(9.2.21) Student Demands — Reissued on Sept. 2, 2021

To: Interim Dean Eduardo Capulong

CC: Interim Dean Hayat, Dean Wilson-Barnes, Interim Clinic Dean Huertas-Noble, CUNY Law Faculty E-Mail List, CUNY Law Staff E-Mail List, CUNY Student Leaders ListServ

We hope all is well on your end. While a community-wide meeting to address past and ongoing racial harm on our campus — not just limited to Mary Lu Bilek or her resignation, but extending to how our administration, faculty, staff, and students all relate to one another — is necessary, we are disheartened to see that this meeting, which was planned without the broader CUNY Law community, continues to center diversity, equity, and inclusion (DEI) in dialogues that should center antiracism and a vision of racial justice that resists rather than enables anti-Blackness.

On August 31, 2021, the CUNY Law Clinical Program had its first cross-clinic class, an anti-racist lawyering training facilitated by Marbre Stahley Butts, Executive Director for Law for Black Lives. At this session, Marbre noted the difference between diversity and anti-racism, highlighting how diversity work seeks inclusion without actually disrupting the dynamics of power undergirding racism and anti-Black racism. The DEI Framework emphasizes seeing more people of color in the boardroom, filling seats in classes, and in positions of power, without actually striving to provide meaningful change or dismantle systems that create oppression. It tries to cast statistical diversity as a victory, allowing institutions to cling to (and exploit) BIPOC and historically marginalized communities and feign a commitment to racial justice without enacting meaningful change or actually engaging with the systems and structures that uphold, define, and sanction institutional racism.

As part of the materials received for the clinic-wide session, students were asked to read a social justice glossary produced by YWCA. The glossary defined diversity as follows:

Diversity — A variety of things. Recognition of difference alone does not equal justice or inclusion. A diversity focus emphasizes “how many of these” we have in the room, organization, etc. Diversity programs and cultural celebrations/education programs are not equivalent to doing racial justice. It is possible to name, acknowledge, and celebrate diverse cultures without doing anything to transform the institutional or structural systems that produce, and maintain racialized injustices in our communities.

We have bolded and highlighted key pieces of this definition, and we hope you and your administrative team will reflect upon and truly internalize these notions.

In addition to offering reflections and educational materials on the limitations of diversity and inclusion (enclosed), we wish to emphasize some of the harmful impacts of administration’s actions on members of the student body. We focus specifically on the decision to choose a DEI response to the persistent issues of anti-Blackness and other racisms on our campus without consultation and collaboration. CUNY constituents are both emotionally and financially implicated in this decision due to expectations of their attendance/participation, and because our tuition and taxpayer dollars presumably continue to make these efforts possible. We also outline our concerns with the “equity audit” process.

Collaborative dialogue with CUNY constituents and impacted communities is a necessary prerequisite to institutional change.

To our knowledge, students were not included in the choice to contract with an outside facilitator specializing in DEI, nor in the decision to conduct an equity audit. On June 2, 2021, Ja’Loni Owens and Cory Provost, Student Government Co-presidents, were invited to the Racial Equity Planning Meeting, which included student, staff, and faculty representation. Another Student Government Representative, Misael Syldor, attended the meeting in Cory’s place. At this meeting, some administrators, including former Dean Robbins, shared that the Law School should and would consider contracting with an outside firm to conduct an equity audit and facilitate difficult conversations between faculty members and staff members. However, students and faculty of color emphasized that conducting an equity audit, or even organizing a community-wide meeting, would only divide our community further unless there was first a commitment by everyone to confront anti-Blackness that many in this institution have swept under the rug for far too long. For example, it was suggested that an equity audit include salary disclosures and dialogue around work conditions for BIPOC faculty and staff.

