(Cross-posted at PrawfsBlawg)
I remember being a law student and taking the class Women and the Law with the terrific Susan Grover when a topic came up that would (thankfully) inform the way that I draft my law school exams when I became a professor. The topic: Biased exams. One student brought up a Torts exam she had taken her first year that left her perplexed. The exam was in the fall of 2000, and it involved an XFL fact pattern with, if memory serves me, running back George W. Bush assaulting linebacker Al Gore either as part of a football play or immediately after it had concluded. The reason for the student’s confusion was that she didn’t follow football and therefore had difficulty answering this torts in sports fact pattern because she couldn’t figure out what role the running back plays on the football field, making it tough to analyze how out-of-the-ordinary W’s conduct would have been.
See generally Patricia J. Williams, The Alchemy of Race and Rights (1991). In her book, Williams describes a number of race- and gender-biased exams created by White male professors. Some included:
–a tax exam that asks students to calculate the tax implications for Kunta Kinte’s master when the slavecatchers cut off his foot.
–a securities-regulation exam in which the professor muses about whether white-collar defendants should go to jail, since”unlike ghetto kids”they are not equipped to fare in that environment.
–a constitutional-law exam in which students are given the lengthy text of a hate-filled polemic entitled”How To Be a Jew-N*****”and then told to use the first amendment to defend it.
–a description of the”typical criminal”as a “a young Black male with an I.Q. of 87 who is one of eight children and has always lived on welfare and who spends his time hanging out in pool halls with his best friend Slick.”
–numerous criminal-law exams whose questions feature exclusively Black or Hispanic or Asian criminals and exclusively white victims.
–many questions depicting gay men as the exclusive spreaders of AIDS, asking students to find the elements of murder.
–many, many questions in which women are beaten, raped, and killed in descriptions pornographically detailed (in contrast to streamlined questions, by the same professors, that do not involve female victims) ***
The problem with such questions, as Williams argues, is that they: require Blacks, women who have been raped, gays and lesbians, to not just re-experience their oppression, but to write against their personal knowledge. They actually require the assumption of an “impersonal” (but racist/sexist/homophobic) mentality in order to do well in the grading process….[I]t requires students to suppress any sense of social conscience. It requires them to devalue their own and others’ humanity for the sake of a grade.…In essence, such questions disproportionately require that women and minorities move outside of their experience to perform well on exams.