How To Teach Law To Millennials

Printed from: https://newbostonpost.com/2018/03/22/how-to-teach-discrimination-law-to-millennials/

I teach in a law school. I have previously recounted some of the provocative measures that I now find it necessary to use in the classroom. To prepare my students to receive an education in law I must first give them remedial instruction in critical and logical reasoning. I find that I must pull weeds out of their minds before anything fruitful can take root there.

One of the most pernicious weeds is the notion that discrimination is inherently evil and unjust. This weed has deep roots in their understanding and character. In fact, they seem to believe that the only person worse than someone who discriminates is someone who judges.

This weed damages not only their minds but also their souls. They have come to think that the two most unjust actions a person can commit are exercising discernment and exercising judgment. In other words, they have been inoculated against important intellectual virtues. The dogmas of non-discernment and non-judgmentalism crowd out potential growth that might enable them to reason well. As their teacher, I consider myself obligated to attack those weeds.

I also have a more pragmatic reason to challenge their beliefs. It is very difficult to teach non-discrimination laws governing housing and public accommodations to students who think that all discrimination is unjust. Students who think this way cannot see why the law prohibits only discriminating for certain reasons, and why it permits and even facilitates discrimination for other reasons. Our nondiscrimination laws are grounded in common law norms. The common law, and the public accommodations statutes which codify the common law rules, distinguishes between reasons that do not justify exclusion, such as race, and reasons that justify exclusion, such as a desire not to communicate a message that the owner understands to be false. Even political and ideological reasons can lawfully be used to justify exclusion from private property. I cannot teach them this law as long as they are conditioned not to see those distinctions.

A couple of years ago I developed a line of questioning to pull out the weeds.

I first ask a student, “Do you discriminate?”

Invariably, whether the student is ideologically left or right, whether at the top of the class or the bottom, the answer is always emphatic:  “No.”

My next question is:  “Never?”

The student almost always replies:  “Well, I try not to.”

This is revealing. It shows that the student views non-discrimination as a moral ideal, and acknowledges personal failure to live up to the ideal, much the same way a religious person might confess her sins.

Now I grab the weed by the root and pull. I pose to the student something like the following hypothetical:

Suppose that you are awakened at 3 o’clock in the morning by a frantic knock at the door. You open the door to find a frightened nun and, right behind her, a man wearing a hockey mask and wielding a machete. Do you let them both into the house?

This is of course an extreme hypothetical. But I have found it effective. The student immediately understands that at least one act of discrimination might be reasonable — both in the practical sense of keeping a probable killer out of one’s house (while saving an apparent innocent victim), and in the theoretical sense that excluding an apparent psycho is just and proper given the facts.

This semester everything was going according to plan when the student I happened to call on thwarted me. She said that she would let in the hockey-mask-wearing, machete-wielding psychopath.

I was taken aback. I thought she was being cheeky, or perhaps overdoing bravado.

“Really?” I asked.

She replied, without missing a beat:  “Yes. Then I would get my gun and shoot him.”

After that, we had a very fruitful discussion about the Fair Housing Act.

My student’s answer might be less surprising if I were to mention one additional fact:

I teach in Alabama.

 

Adam J. MacLeod is an associate professor of law at Jones School of Law at Faulkner University.

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