Challenging a Tradition of Exclusion: The History of an Unheard Story at Harvard Law School Academic Article uri icon


  • In a series of lectures at Harvard University, Professors Lani Guinier and Gerald Torres posited that people of color are the "miner's canary" in American society. Guinier and Torres argue that pursuing color blindness policies is dangerous because it ignores racial differences that affect every aspect of our society. According to Guinier and Torres, like the miner's canary that uses a call of distress to warn the miner of the hazardous atmosphere in the mine, the critiques people of color offer our institutions are warning signals to alert us to the presence of more systemic problems. Instead of relegating the voices of minorities to the complaint category and relegating it as race-specific, we must look at those critiques as a reflection of what is not working in our institutions. Guinier and Torres insist that using "political race" to forge cross-racial coalitions can be effective tools in exposing and demolishing embedded hierarchies of privilege in American institutions which endanger everyone. Like the miner's canary, for almost thirty years, Latino students at Harvard Law School have been telling a story that warns the institution of a poisonous element. The story is one about education, training, fairness, representation and merit--a story that the miners do not seem to understand. Their story addresses the need for mentors, role models, curriculum development and institutional support in an institution that prides itself on excellence. At the heart of this story is a critique of legal education. Through numerous forms of protests, students have attempted to dismantle the prevailing story told in legal academia. To the master storyteller, however, the dominant story seems fair, regardless of whom it excludes. When the task of persuasion is borne by law students and the world they wish to move means changing tradition, bias, and bureaucracy, the story becomes not only a critique but a necessary tool for the canary to exit the mine alive and with health. This Article provides an historical account and analysis of student efforts to pressure Harvard Law School to hire Latino faculty. Part I is an account of three generations of storytellers who have struggled to deliver a sound critique of legal education. Part II evaluates the soundness of the messages delivered. It suggests that the story be broadened to have the greatest long-term effect. Part III critiques the criteria Harvard Law School employs to determine who is "qualified" to teach there. It argues that the factors used to hire faculty are subjective stories told to discredit the experiences of others. Finally, Part IV recommends options for future efforts. Although, this Article focuses on events at Harvard Law School, the author hopes that it will also serve to help or inspire students at other law schools in their future efforts.

published proceedings

  • Harvard Latino Law Review

author list (cited authors)

  • Herrera, L. E

complete list of authors

  • Herrera, Luz E

publication date

  • January 2002