No decision regarding the equity audit was reached at that meeting, but many left with an understanding that this work was only beginning and there would be future meetings to discuss the pathway forward. This communal understanding has proven false. We can only assume the change in approach is due to an email exchange born from that meeting. In this exchange, you directly addressed Ja’Loni when characterizing student demands for accountability as: 1) attempts to bully white, tenured faculty; and 2) a betrayal of CUNY Law’s values. You were also sure to CC the entire faculty body and several of their peers during this email exchange. Neither Cory nor Ja’Loni have been invited to any further Racial Equity Planning Meetings. For your convenience, the email you addressed to Ja’Loni is below and the full email exchange is available here:

“I’ve been reluctant to weigh in as email is such a poor medium by which to engage these issues. But given some of what’s been said, I feel compelled to state explicitly certain fundamental values that, I hope, are non-negotiable:

CUNY Law is a diverse community. We value each and every member of our community: students, faculty, and staff. For that reason, we cannot allow calls to expel members of our community to remain unanswered. Every member of our community belongs here and we reject emphatically any suggestion to the contrary. We reject that kind of bullying as antithetical to the Law School’s mission and urge everyone to work through differences, to agree and disagree, resolutely and passionately if need be, but to do so respectfully, empathetically, and restoratively.”

In addition to the Student Government Co-Presidents, the list of students who were not consulted about the Law School’s decision to retain the services of DEI experts, includes any other student organizers; other Student Government representatives; BLSA leadership; student members of the now-disbanded Race, Privilege & Diversity Committee; and students with an interest in the soon-to-be constituted Antiracism Task Force.

During the Town Hall Planning Meeting — which students have requested and since been denied access to a recording of — you professed a love for CUNY School of Law and a commitment to working with student organizers, to transparency, and to healing. However, your subsequent repeated refusals to initially meet with student organizers, citing our purported bad faith and lack of trust and respect, reads as manipulative and condescending. In light of your articulated love for the Law School and your commitments to engaging us in good faith, your decision to not actively seek our input in this decision reads as disingenuous and as completely abandoning your promised good faith. If you had sought our input, we could have, at the very least, militated against the unfortunate decision to reach for the low-hanging fruit that is DEI in place of substantive anti-racist work that could have been truly impactful. There are a whole host of practitioners and organizations that could have been tapped to do the latter, had we been provided the opportunity to bring their healing work into our community.

The failure to have a broader dialogue around this session not only impacts buy-in amongst CUNY constituents and prospective participants, but also leads us to believe that this session is not about creating racial justice. Rather, it appears to be about appeasing certain tenured parties that this administration continues to capitulate to at the expense of faculty, staff, and students, some of whom have no faith in your continued leadership. It is evident that these parties are not, in fact, tuition-paying students and active student organizers and leaders which are touted by this very institution. Please, correct us if we are wrong.

Critical questions remain because meticulous data was gathered by directly impacted and harmed constituencies within this very institution, yet wholly disregarded — an act of erasure. Who on the faculty and administration other than yourself provided actual buy-in towards, or expressed a need for, the work of Dr. Worthington and his team? What other information is CUNY Law looking for? What information do we need to collect in order to act? Why were the recommendations made by the aforementioned groups of people — recommendations made by the people who have been directly harmed by this institution — ignored? Why was our vulnerability not worthy of engagement? Why must Black and non-Black people of color within our community continue with processes of institutionally forced intimacy, with no promise of reprieve? Student organizers have brought to light the pervasive, structural ways in which anti-Blackness manifests itself in admissions, in approaches to student success, in hiring and tenure policies, and in the ways white tenured faculty engage students and faculty. What do you believe that this audit will show that you have not already seen? Or is it that you hope this audit will absolve you, a person who has conveniently avoided providing any clarity around your signature on the second letter and who has undermined student organizing and disparaged student organizers since you assumed your interim position? Are others looking for absolution with this process?

