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The University of Michigan Law School is defending its affirmative action program before the Supreme Court with this argument: The presence of a critical mass of minority students in the classroom improves the quality of education that every student receives. So how does that work? Here’s what happens in a typical law school class: The professor has the students read a case and describe the legal principle that the particular court used to justify its decision. After a student offers some principle, the professor tweaks the facts, presenting a variation that might incline the student to a result that would be hard to reconcile with the principle she’s already articulated. The student must refine that principle or try to explain why the new facts really don’t change the outcome. The point of the classroom exercise is not to teach students “what the law is.” The point is, as the jargon goes, to teach students to think like lawyers. INTUITION AT WORK This teaching technique works at the moment when the student reconsiders the principle in light of the new facts. The student has an intuition about the right result in the new case, tests that intuition against the principle she’s stated, and refines the principle. What drives the process is the student’s intuition. Of course, people have different intuitions about different problems. They disagree about which facts matter and about the proper legal principle to be used. It takes a skillful teacher to come up with enough variations to ensure that — whatever the students’ initial intuitions — they’ll all end up thinking like lawyers by testing their intuitions against the principles they and their fellow students see in the case. And here’s where the idea of diversity and a critical mass comes in. The intuitions that students have — about what matters and what the right outcome is — arise from their own personal experiences and backgrounds. The more variety there is in experience and background, the more material a teacher has to work with in helping all the students in the class learn how to think like lawyers. But because no one wants to think he’s just a crank with peculiar views, there have to be enough people in the classroom with similar intuitions about a new problem for any one student to be comfortable in offering his argument. IN OTHER SHOES Diversity may be fine, but, critics of affirmative action ask, what’s so special about racial diversity? The answer is that racial experience, our own and that of our families, friends, and relations, is uniquely critical in teaching Americans about justice and power and how the world works and what motivates people. The point is simple in some classes. Consider the notorious “breathing while black” situation: There’s a crime in a small college town, and the victim’s only description is that the assailant was a young black man. The police stop every young black man in town to ask where he was when the crime was committed. Is this good policing or unconstitutional racial stereotyping? Again, you get different answers from different students. Those answers won’t be simple. Students will struggle with the racial implications of this case, and their intuitions may push them in self-contradictory directions. Responding to those pushes takes hard mental work. A student can put himself in someone else’s shoes in his imagination, but the more variations he has to think about, the harder that effort will be — and the better a lawyer he’ll become. Go back to the racial profiling case. A white student might well say that the police should not have stopped every young black man. But what if the victim said that the male assailant had a limp? Having already stretched to figure out what innocent young black men might think about being stopped, a white student might find it hard to see how that insight extends to men who limp. Black students, on the other hand, might find it easier to arrive at a first principle, and thus easier to extend that principle to different situations. Middle Eastern students might see the case yet another way. And all this will generate challenging classroom discussion. It’s also important to note that not every black student will say that stopping young black men is unconstitutional. One of the side benefits of having a significant number of minority students in class is that white students learn not to assume that once you know what a person’s race is, you know what that person thinks about a lot of legal issues. THE WAYS OF THE WORLD The “breathing while black” and other racial profiling cases are simple examples, because the racial characteristic alone, and nothing else, is at the core of the analysis. But the educational benefit of race-related diversity comes up in many other areas of law as well. For instance, studies show that car dealers bargain differently with minority customers than they do with white customers. Because of different experiences in buying and selling cars, students will have different intuitions about how bargaining occurs — and thus about what rules ought to govern contracts. Or consider the question of what a landlord implicitly promises when she rents out an apartment. Different experiences because of race lead to different intuitions and a richer class discussion — not of race, but of the principles we want to have govern rental agreements. A class with no minority students, or only a few, provides teachers with a much narrower, less interesting range of intuitions to challenge with varying legal scenarios. And that makes it much harder to help students learn to think like lawyers. Mark V. Tushnet is the Carmack Waterhouse Professor of Constitutional Law at Georgetown University Law Center and the president of the Association of American Law Schools.

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