Indigenous Law Bulletin
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By Heather Douglas
From 1996 until 2000 (when an Indigenous lecturer was employed) I was engaged as the Indigenous support person in the law school at Griffith University. This job was to take up about two-thirds of my part-time, Level A, six-month contractual position. The contract was renewed several times before I was placed on ‘tenure track’ which corresponded with me taking on more mainstream duties in the law school. I say this to emphasise that, in spite of being white, the position was marginalised within the university framework; a position that continues to be too familiar for academics involved with Indigenous students.
During the period that I was engaged as the Indigenous support academic, I struggled with the practical mechanics of how to attract Indigenous students to the law school, how to help them get going, how to encourage them to stay and finally to complete their studies. I also struggled with my role in these processes. Recent debate about Indigenous education continues to demonstrate that the answers are not simple, the picture is ambiguous and full of paradoxes. There is a range of ways to approach the issues and often it won’t be clear if the idea is a good one until it is tried. During the period I was in this role I tried out lots of ideas. I saw about 30 students get started and by the end of the period about eight were still enrolled. Not a particularly startling record.
While I carried out the support position I wrote four articles about the issues I thought existed and the responses that had been tried in relation to assisting Indigenous students through law school.[1] The articles ultimately operate as a history of my shifting approach. Ultimately, I left the role. The following is a summary, taken from those articles, of the journey of my changing views.
I suspect that when I started the role I was informed by the ‘rescue mentality’. Indigenous people needed to study law to save themselves from the difficult fate that inevitably awaited them. An attitude that Razack has discussed, suggesting that this outlook is tied up with a kind of race to innocence by white people.[2] However, the thrust of my first article probably reflects what Phil Falk (the current Indigenous law lecturer at Griffith Law School) would call the ‘deficit model’. According to this model there is nothing wrong with the law school systems themselves, the support worker is there to help Indigenous students to fit in.[3] Indigenous people ‘lack’, and it falls to the support person to fill the gaps in past education, financial support, and attitude. Hence, I focused on scholarships for books, pre-law programs (as academic catching-up) and mentoring programs (with (white) lawyers) for attitude.
Although some of these responses may have assisted some students, Indigenous students were not generally any happier and kept leaving at high rates. I really couldn’t understand why students weren’t staying and I began to refocus my outlook. For me it became less about law school graduations and more about trying to figure out what the students wanted from their law school teachers and from the law school. In 1998, Cate Banks and I interviewed all the law students (current and past) that we could locate around Brisbane about their experiences.
The interviews shocked me: all of the students reported extraordinary feelings of alienation based on racism. The sense of racism and alienation was described by students in different ways - it related to their relationships with students and lecturers; to the curriculum; to the way things were taught; to the assumptions that underlay the institutional framework. Even alternative entry procedures were described as alienating experiences. Fourmile has pointed out that ‘Aboriginal people feel ill-at-ease and self conscious when entering white institutions which emanate an entirely alien cultural presence.’[5] This was reflected by all of the interviewed students who found law school institutions to be intimidating. For example, students commented:
The problem is that you are disorientated by the system... there is no two way learning you are just talked at, that disorientates you even worse...
I don’t know how you can stop people dropping out... the thing they can do is not make it such an alien environment...
I feel under siege in the classrooms...
Similarly, Indigenous Canadian academic, Monture, writes that her experience of law school was that the classrooms were not safe.[6] When I wrote about these comments in 1998, I noted that a lack of personal confidence was an issue, as was a lack of respect for anglo-education institutions in Indigenous communities. Although this is partly true, such an analysis still reflects the deficit model and fails to recognise the institutional failure. Further, it ultimately fails to require white people to take any real responsibility for the failure. Why do Indigenous students lack confidence and not respect white institutions? The real question should probably be: why should Indigenous people be confident and respectful in, and of, white institutions?
In analysing the students’ responses, I suggested back in 1998 that it is difficult to separate out race and class, and ultimately students’ responses tended to emphasise the intersecting issues. Monture has described the sense of alienation she felt as a Native Canadian law student as ‘layered like an onion’[7] and the students’ comments illustrated this feeling as well. One student noted that:
Doing law was the worst experience of my life. I was from a lower working class family, I was the only person who went to a state school, I was indigenous, I worked and I rode a bike because I did not own a car, not a good combination at law school. I was absolutely ostracised...
However, although financial- and class-related issues exist, and continue to exist, for Indigenous students and others, this analysis again takes the pressure off the race question. Razack points out that systems of domination interlock and sustain each other.[8] In any event, financial issues are arguably a lot more simple to address, at least in a reactive and individualised sense. The difficult issue is the race part because it challenges white peoples’ certainty of and comfort in their (my) institutions. Although many white people may not set out to be racist, the attitudes and behaviours appear to be ingrained from an early age.[9] One student reflected on how racism works:
I had to realise that I did nothing wrong... it was not me... but I could not understand... that is what racism is about... people do things for no good reason... you don’t mean anything personally to them...
