[Cross-posted from Daily Journal]
By Kevin R. Johnson
Law school deans often spend their days thinking about rather ordinary matters, such as tuition and finances, admissions, law student job placement, school rankings, and bar passage rates. But with the election of Donald Trump deans experienced something extraordinary that goes to the very core of the mission of law schools.
Over four tumultuous and contentious years, President Donald J. Trump's approach to governing, perhaps unintentionally, reinforced the importance of the fundamental nature of legal education in a democratic society.
As one would expect, the Trump administration's repeated dismissal of the facts and the law had consequences. The nation watched with disbelief as a historic event unfolded at our nation's capitol on Jan. 6, 2021. President Trump's baseless allegation that the 2020 election was stolen, repeated in a speech only minutes before violence broke out, directly led to an armed insurrection by white supremacists in Washington D.C. Some observers characterized the violence as an attempted coup d'état.
But the assault on our legal institutions, legal analyses and the rule of law started long before the insurrection. The election of President Trump had impacts that reverberated through law schools across the United States. The early years of the Trump presidency saw the so-called "Trump Bump” in the number of law school applications. Many law school applicants reported an expressed interest in going to law school so they could challenge the existential threat to civil rights of the Trump administration.
Law faculty responded. At UC Davis, for example, Professor Elizabeth Joh released a podcast “What Trump Can Teach Us About Con Law.” Professor Carlton Larson provided expert opinions to the Washington Post, New York Times and other news organizations about whether the president’s conduct amounted to treason.
In addition, our faculty found teaching immigration law more relevant than ever. Consistent with the president's propensity for making racist statements, the Trump administration put into place a staggering array of immigration policy initiatives, including, but not limited to the infamous policy of separating migrant children from their parents and the "Remain in Mexico" policy, both of which applied almost exclusively to Central America.
Shortly after the announcement of President Trump’s Muslim ban, students and faculty raced to airports to assist noncitizens. Student interest in civil rights and immigration spiked. Our clinics provided vital information to immigrants in the crosshairs of the Trump administration’s immigration policies. Students in real time could see the significance of lawyering skills.
A much more subtle, yet potentially far-reaching, change emerged from the chaos generated by President Trump's approach to policymaking and governing generally.
Consistently playing fast and loose with the facts and law like no other modern president, Trump effectively placed into question the basics of legal analysis — and thus the core of legal education. Careful treatment of the facts and application of the law is the bread-and-butter of a legal education. They were not, however, characteristic of the president's partisan approach to many policy issues. He misrepresented facts and regularly questioned, if not subverted, the law and the courts. Moreover, all too often, the Trump administration allowed racial passions to dominate policymaking.
To illustrate the need for rigorous policy analysis, consider the nation's general reckoning with systemic racial injustice like the controversial issues that dominated the headlines in 2020, with police killings of African-Americans crying out for immediate transformative change.
As seen in his response to the Black Lives Matter movement, Trump regularly denigrated legal requirements and took extraordinary policy steps in violation of the law. Contrary to fundamental understandings that the action was unlawful, the president sent the U.S. military into the streets of Washington D.C. to control crowds protesting in the summer of 2020. Similarly, he took the extraordinary step — bordering on the unlawful if not downright illegal — of deploying Department of Homeland Security officers to disperse protesters in Portland, Oregon and Oakland, California. At frequencies and ways not seen in any other modern presidential administration, Trump pushed policy to the limits of the law and well beyond. In some instances, the Courts including the Supreme Court, intervened. The Court, for example, rejected the Trump administration’s partisan effort to add a citizenship question to the 2020 Census.
As law professors, we must translate policies in action into education. Racism has a lengthy pedigree in U.S. history. Critical race theory has offered invaluable insights on the centrality of race historically to the law as a tool to maintain white supremacy. It has identified how race has indelibly influenced the development of the criminal justice system in the United States and its devastating impacts on communities of color. Racism obviously motivated Jim Crow and institutionalized racial segregation. It rationalized the suppression of Black voters. It led to racist immigration laws.
The powerful insights of CRT shed light on these racist milestones in U.S. history. The contemporary reckoning with systemic racism has fueled efforts by law schools to incorporate racial justice and CRT into the curriculum. Not surprisingly with the Trump administration’s assault on civil rights, students have demanded more CRT and race in the law school curriculum.
Despite the powerful insights of CRT, the Trump administration sought to halt efforts to incorporate the teachings of CRT on racial justice into the workings of the U.S. government. Efforts at teaching the nation's unfortunate racial history were challenged as well. The controversy sparked by Trump directly fueled passionate and divisive efforts to outlaw the teaching of CRT in the public schools.
The Trump administration's approach to public policy issues taught a valuable cautionary lesson: law schools should not abandon the basic emphasis on educating students to rigorously analyze the facts and identify the applicable law to reach a conclusion.
Kevin R. Johnson is dean of UC Davis School of Law and the author of a chapter in “Beyond Imagination? The January 6 Insurrection” (2022), a book by law deans.
