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University of Miami Law Review

Abstract

Over the past decade, the subject of “safe spaces” on college and university campuses has received much press. As originally conceived, the term “safe space” refers to an environment—often a physical space—in which “everyone feels comfortable expressing themselves and participating fully, without fear of attack, ridicule, or denial of experience.” And while this original conception may not seem controversial, the meaning of “safe spaces” as applied to higher education classrooms is a subject of ongoing vigorous debate. On one side of the debate are those who believe that safe spaces foster learning by making it possible for students to be exposed to diverse perspectives in an atmosphere of honesty, respect, and empathy. On the other side of the debate are those who believe that safe spaces threaten academic freedom by requiring professors and students to refrain from expressing any viewpoint or idea that might be threatening or “triggering” to others.
Student demand for safe spaces has been on the rise for decades, and there is reason to believe that with the arrival of Generation Z (“Gen Z”) students on college and university campuses, the demand will increase. As a group, Gen Z students tend to be more anxious than their predecessor generations, and with the confluence of the COVID-19 pandemic and the racial unrest of 2020, they have much to be anxious about.
Moreover, many Gen Z students have become accustomed to being protected from difficult situations (some refer to them as “coddled”). But at the same time, Gen Z is widely recognized as being more activist than their Millennial predecessors, on issues ranging from racial justice to human trafficking to climate change. It stands to reason that faculty, staff, and administrators in the higher education setting will need to figure out how to provide a learning environment that balances Gen Z students’ insistence on addressing difficult social issues with their desire to do so in a safe space.
But what exactly is a safe space? And should creating safe spaces be a goal of institutions of higher learning?
Those questions take on added weight in the law school context because of the key role of the law in shaping society. Unlike undergraduate education, legal education is specifically designed to equip students to enter the profession, where they will encounter myriad situations that require them to step out of their comfort zones. This has perhaps never been truer than in 2021, as racial and social justice issues have risen to the forefront of the American consciousness at the same time that our country has experienced unprecedented political polarization. It is in this environment that lawyers are increasingly being called on to step forward and use their legal training to effect systemic change. Thus, as legal educators train future lawyers who will serve “on the front lines,” it is critical that difficult racial and social justice issues be discussed in law school classrooms. So the question becomes, can law school classrooms ever be truly safe spaces?
This Article provides one context within which law schools can examine how best to create an environment, both in and out of the classroom, that maximizes student learning in an age where it is more important than ever that difficult racial, social, and global issues be raised and discussed. The Article begins by tracing the development of the safe spaces movement and discussing how the traditional type of safe space manifests in today’s law schools. It then highlights the many and sometimes-competing understandings of the nature and role of safe spaces and identifies some of the criticisms of the safe spaces concept, especially as those criticisms relate to “intellectual safe spaces” within the law school classroom. The Article then shifts to a discussion of the relatively new concept of “brave spaces,” tracing the development of that movement and arguing that the brave space concept better describes the optimal law school classroom. Finally, the Article suggests some strategies law school administrators, professors, and students can use to begin creating classrooms that are both safe and brave spaces, able to foster the dialogue needed to equip students to become lawyers who are agents for social change.
In this Article, I do not advocate doing away with safe spaces as they were originally intended to function. Rather, I suggest that law schools should be careful to balance the need for places where marginalized students can “retreat from the very real threats and demands they face by their very existence”—the true safe spaces—with the need to encourage and facilitate classrooms where students can process new and uncomfortable ideas productively—brave spaces.

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