Students who were interviewed were able to point out broad systemic issues related to race but were also able to pinpoint more specific problems with the system. For example, they identified the lack of Indigenous teachers and Indigenous curriculum, its inappropriate treatment when it was introduced and the generally racist attitudes of even the most ‘caring’ teachers. In short, students specified deficits of the white institutional approach to the issues:
We need an aboriginal law person to help aboriginal students
I have a friend who is very proud of her Murri heritage and one lecturer said to her “...how can you be a spokesperson for your people when you have such fair skin”... they really need cross cultural training ...
We did about one lecture on Mabo and it was basically defining what Murris can’t take and it is not a real threat to you so it was more in terms of what white Australia had to lose rather than the positives...the only other time that we mentioned Murris was in first year and we did a little on the small claims tribunal and my tutor said she had little respect for it because if you were an ordinary white Australian you would have no hope but if you were a one legged aborigine you would... I was a 17 year old kid who was scared to be there anyway and so I could not speak up and defend myself and she would have taken one look at me and said you aren’t Aboriginal...so...
One student complained that the tutor employed by the faculty to support Indigenous people was:
racist in her own way... she was patronising and paternalistic and we found it really hard to relate to her... culturally and there were instances where what she did was totally inappropriate... she hounded people... no-one really trusted her... she did not earn the trust.
In short, it seemed that the things that I had been doing with respect to Indigenous students’ support were largely about bells and whistles and really weren’t attacking the heart of the matter. Perhaps the reason for this was that, as a white person, I was inevitably complicit in the retention of these systems and ways of doing things.
After writing up the interview material in a rather descriptive form, Cate Banks and I read Bourdieu’s work and it alerted us to a way of understanding what was happening. Bourdieu’s theory of social reproduction[11] suggests that by entrenching and legitimising existing social structures, dominant classes maintain power and control, and dominated classes remain disempowered.[12] In the case of law schools, the dominant class is thus made up of those who control the structures and processes which operate in the institution. Such structures and processes are manipulated by the dominant class so that they replicate existing social classes. We argued that Indigenous students are members of a dominated class and that they are systematically disempowered by the structures and processes of law school. Bourdieu claims that there is a relationship between social reproduction and formal education because the education process is one of the sites where the dominant class teaches or instils arbitrary conceptual meanings and ‘truths’. Bourdieu argues that the dominant class uses ‘institutional or routine mechanisms’[13] (which we called ‘cultural tools’) in a covert way to inculcate these arbitrary truths and thus replicate existing social structures. It is the imposition and legitimation of these systems that Bourdieu calls ‘symbolic violence’.[14]
According to Bourdieu, some of the cultural tools used in the context of formal education include the following:
Bourdieu believes that ultimately, the operation of these cultural tools causes a resigned attitude to exclusion and failure amongst the dominated class.[16]
Because of the covert way in which the cultural tools are used, the processes and results are deemed legitimate, masking the illegitimacy of the social domination which occurs. Bourdieu argues that ‘authority plays a part in all pedagogy.’[17] Teachers make culturally arbitrary decisions about what they teach or don’t teach and how they teach their material. What is missing from the curriculum is equally important to what is there. In our article we demonstrated the links between the students’ experiences and the operation of these cultural tools. In particular, we discussed students’ comments about methods of teaching that work to exclude Indigenous students, how Aboriginality is made a marker of ‘otherness’ in the course of teaching and how courses are structured to specifically exclude Indigenous student participation.
Our analysis suggested that the ‘problem’, for the most part, wasn’t Indigenous students. Rather the problem was the institution – as obvious as this now seems. So it is radical change that is required. Real innovation is extremely challenging and in law schools where conservatism tends to prevail, it may be particularly so. But clearly, law schools need to change radically if Indigenous students are to share ownership of them.