The harmful effects of this administration’s actions have very real impacts on members of this “community.” For many BIPOC students, the word “diversity” is a mere symbolic gesture that deprives us of the fullest degree of our humanity. We are transformed from people with rich and full lives and experiences into mere statistics utilized by an institution to demonstrate its inclusivity. Meanwhile, we are not actually included in processes and decisions that impact us and our lives as members of this institution. For Black students, who bear the brunt of anti-Black racism at this campus, the pain is that much more profound. Imagine what our Black student comrades and student colleagues, who, in 2020, represented around 8% of the student body, may feel when seeing that CUNY Law purports to be committed to diversity, equity, and inclusion as opposed to anti-racism, or dismantling anti-Blackness. This is underscored by the way CUNY Law’s diverse student body and its Pipeline to Justice program quickly became rhetorical weapons against student organizers who aired grievances about Mary Lu Bilek and her leadership.

An equity audit is not a substitute for accountability and change.

As for the equity audit and the decision to bring in an outside facilitator, we have questions and doubts. First, we are reminded of the labor that students have undertaken to catalogue and archive the histories and experiences of racism and anti-Blackness on campus, which poisons every organ of this institution (students, faculty, and staff). The petition and demands circulated by student organizers and signed by 245 students last semester have gone largely ignored. Faculty demands and recommendations for a more just CUNY Law have similarly been overlooked. In fact, the Faculty of Color Caucus has insisted that we focus on facilitators who understand CUNY Law’s distinct history, mission, and concerns. This idea was clearly dismissed.

When the administration has responded it has consistently done so with claims that demands cannot be fulfilled because of a whole host of opaque policies and procedures. What is persistently absent is a real commitment to creativity or alternative solutions. With the call for an equity audit to get to the bottom of things here on campus, the voices, stories, and pleadings of faculty, staff, and students alike are communicated to be meaningless.

Throughout our studies at this institution, students are taught that our work must center those who are most impacted. In our lawyering practice and organizing work, we are actively encouraged to center the voices of the most marginalized and to support the expertise of those who experience harm. Are these lessons merely pedagogical posturing, things we say to students, but do not model in our institutional responses to harm? The dissonance is startling where the administrative posture at CUNY Law is marked by neglect and refusal — neglect of community members who bravely and vulnerably shared their experiences of racial harm on campus (see, the CUNY Town Hall Planning Meeting last semester), refusal to form a Bias Response Team imbued with the power necessary to address and mediate harm on campus, neglect for Black and Palestinian students whose demands are not satisfied by symbolic solidarity, and refusal to give faculty, staff, and student led anti-racist efforts the power and the resources to create lasting change at the Law School. The bar is on the floor.

What you describe in your email as an impasse, we perceive as a lack of willingness to engage powerful members of our community and hold them to account. We perceive an unwillingness to be anti-racist. We perceive an unwillingness to center multiply-marginalized communities on campus. We perceive a liberal institution clinging to its sense of moral superiority by bringing in a facilitator to tell us that we are better at diversity than the Ivy league and most other law schools in this country. We have been watching, careful to weigh how CUNY Law exercises its professed commitments to racial justice — and while so many of our brilliant faculty members model how we can be lawyers who combat oppression, others are found lacking, and our administration continues to falter.

We further wonder what the audit is intended to solve and do not believe Dr. Worthington’s recommendations will matter if the Dean in his post is unwilling to commit to leading the Law School in a bold, anti-racist direction. We are doubtful that an equity audit can occur when those who were central to the ongoing harms associated with Mary Lu Bilek’s’ accountability-less departure continue to present their role and behavior as innocuous (See 3/28 Letter and 6/8 Letter). As has been the case thus far, they will continue centering themselves in dialogue and acting as if their actions in the day-to-day are not harmful. An equity audit and the precedents established by CUNY Law’s administration invite this kind of self-centered engagement. CUNY Law remains steadfast in its commitment to universalize harm, to act as if all harms can be regarded with equal measure. In conversations with you, Dean Capulong, you have intimated that the community must be mindful of all voices — words that have been translated as the administration’s dedication to preserving the status quo, this institution, and certain institutional actors over others. In doing so, CUNY Law resembles proponents of the reactionary All Lives Matter movement, telling each person that their experience is as valid and meritorious of recognition as the experiences of people who have been harmed by this institution.

