Inherently Subversive Pedagogy

Posted on Categories Constitutional Law, Education & Law, Legal Education, Legal Writing, Public, Race & Law

In 2010 the Arizona legislature created a law designed to deter the teaching of a Mexican American Studies course in Tucson schools by cutting State funding to districts with courses that, among other things, “promote resentment toward a race or class of people.”  After a finding by the state court in 2011 and under the threat of a $15 million fine, the Tucson district was forced to stop utilizing a course that was available to all students, was effectively closing the achievement gap, and was successful in helping Latino students attend college.  One aspect of enforcement that the district decided on was banning the use of many books that were a part of the Mexican American Studies program from schools.

I was introduced to the Tucson curriculum issue in Professor Mazzie’s first semester Legal Analysis, Research, and Writing 1 class last fall.  Our assignment was to write a brief memo on whether the Tucson course was in violation of A.R.S. § 15-112.  The constitutionality of the Arizona law itself has since been called into question under the purview of a federally appointed special master who is overseeing the Tucson School District’s mandated desegregation.  It was satisfying to see, earlier this month, the U.S. Court of Appeals for the Ninth Circuit agree with my position in Professor Mazzie’s class that the curriculum was not necessarily a per se violation of A.R.S. § 15-112 anyway.

Before the Ninth Circuit ruling, Paulo Freire’s Pedagogy of the Oppressed (Freire is pictured above) was one of the textbooks ordered removed from all classrooms in Tucson.  In it, amidst some dialectic jargon, Freire provides an effective critique of the predominant form of education used in the U.S., calling it the “banking” method whereby students are conceived as receptacles for the knowledge with which educators fill them.  “Banking education resists dialogue . . . treats students as objects of assistance . . . inhibits creativity . . . .” (83).  “The student records, memorizes, and repeats.” (71). 

The alternative to the banking method is what Freire calls “problem posing,” in the service of helping students develop a critical consciousness.  Problem posing involves the teacher engaged in a dialogue with students, both learning from each other and creatively approaching subjects and problems that surround them in their lives.  Students “develop their power to perceive critically the way they exist in the world with which and in which they find themselves; they come to see the world not as a static reality, but as a reality in process, in transformation.”  (Id.)

Freire’s writings do indeed advocate for the development of a “praxis,” or curiosity that leads to reflection and, finally, to action addressing the problems the student observes in the world around them.  As American writer and educator J. Mitchell Morse observed: “To the extent that the establishment depends on the inarticulacy of the governed, good writing is inherently subversive.”  (The Irrelevant English Teacher, pg. vii, 1972.)  The same may be said of effective education.  Developing thoughtful, articulate and engaged citizens seems to be a worthy end for public education to serve, but Arizona lawmakers are perhaps more fearful of the prospect.

It is less clear why other books were bannedThe House On Mango Street, a collection of short vignettes by Mexican–American writer Sandras Cisneros that convey memories of growing up in Chicago, seems to me an incredibly innocuous book.  Perhaps the district, under the scrutiny of the new law, was concerned that students not be exposed to the humanity of minority or disenfranchised groups.  “Dort wo man Bücher verbrennt, verbrennt man auch am Ende Menschen.”  (Heinrich Heine, Almansor, 1823.)

Returning to my Legal Analysis, Writing, and Research class, these concepts begged for application to the law school experience.  Despite the improvements brought by Christopher Columbus Langdell, the “banking” style is still the principal form of legal instruction.  Often, it seems, the paper deposits are made by the truckload.  This may at first glance seem a necessity since practicing the law today involves digesting and understanding a substantial amount of ideas and vernacular.  Freire’s response is simple: “Knowledge emerges only through invention and re-invention, through the restless, impatient, continuing, hopeful inquiry human beings pursue in the world, with the world, and with each other.”  (72).  That is, education does not take place by way of stifling students.

I came upon a more provocative characterization of law school pedagogy in the novel In the Shadow of the Law by Kermit Roosevelt III.  The book is ostensibly a D.C. thriller but mostly explores the experiences of a handful of sophomoric attorneys as their understanding of the profession expands.  A poignant passage submits:

This was the service the law schools gave, witting or no, that they taught their students to follow authority and to believe in a legal reasoning that supplanted their intuitions about justice.  To use that reasoning in the service of any cause, to argue positions they despised, which had the inevitable result of cutting them loose from the positions they loved.  Act and it shall produce unbelief.  The firms provided the training; the firms taught the law.  Law school just made students ready to accept it. 


The more general movement toward increasingly standardized education implicates more than just assimilation.  To my mind it is closer to suicide.  The question can be posed:  Is it more destructive to encourage young citizens to engage in critical discourse or to deter them from doing so?  The answer will no doubt say something about our disposition toward the status quo and the propriety of education.  Is the analysis any different when it comes to the subject of teaching law?  In educating young advocates of justice I wonder if we prefer to produce “more of the same” rather than run the risk of inciting uncomfortably progressive thought?  Setting aside preference, in today’s increasingly complex, interdependent and, simultaneously, myopic world, what does civilization actually need?