Basically my research and my teaching experiences relating to Indigenous students lead me to the view that the whiteness of the law school, by its very nature, excluded Indigenous students. The staff; the curriculum; the methods for teaching and assessing, were all white. In my final article I set out to survey what other law schools were doing and, save for some notable exceptions, most were struggling along in much the same way as Griffith.[18] The problem was that I didn’t have the tools or the ideas about how to dismantle, re-imagine and re-create how to think of and do things.[19] The issues were, of course, beyond me to resolve. In 1999 I worked with a group of academics to secure funding for an Indigenous academic to work with Indigenous students in the law school, to tackle curriculum issues and to help staff find a better way to approach Indigenous issues and teaching. Our application to the Vice Chancellor set out the plan. We requested funding for a Level A, 40 per cent fractional, six-month contract Indigenous staff member to:
We sought less than $20,000 and in 2000 an Indigenous lecturer, Phil Falk, was employed. Looking back on this process it is clear that the job description was far too large considering the scope of the employment contract. Further, it is clear that the conditions under which Phil was employed re-created the kind of marginality that I had initially experienced. The positive aspect is that the identified position has lead to a continuing position within the faculty. Our enrolment numbers of Indigenous students have greatly expanded. A second Indigenous academic is now employed in the Law School and staff are working on ‘Indigenisation’ of the curriculum. We are working towards institutional change.
A focus on alternative entry and support throughout the law degree remains important to encourage Indigenous students to commence and complete law school. However these responses usually take place without impacting on the structure and approach of the law school as an institution. We need to think of ways of transforming law schools so that they are safe places for Indigenous students. The employment of Indigenous academics and the rethinking of law school approaches to curriculum may help this to happen.
Heather Douglas is a senior lecturer at the Law School of Griffith University. For several years she ran a pre-law program for Indigenous students. She now teaches and researches in the area of criminal law and domestic violence. A version of this paper was presented at the Indigenous Legal Education Seminar, University of NSW, 15 November 2004. Heather can be contacted at <H.Douglas@griffith.edu.au>.
[1] ‘Indigenous Australians and Legal Education: Looking to the.’ [1996] LegEdRev 9; (1996) 7 (2) Legal Education Review 225, ‘”This is Not Just About Me’’ : Indigenous Students’ Insights About Law School Study’ [1998] AdelLawRw 23; (1998) 20 (2) Adelaide Law Review 315, ‘The Participation of Indigenous Students in Legal Education: 1990- 2000’ [2001] UNSWLawJl 32; (2001) 24 (2) University of New South Wales Law Journal 485 and ‘From a Different Place Altogether: Indigenous students and Cultural Exclusion at Law School’ (2000-2001) 15 Australian Journal of Law and Society 42 (this last with Cate Banks).
[2] Sherene Razack, Looking White People in the Eye: Gender, Race and Culture in Courtrooms and Classrooms (1998) 6, 14.
[3] As Minnow has suggested, when difference or lack is understood to reside in the person rather than the social context we can ignore our role in producing the difference. M Minnow, Making all the Difference: Inclusion, Exclusion and American Law (1990), 174.
[4] This part of the discussion is based on my discussion in ‘“This is Not Just About Me”: Indigenous Students’ Insights About Law School Study’ [1998] AdelLawRw 23; (1998) 20 (2) Adelaide Law Review 315.
[5] H Fourmile, ‘Who owns the past? Aborigines as Captives of the Archives’ (1989) 13 Aboriginal History 2 and see also M Masuda ‘When the first Quail Calls: Multiple Consciousness as Jurisprudential Method’ (1989) 11 Women’s Rights Law Reporter 7, 8.
[6] P Monture-Angus, Thunder in my Soul (1995), 67.
[7] P Monture, ‘Now That the Door is open: First Nations and the Law School Experience’ (1990) 15 Queens Law Journal 179 at 207.
[8] Razack above n 2, 159.
[9] This is discussed by A Moreton-Robinson, Talkin’ up to the White Woman: Indigenous Women and Feminism (2000), xxii.
[10] This part is based on Cate Banks and my discussion in ‘From a Different Place Altogether: Indigenous students and Cultural Exclusion at Law School’ (2000-2001) 15 Australian Journal of Law and Society 42.
[11] Principally, Bourdieu’s thesis propounded in P Bourdieu and J C Passeron Reproduction in Education, Society and Culture (1977).
[12] Ibid generally and especially 9,13, 32. In respect of the word ‘class’ Bourdieu focuses his attention on the social aspect of class and this is not entirely linked to the economic notion of class. Bourdieu’s examination of class takes into account a range of cultural tastes and assumptions about what is valuable as shared by different social groups.
[13] Bourdieu also uses the term ‘tools’, see Bourdieu and Passeron ibid, 142. ‘Cultural tools’ is Banks and Douglas’ term.
[14] Bourdieu and Passeron ibid, 13-14, 24-25, 31-32.
[15] Ibid at 9-10,38,147,53-54,167, 204-206.
[16] Ibid, 97-100.
[17] Ibid, 10.
[18] ‘The Participation of Indigenous Students in Legal Education: 1990- 2000’ [2001] UNSWLawJl 32; (2001) 24 (2) University of New South Wales Law Journal 485.
[19] As Razack points out, this may be a very large task as the undoing relates to more than one system, it includes issues about gender and capitalism among others. Razack above n 2, 14.
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