We also worry that the kind of climate that an equity audit creates — one of compulsory intimacy — will accomplish little. We are thoughtful about staff and faculty at this time, particularly those who may be fearful to share their experiences in this format. Will their voices continue to be silenced by a process that requires them to share their experiences without any guarantee that their vulnerability will lead to change and without any safeguards against retaliation? This question is particularly profound when considering the actions of powerful institutional players who’ve been called to accountability with no response. Though they refuse to engage, the Law School’s leadership seemingly allows their animus to feature prominently in decisions about how we move forward.

As a result of this, and all of the other issues outlined in this letter, neither the actions or words of this administration instill confidence. We remain fearful that the exercise we are asked to embark upon in good-faith is nothing more than a ruse for absolution — to absolve harm-doers of their responsibility to change and to absolve this institution of its duty to respond to institutionalized racism, under the guise of a commitment to diversity, equity, and inclusion. Who will be the beneficiaries of these processes if we are not working to address the structures of power that precipitate racialized violence?

STUDENT DEMANDS (2021–22)

Just as students are called to carry anti-racist practice with us throughout our legal careers, we ask CUNY Law to do the same by implementing the student demands in their current iteration:

1. Informing Dr. Roger Worthington and his team at the Center for Diversity and Inclusion in Higher Education at the University of Maryland that their services are not the right fit for our campus.
2. Publicly disclosing to the CUNY Law community (1) exactly how much the Law School intended to compensate Dr. Roger Worthington and his team for their services and (2) the source of those funds.
3. Reaching out to private donors to establish a dedicated, renewable scholarship for Black students and for students whose lives have been touched by criminalization, incarceration, and state violence and who demonstrate a commitment to public interest and financial need.
4. Working with the BLSA Leadership and Black Student Leaders to do more intentional recruitment to increase the number of Black students enrolling on our campus, particularly amongst residents of NYC and those who are on the frontlines of the movements our campus community admires and trains lawyers to support.
5. Commit to making CUNY Law an LSAT-optional institution and retiring any policies that ask Admissions to make their decisions based on a desired median LSAT score. According to LSAC’s own research, women test-takers, African American test-takers, and Puerto Rican test-takers score lower on the LSAT, creating a disparate impact on legal education and the legal profession as a whole. Just 5% of lawyers are Black, which is in part due to the anti-Blackness baked into the LSAT and its use as a factor in determining whether Black applicants will be successful in law school.
6. Working with BLSA Leadership and Black Student Leaders to establish a Black CUNY Law Applicant Support Fund, which would increase the number of fee waivers available to Black CUNY Law applicants who demonstrate a commitment to public interest.
7. Commit to hiring a culturally competent mental health counselor at the Law School. We were hopeful that a counselor would be hired in July 2021, but have received no updates.
8. Commit to establishing designated Mental Health Days during the academic year, which would grant students the opportunity to miss class without negatively impacting their final grades. Work these days into ABA-required classroom hours and encourage professors to adopt more flexible attendance policies that do not require extensive documentation or revealing potentially traumatic circumstances to virtual strangers.
9. Continue to allow Black students to submit therapy bills relating to/arising from racial trauma to the CUNY Law Emergency Fund for reimbursement.
10. The racial harm caused by Mary Lu Bilek is exacerbated by her delay in communicating the full extent of the harm she caused to the CUNY Law community. This harm has since been exacerbated by the lack of transparency surrounding Mary Lu Bilek’s resignation and Eduardo Capulong’s appointment. We demand a written transparency statement that provides the campus community with the details of Mary Lu Bilek’s resignation and your appointment.
11. Commit to collaborating with Student Affairs and Academic Affairs to implement a campus-wide political education program, which pushes all members of the campus community to engage in critical conversations about racial capitalism, abolition, imperialism, anti-Blackness, anti-Palestinian racism, classism, ableism, and other subject areas. While the clinic students are deeply appreciative of the anti-racist lawyering training hosted on 8/31, we cannot help but wonder what our campus community would be like if this type of programming started earlier and happened on a regular basis.
