, the Durban Declaration and Programme of Action (DDPA), adopted by the 2001 World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance, lays out concrete measures for promoting racial justice within educational institutions. These measures include: developing and strengthening anti-racist trainings, particularly for educators; incorporating human rights standards into curricula, highlighting their role as a means to combat racial injustice; rethinking curricula to ensure inclusion of the full and accurate histories and contributions of Africans and people of African descent (in contrast to what Bennett Capers has referred to as “white letter law”); eliminating from course materials any elements that might reinforce negative stereotypes or otherwise perpetuate discriminatory attitudes; increasing the recruitment, retention and advancement of educators belonging to racialized groups under-represented in the legal academy; increasing the number of students belonging to racialized groups under-represented in the legal profession; facilitating equitable access to remote learning and attendant technologies; and regularly collecting and analyzing intersectional data to evaluate the efficacy of racial justice measures. (DDPA, at 23, 37-39, 44-46; see also CERD GR 34 ¶¶ 61-66; A/HRC/44/39 ¶ 80.)

Applying these human rights standards could assist law schools in creating anti-racist educational environments. Educators have already started to explore some of the measures set forth by the DDPA. For example, Adelle Blackett has designed courses on Critical Race Theory and Slavery and the Law, which she has described as “part of this sensing of an emergent, critical pedagogical posture within transsystemia, to sustain resistance to (re)colonizing an approach that promises freedom.” Also, Mohsen al Attar, drawing upon Kyoko Kishomoto’s work, has articulated three goals for anti-racist pedagogies: to raise awareness of racism and its relational social positioning, to encourage critical and purposeful self-reflection and to galvanize institutional and societal transformation. A human rights-based approach may support these aims by promoting a law school culture of racial justice and, in turn, systemic societal change.

Combatting Hate Speech While Preserving Academic Freedom

Today, many law schools are grappling with the purported tension between academic freedom and hate speech. CESCR explains that academic freedom is a prerequisite for the right to education, recognizing that faculty and students in higher education are “especially vulnerable to political and other pressures which undermine academic freedom.” (CESCR GC 13 ¶ 38.) However, CESCR also stresses that this freedom “carries with it obligations, such as the duty to respect the academic freedom of others, to ensure the fair discussion of contrary views, and to treat all without discrimination on any of the prohibited grounds.” (CESCR GC 13 ¶ 39.)

In that vein, international human rights standards make clear that freedom of expression — the cornerstone of academic freedom — is subject to important restrictions, particularly those in service of racial justice. While the right to hold an opinion is absolute under international law, freedom of expression may be curtailed pursuant to a four-pronged, conjunctive test set forth in the International Covenant on Civil and Political Rights (ICCPR): legality, legitimacy, necessity and proportionality and non-discrimination. (ICCPR, arts. 2, 19; see also A/75/261 ¶ 24.) The legality prong requires any restriction to be stated in publicly available policies that are not unduly vague or overbroad. The legitimacy prong stipulates that restrictions should serve one of several enumerated interests, which include “the rights of others,” “public order” and “public morals.” Under the third prong, restrictions must be necessary to protect the enumerated interest and proportionate to the threat to that interest. Last, restrictions on expression cannot be applied in a discriminatory manner. (HRC GC 34 ¶¶ 20-35.) As the Committee on the Elimination of Racial Discrimination (CERD) — which supervises ICERD — highlights: “[f]reedom of expression should not aim at the destruction of the rights and freedoms of others, including the right to equality and non-discrimination.” (CERD GR 35 ¶ 26.)

Meanwhile, both ICCPR and ICERD condemn expression that incites racial discrimination. ICCPR prohibits any advocacy of racial hatred that “constitutes incitement to discrimination, hostility or violence,” while ICERD calls for the “eradicat[ion] of all incitement to, or acts of” racial discrimination. (ICCPR, art. 20; ICERD, art. 4.) Developed by international legal experts in 2011, the Rabat Plan of Action identifies six factors for determining the severity of such expression: the relevant social and political context; the status of the speaker, particularly vis-a-vis the audience; the intent of the speaker; the content and form of the expression; the extent of its dissemination; and the likelihood and imminence of resultant harmful action. (A/HRC/22/17/Add.4, Appendix.)

These standards offer a human rights framework for law schools seeking to fight hate speech while securing academic freedom. In applying such standards, law schools should resist and seek to counter false dichotomies pitting freedom of expression against racial justice. As the Special Rapporteur on freedom of opinion and expression observed, the issue of hate speech “seems to demand a reconciliation” of two compelling societal values: the democratic ideal of open debate and the obligation to prevent attacks on marginalized communities. However, these vital interests are “mutually reinforcing,” as human rights standards seek to promote both the expression and the safety of marginalized communities. (A/74/486 ¶ 4.) Amplifying the voices of racialised groups would thus enhance the implementation of these standards and vice-versa.

