Jurisprudence

The Law Isn’t Neutral

Boston University School of Law dean Angela Onwuachi-Willig won’t stay silent about George Floyd and police brutality.

A woman stands in front of signs on the White House fence saying things like "Silence is not the answer."
Protesters have left posters and placards, seen on Monday, on the security fence around Lafayette Square near the White House. Mandel Ngan/Getty Images

On this week’s episode of Amicus, Dahlia Lithwick spoke with Angela Onwuachi-Willig, the dean of Boston University School of Law, who is a renowned legal scholar and an expert in critical race theory, employment discrimination, and family law. Last week, she posted a remarkable open letter to her students talking about this moment in America. In their conversation, which has been edited and condensed for clarity, Lithwick and Onwuachi-Willig spoke about that letter, not being silent, and courts’ efforts to begin grappling with the injustices they’ve perpetuated.

Dahlia Lithwick: One of the things that really struck me about your letter is that I’m the mother of two teenage boys who swan around Crown Heights in Brooklyn and Manhattan as though they own the place. And the conversations I’ve had with them are utterly different from the conversations that you have with your kids. And more pointedly, I am really struck by the silences. You flag our silences, and you also flag your own silence and how hard you had to struggle to even write this. And you are the dean of this unbelievably prestigious law school. I wondered if you could reflect for a minute on that struggle to not be silent and to speak knowing that there could be repercussions. What was the thinking around that, and how do you feel now that you’ve said what you needed to say?

Angela Onwuachi-Willig: There were a million things going through my mind. As the dean of the law school, I represent everyone in the law school when I represent the institution and that’s a body of people who have a wide variety of views. Even as I look at what I perceive as the murder of George Floyd and see no other way to view that tape, there might be other people in my community, including my alumni community, that would look at that tape and see it differently. So I’m expected to resist those kinds of broader statements. Then there are also the myths that we tell ourselves in law that we’re supposed to be these completely neutral beings and that the law itself is completely neutral, without recognizing the actors that wrote the laws, without recognizing who was left out of the creation of those laws, without recognizing how precedent reifies the exclusion of certain voices from the creation of case law. And how it reifies the continuing exclusion of particular perspectives because of people viewing their experiences as normative.

I was struggling with that and yet thinking about all those, including my own students, who were feeling voiceless, who were asking themselves the same question that I was asking: What’s the point of my being in this position if I can’t speak? And ultimately that was what pushed me to speak. What’s the point of my being in this position and being a black woman and having people laud it if I’m going to be silent in the same way that perhaps a white man would be silent in this position. It didn’t make sense. Whatever the repercussions were, I was fully open to them and would be fine with them, absolutely welcome them.

So it was more important to speak and it was more important to acknowledge not only that this was something that affected all African Americans but that this has effectively affected all people, that this was something that they should be upset about and that it happens all the time. I think one of the things that you worry about when you’re in these positions is that you get used as sort of an example of why racism doesn’t exist anymore. You see, we have a black dean, things aren’t as bad as they used to be. There’s no more racism or there’s a lot less racism. And I didn’t want to be used in that way either.

For all those reasons, it was important not to be silent. It’s important to speak for my students, and particularly my black students, who I knew were in a lot of pain. It was important to speak so that people who were not aware that people in my position were feeling the way I was feeling knew how I was feeling. That people knew that I feared for my own children, that people knew that people with my education and standing also suffer harassment from the police. All those things are really important for everyone to understand.

One of the things that really struck me about the letter was the intimacy of it, that you talked about your kids and you talked about your fear. I went through three years of law school without ever hearing anybody talk about their children. Certainly, I never heard a woman on the faculty talk intimately about being a mother. It’s one of the things I think I hated about law school—this oracular, Langdellian world where professors are perfect and they’re brains in vats. I wondered with that vulnerability on your part, what you wanted to hear back and what you have heard back. Have people been vulnerable to you in responding to this?

My first and foremost hope was that my students of color would feel seen, that they would feel like someone acknowledged and recognized their experience, that students who were angry would feel like someone said what they were thinking and that people who wanted to be pushed to look inward felt like they were pushed to look inward. And I’ve gotten nothing but really, really positive reception. One of the things that people like to say in law school is that you’ll learn, thinking like a lawyer, not to say I feel anymore and to be only about what you think, and one of the things that one of the students responded was that it was refreshing to see someone talk about their feelings and that that was important to be reminded that that was part of being a lawyer: having a feeling.

Part of being an effective lawyer is having the ability to feel, and I’ve gotten nothing but positive reception from students of color feeling seen, white students who are allies feeling seen and feeling good about being pushed to look inward, people appreciating the fact that I was willing to be vulnerable. I think people appreciate when people who are in positions of power make themselves vulnerable as well.

I think that one of the themes here is imagination and failures of imagination. I could never have imagined a law school dean modeling pain and compassion and suffering like you did. I’m really struck by this letter that the Washington Supreme Court published that is also beyond anything I could have imagined. It’s signed by the entire state Supreme Court and is a recognition as judges of the role they’ve played in devaluing black lives, talking about what the court has done with its precedent, talking about systemic inequality and a lack of financial resources. In my lifetime, I couldn’t imagine courts acting to take responsibility like that. And I wonder if really that’s all your letter was asking for?

That letter is incredible. It is powerful and it gives me hope in a way that was hard to imagine even just a few days ago. So many of us for so long have been talking about the ways in which law facilitates injustice. And to have a Supreme Court of a state basically acknowledge that and to say that there is work that has to be done by the court to undo that is really unbelievable.

It’s part of what I and so many people have been saying in our scholarship for so long and it’s unbelievable. The Massachusetts Supreme Court Judicial Court also wrote a very powerful letter too. And if we can have more courts acknowledging that and we see more changes in a case law, that could create real change. I hope that this results in real change. You almost don’t want to believe it because so often you think maybe this will result in a change, and then things go back to the same situation. But I’m hopeful that this moment might be different.

Listen to this episode, in which Dahlia also talks with former DOJ lawyer Vanita Gupta about overpolicing and what we can do about it, below, or subscribe to the show on Apple Podcasts, OvercastSpotifyStitcherGoogle Play, or wherever you get your podcasts.