Author: Joseph Riepenhoff

Joe Riepenhoff graduated from Marquette University Law School in 2014. While at Marquette, he was a student advisory board member for the Marquette Volunteer Legal Clinic, an intern for the Waukesha County Circuit Court criminal division judges, and research assistant for Prof. Daniel Blinka. Since graduating he has worked as a staff attorney for the Wisconsin State Public Defender Office, a conflicts analysts at Foley and Lardner, and is now a staff attorney at the Legal Aid Society of Milwaukee.

4 thoughts on “Inherently Subversive Pedagogy”

  1. Interesting post. I feel compelled to offer a few critiques.

    First, I would suggest that an educational model where teachers and students spend their days searching for a “reality in process” by “learning from each other” is actually a fairly apt description of the model that has been in place in most American public elementary schools and high schools for the past several decades. Even if this characterization overstates things slightly, I think most would agree that American education in recent years and decades hasn’t exactly been “hooked on phonics.” The result, it seems, has been a generation or two of American students with great self-esteem who can’t read, write, do basic math, or find Wisconsin on a United States map. Meanwhile, students from other countries with slightly less concern for the “thoughtfulness” of their students and slightly more concern that they be able to read, write, and do math, continue to leave tread marks on the backs of their American counterparts.

    Second, Mr. Riepenhoff paints a bleak picture of a world where standardized law school pedagogy and Socratic method devours the souls of helpless, previously enlightened 1Ls, turning them into mindless litigation cyborgs acting at the beck and call of their all-powerful law firm masters. I don’t see the situation as being quite so dire. I would reiterate the points above as pertaining in large part to law school, and I would add that a law student’s moral, philosophical, and legal compass is his or hers to do with as he or she pleases. If a young law firm associate wakes up one day and realizes that his work goes against everything he once stood for, it may be convenient and appealing to blame law school for turning him into a hired gun. That convenience would not translate to truth.

    Third, I see a connection between this piece and Professor Boyden’s post from a few weeks ago entitled “Eric Hobsbawm and the Law on the Ground.” Near the end of his piece, Professor Boyden notes a trend whereby “the content of the law and perceptions of it appear to be pulling apart for some reason.” I would suggest that one reason for this phenomenon – among many, no doubt – is the hyper multi-culturalism that has become so deeply embedded in American education at all levels. This hyper multi-culturalism has, I would suggest, eroded the “shared history” of Americans and the perception of the fairness and legitimacy of the American government in some circles to the point that large portions of certain segments of the population see themselves first and primarily as members of a particular insular group and only tangentially as Americans. This idea has been enforced by the moral relativism that has overtaken American education whereby it is no better, and may in fact be worse, to be American (or Christian, to use an example that may hit a little closer to home at a Jesuit university) than it is to be a self-defined member of some other group. Small wonder, then, that laws whose content may be quite innocuous are perceived in some segments of society as unjust.

    Which leads me to the Arizona law mentioned by Mr. Riepenhoff at the outset of his post, about which I would say this. I do not claim to be an expert on the law in question. It may well be that it went too far. On the other hand, it is clearly easier (and far more politically correct, I think) to dismiss this law as a misguided attempt by Anglo-centric legislators to stifle the aims of multi-culturalism – aims presumably beyond reproach – than it is to ask whether the effect, if not the purpose, of the class in question was to promote the “resentment and ethnic solidarity” that the law aimed to curtail. Multi-culturalism has contributed much to American education and, on balance, has undoubtedly been a positive force in the lives of the students to whom it has been taught. That it has been a net positive does not, however, mean that it does not also have its limits. We should not, like the cyborg-lawyer boogeymen described by Kermit Roosevelt and warned of by Mr. Riepenhoff, be afraid to test those limits.

  2. Mr. Riepenhoff says, “Developing thoughtful, articulate and engaged citizens seems to be a worthy end for public education to serve, but Arizona lawmakers are perhaps more fearful of the prospect” and “Perhaps the district, under the scrutiny of the new law, was concerned that students not be exposed to the humanity of minority or disenfranchised groups”. Perhaps the law faculty is in such an ideological cocoon that for it “critical thinking” means critical in the sense of attempting to discredit those who hold other views. That such criticism is accompanied by a “perhaps” (or with saying such views “sadden” them) makes no real difference. Given the time and money invested and that their future livelihoods are at stake, law students might well consider censoring themselves under these conditions.

  3. This is a very interesting post. To the extent that students leave law school trained “to follow authority and to believe in a legal reasoning that supplanted their intuitions about justice,” it seems to me that the culprit is not the Socratic Method of instruction but the embrace of the values of the adversary system. The idea that lawyers are to zealously represent their clients, regardless of how they feel about their client’s cause, steers lawyers away from real-world problem solving.

  4. The “banking method” that Paulo Freire critiques takes on a particular character in mainstream legal education. Many want the instructors to provide legal rules for their bank accounts, and instructors are often only too happy to comply, be it through lectures or through soft socratic dialogue. A rule-bound jurisprudence takes hold among students and faculty alike, but it is problematic. The rules are too numerous to know completely, they change constantly, they vary from jurisdiction to jurisdiction, and they frequently contradict one another. A richer variety of legal education would involve critical engagement with selected rules and the concomitant development of an ability to read, write, and argue within a legal discourse that includes much more than just rules. Law can be a deep and broad humanistic discipline if we allow it to be.

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