12. Commit to creating an Anti-Bias Response Team with the power and resources to mediate conflict on campus for students, faculty, and staff, alike. We recommend that this team consist of restorative and healing justice practitioners and facilitators with a demonstrated commitment to anti-carceral alternatives to addressing harm. When relying on trainers from the CUNY community, all must undergo rigorous training with trusted and experienced practitioners.
13. Engage CUNY staff and faculty to discuss their demands for a safe, healthy work environment, centering principles of racial, economic, and transformative justice. Engage the Faculty of Color Caucus or a future anti-racist task force to support their needs in concrete ways. Support CUNY staff and faculty in realizing these needs and demands.
14. To the extent that the Faculty of Color Caucus wishes to see these demands carried out and to the extent that these demands are still unmet, we co-sign the following: (A) We demand that you commit your support to the creation of the Faculty of Color Caucus (FOCC) or a future anti-racist task force as an active committee elected by self-identified Faculty of Color. (B) We demand that the FOCC be empowered to carry out the following functions: (i) Approve or veto the chair assignments and composition of all other committees (except for the Personnel & Budget Committee); (ii) Approve or veto proposed job vacancy notices for tenure-track or tenured positions prior to their release; and (iii) Approve or veto proposed statements by the Dean relating to racial justice, politically marginalized groups, or bias incidents ahead of release or publication.
15. In the interest of improving working conditions for junior faculty, many of whom are BIPOC, we demand a formal institutional commitment to: (A) Establishing the necessary institutional protections to safeguard the employment of BIPOC faculty who align themselves with Palestinian liberation and Black liberation; (B) Establishing an early-tenure policy designed to remedy the gross inequities in existing tenure policies and procedures; (C)Resourcing formal mentorship programming to support junior faculty; and (D) Building in critical race / critical theory teaching tools and progressive scholarship into approaches to academic support, throughout our curriculum and professional development, including the lawyering program, clinical instruction, doctrinal classes, clinical instruction, and all electives offered by CUNY Law, including bar electives.
16. To the extent that CUNY Law staff wishes to see these demands carried out and to the extent that these demands are still unmet, we also demand the following: (A) Establishing the necessary institutional protections to safeguard the employment of staff, especially BIPOC staff, at CUNY School of Law. These protections must adequately address fears of retaliation from speaking out about injustices experienced on campus. (B) We understand the creation of a SOCC or something similar, is underway. We demand that you commit your support to this group by providing the institutional support necessary to advance their interests and crediting SOC for their invisible labor. (C) We demand that the practice of closed-door meetings with select faculty and staff cease and that the FOCC and SOCC (or their equivalents) be included in decisions about the Law School’s future.
17. We demand that you commit to meaningfully including the student body, including but not limited to Student Government, in all dialogues about the future of CUNY School of Law.
18. Until you commit to implementing the student demands stated above, we demand that you resign or decline any positions or roles that put forward a perception that you are an “anti-racist dean” or that involve leadership in anti-racism efforts. Anti-racism requires a material commitment to combating anti-Blackness at the Law School. Absent such a commitment, putting forward this perception is not only dishonest but harmful to the CUNY Law community. As the FOC demanded of Mary Lu Bilek in December of 2020, we also request a detailed account of what positions you are stepping back from.

Students are imposing a deadline of Thursday, September 9, 2021, for a first response from you, which should include a commitment to implementing each of the demands above and immediate next steps. We also ask that your response be public and addressed to all of the Law School’s constituencies, including alumni, first in written form and, as we move forward, in community-wide progress meetings. These meetings must be held during a time that does not contribute to the exclusion of evening students and their instructors from these dialogues, as the Town Hall Planning Meeting did.

We look forward to hearing from you!