Addressing Racial Profiling by Campus Security

Law schools also face the discriminatory use of force by campus security. Longstanding human rights standards, including the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CATCIDT), indicate that institutions with any type of police presence should take measures to safeguard the dignity of human life. (CATCIDT, arts. 1-2, 10, 16.) The Committee against Torture, which oversees CATCIDT, states that “[t]he protection of certain minority or marginalized individuals or populations especially at risk of torture is a part of the obligation to prevent torture or ill-treatment.” (CAT GC 2 ¶ 21.) Meanwhile, the DDPA urges the creation, implementation and enforcement of policies and programs to eliminate racial profiling and pursue accountability for discriminatory police misconduct. (DDPA, at 33.)

In recent years, the surge of public outrage over discriminatory police violence has galvanized the drafting of new human rights guidance. In 2020, CERD issued commentary acknowledging the impact of discriminatory police practices, including racial profiling, on the right to education. (CERD GR 36 ¶ 29.) CERD’s commentary lays out a series of granular measures for combatting such practices. These measures include: strengthening policies that prohibit racial profiling and ensure equal treatment of community members; establishing mandatory training programs to educate police officers on human rights and sensitize them to the impacts of racial profiling; developing recruitment, retention and advancement strategies to promote a diverse work force reflecting the communities served; confirming that public information from the police is unbiased and does not perpetuate racial stereotypes; guarding against the automated processing of data for predicting individual conduct; creating independent oversight mechanisms to receive and investigate complaints of racial profiling; prosecuting perpetrators of racial profiling, while ensuring appropriate compensation for victims and protection from retaliation; testing any algorithmic profiling systems, including facial recognition technologies, for adherence to human rights standards; and collecting, publicizing and assessing disaggregated data related to law enforcement practices. (CERD GR 36 ¶¶ 38, 42, 46, 49, 50-52, 54, 58-59.)

In late 2021, the U.N. High Commissioner for Human Rights issued a report on the discriminatory use of police force, following up and improving upon a 2020 Human Rights Council resolution (the latter critiqued by E. Tendayi Achiume and other scholars as weak and ineffectual). The High Commissioner’s report observes that “[s]ystemic racism and enduring harmful and degrading associations of Blackness with criminality and delinquency…shape interactions of people of African descent with law enforcement officials.” (A/HRC/47/53 ¶ 24.) The report reiterates the measures set forth by CERD and adds several important new ones. For example, the report calls for “reimagin[ing] policing” by implementing community-driven models for collective safety and ensuring respect for freedom of assembly, recognizing the role of peaceful protests in catalyzing positive change. (A/HRC/47/53, Annex.)

Because discriminatory police conduct has been a recent focal point of the international community, law schools might be inclined to address racial profiling by campus security as a discrete, rather than systemic, issue. The High Commissioner’s report, however, underscores that institutions should conceptualize racial profiling “beyond a summation of individualized acts” and employ “rigorous examination . . . to comprehensively address the manifestations, root causes and drivers of systemic racism.” (A/HRC/47/53 ¶ 18.) It explains the importance of “comprehensive ‘whole-of-government’ and ‘whole-of-society’ reforms and responses to dismantle systemic racism, elaborated in comprehensive and adequately resourced national and regional action plans.” (A/HRC/47/53, Annex.) Thus, law schools can use a systemic approach, informed by human rights standards, to combat this scourge.

Conclusion

“Systemic racism needs a systemic response” proclaims the High Commissioner’s report. (A/HRC/47/53 ¶ 19.) International human rights standards offer actionable guidance for confronting racial injustice within law schools — beyond diversity and inclusion initiatives. As detailed above, these standards may inform efforts to cultivate anti-racist pedagogies and classroom environments, address hate speech while preserving academic freedom and eliminate discriminatory conduct by campus police.

Moreover, human rights standards compel law schools to provide redress for instances and patterns of racial injustice. Such redress could include monetary payments, psychological care, public apologies, administrative actions and campus policy reforms. Additionally, law schools may consider reparations for their respective historical involvement in slavery and colonial oppression, recognizing that “behind contemporary forms of racism . . . lies the failure to acknowledge the responsibilities for enslavement, the transatlantic trade in enslaved Africans and colonialism, and to comprehensively repair the harms.” (A/HRC/47/53, Annex; see also A/74/321 ¶ 8.) By invoking and applying international human rights standards, law schools can adopt a structural approach to racial injustice, thereby laying the foundation for improving racial justice across legal systems.