In June, the Australian Senate passed a motion calling for the exclusion of critical race theory from the national curriculum. This followed ongoing developments in the United States, where right wing groups have mobilized to ban critical race theory in schools. The Australian motion, proposed by Pauline Hanson, was supported by the Coalition government.
Although it has been greatly expanded outside of the field since then, the current political discussion ignores that the theory originates in law schools. I’m a PhD student in legal education, and it is my contention that we desperately need critical race theory to be taught in Australian law schools today.
Our schools have continuously sidelined discussions about race and social justice to the fringes of the curriculum. An average law student gets almost no time to question or critique the law they are taught in their degree. Instead, they learn what the law is and how to apply it. They implicitly get taught to accept the law’s authority at face value.
Professor Duncan Kennedy, writing in the 1980s, called this ‘the reproduction of hierarchy’. The aim of law schools, he argued, was to make law students believe that the law is always apolitical. By discouraging moral and political dissent, law schools aim to drive all students – conservative, liberal or radical – towards jobs in private law firms to serve private, rather than public, interests.
The Critical Legal Studies movement, in part founded by Kennedy, aimed to teach law in a radically new way. The law, they argued, was never neutral, always political and always designed to transfer or protect power.
Out of this movement arose the idea of critical race theory. Professor Kimberlé Crenshaw, who helped coin the term, defined it as ‘a way of looking at law’s role in platforming, facilitating, producing, and even insulating racial inequality in our country.’ Instead of seeing the law as ‘objective’ and ‘apolitical,’ critical race theory can show the effect of law in causing and cementing inequality. The law might appear neutral at face value, but when looked at more critically, it is capable of racially prejudicial effects.
The term has been extended by people outside of law schools, by those who are traditionally excluded by such institutions. Feminist theorists, such as Marie Anna Jaimes Guerrero, have used critical race theory to expand discussions of feminism to include ‘land rights, sovereignty and the state’s systematic erasure of the cultural practices of native peoples’. Intersectionality, another term coined by Crenshaw, has also been used in the fields of history, art, politics and philosophy, among others, to show the ways in which different forms of discrimination, on gender, class and race, can compound in institutional settings.
In Australia, this is clear in the incarceration rates of Indigenous Australians. Aboriginal and Torres Strait Islanders make up only 3 per cent of the Australian population yet over 29 per cent of the prison population. In 2019, Aboriginal and Torres Strait Islanders also made up 18 per cent of all deaths in custody. There can be no doubt that our laws impact certain races more than others, and therefore, that our legal system is, at least at times, fundamentally unjust. In other words, Australia’s legal system has racial inequality at its heart.
Andrew Brooks, writing for this publication, outlined that the Senate excluded critical race theory from the national curriculum because of a ‘moral panic’ over ‘cancel culture’ and ‘free speech.’ Right-wing groups typically frame racism as a matter of personal responsibility, rather than systematic inequality. Brooks quoted former Prime Minister John Howard who once said, ‘I don’t think there is underlying racism in Australia.’
This perspective fundamentally misunderstands the history of legal racial injustices. In his ‘Letter from Birmingham Jail’, Martin Luther King Jr wrote that ‘everything Hitler did in Germany was legal,’ referring to the fact that the law’s authority can be used to commit acts of atrocity. Just because something is the law, does not mean that it should never be questioned. Unjust laws have always existed. Consider the laws of slavery in the United States, apartheid in South Africa and our own discriminatory voting laws prior to the 1970s. None of these are matters of individual responsibility.
My own law school experience was one of the most morally hallowing experiences of my life. I watched the best minds of my generation start with a desire to become human rights lawyers and exit with a desire to become corporate lawyers, detached from their moral sensitivities. In my research, I have come across numerous student surveys that corroborated this anecdotal impression.
By de-politicising the legal education curriculum, Australian law schools have created a conversion program. They convert from moral inquisitiveness to ‘neutrality’ and indifference. In 2015, I witnessed this firsthand when Australian citizens Andrew Chan and Myuran Sukumaran were sentenced to death row in Indonesia. While the Australian government tried to plead for clemency for the reformed prisoners, many law students I knew adopted a harsher, authoritarian view. ‘The law is the law,’ they said, and even more blandly, ‘Done the crime, now do the time.’ It never occurred to them to question what the law was, or why it was the way it was. That was something they had never been taught to do.
Law professors typically point to legal clinic placements (only 2 per cent of the student body), or elective classes (only 5 per cent of the student body), as justifications for not teaching social justice issues in class. This ignores that over 90 per cent of students will not have access to these programs.
Far from covering issues such as Aboriginal deaths in custody, disproportionate sentencing and police powers, Australian law schools acclimatise students to accept law’s authority without question. Students learn to apply the law to facts, without questioning the law or the facts. They learn to dismiss social justice as an ‘optional’ subject. And they internalise racist laws as justified by governmental authority, graduating into firms that do not allow them to question the law publicly.
So yes, we must teach critical race theory in Australia, and we must teach it in law schools. It is beyond time to allow students to question and interrogate the effect of law on society and to promote the ideals of justice and law reform.
Image: Ted Eytan