Signed,

Krystin Hernandez, Student Government

Ja’Loni Owens, Black Law Students Association (BLSA), Student Government, If When How @ CUNY Law

Jimmy Taylor, Student Government

Nerdeen Kiswani, Student Government, Students for Justice in Palestine (SJP)

Adina Marx-Arpadi, Jewish Law Students Association (JLSA)

Divya Babbula, Women of Color Collective (WOCC)

Kamalpreet Chohan, South Asian Law Students Association (SALSA), Racial & Social Justice Orientation (RSJO), Women of Color Collective (WOCC)

Misaël Syldor, Women of Color Collective (WOCC), Student Government

Fatima Mohammed, Student Government, Muslim Law Students Association (MLSA), Students for Justice in Palestine (SJP)

Reachelle Ramirez, Latin American Law Students Association (LALSA)

Rachel Pincus, Jewish Law Students Association (JLSA), If When How @ CUNY Law

Emlyn Medalla, Women of Color Collective (WOCC), Asian Pacific American Law Student Association (APALSA)

With the Support of,

Student Government (SG)

The Women of Color Collective (WOCC)

The Black Law Students Association (BLSA)

The South Asian Law Students Association (SALSA)

Latin American Law Students Association (LALSA)

The Jewish Law Students Association (JLSA)

Racial & Social Justice Orientation (RSJO)

OUTLaws CUNY Law Chapter (OUTLaws)

National Lawyers Guild CUNY Law Chapter (NLG)

Housing Rights Project (HRP)

Foundation for Immigrant and Refugee Empowerment (FIRE)

Resources:

On White Supremacist Culture and the Shortcomings of the DEI Framework:

• Tema Okun, White Supremacy Culture, (May 2021), (Defensiveness and Denial; Right to Comfort, Fear of Open Conflict, and Power Hoarding)
• Sara Ahmed, On Being Included: Racism and Diversity in Institutional Life (2012)
• Rachel Elizabeth Cargle, When Feminism Is White Supremacy in Heels, Harper’s Bazaar (Aug. 16 2018)
• Mayorga-Gallo, The White-Centering Logic of Diversity Ideology, American Behavioral Scientist (2019) (“By ignoring outcomes and centering the intentions and feelings of those in power, diversity ideology preserves the structural status quo of White supremacy”). See: The Dehumanizing Condescension of White Fragility (July 15, 2020); What White Fragility Gets Wrong, and 5 Books to Read Instead (July 31, 2020)
• Tatiana McInnis, A Farewell Letter to DEI Work, Inside Higher Ed (Aug. 20, 2020)
• Kyra, How to Uphold White Supremacy by Focusing on Diversity and Inclusion, Model View Culture (December 10, 2014)
• Sofia Samatar, Skin Feeling, The New Inquiry (Sep. 25, 2015) (“University life demands that academics of color commodify themselves as symbols of diversity — in fact, as diversity itself, since diversity, in this context, is located entirely in the realm of the symbolic”)

On Accountability and Transparency:

• Piper Anderson, Building a Culture of Accountability, Stanford Social Innovation Review (June 28, 2021)
• Kip Holley and Jon Martinez, Transparency Defined, Creative Commons (“The principle of transparency in organizing, engagement and equity work refers to the full and honest accounting of all facts, information, and context essential to ensuring an informed and equitable decision-making process. In practice, the principle of transparency also applies to the intentions and conduct of leaders, organizers, and facilitators, including whether they encourage or suppress criticism and dissenting viewpoints, whether they share or conceal unflattering information and conflicts of interest, and whether they acknowledge or disregard their own motivations and biases.”)
• Mavis Joy Manaloto, John Meredith, Dawn M. Simmons, Rosalind Bevan, Geena M. Forristall, Jai’anna Gonzales, and Arielle Greenspan, Five Steps to Anti-Racism Accountability, StageSource
• Mia Mingus, The Four Parts of Accountability: How To Give A Genuine Apology Part 1, Leaving Evidence (December 18, 2019)
• Mia Mingus, The Four Parts of Accountability: How To Give A Genuine Apology Part 2, Leaving Evidence (December 18, 2019)

Examples of Accountability Statements:

• Sparking Powerful Anti-Racist Collaboration (SPARC), SPARC Accountability Statement
• European Dissent, The European Dissent Accountability Statement, June 29, 2006
• AORTA, Dismantling Anti-Blackness in Democratic Workplaces