Best Practices for Legal Education

LAW SCHOOLS
Holding schools accountable
ABA is pushing educators to prove their law graduates can cut it. by Karen Sloan

February 22, 2010

When 3,500 legal educators convened in New Orleans for the Association of American Law School’s annual meeting in January, one topic dominated the conversation: the American Bar Association’s attempts to add “student learning outcomes” to its accreditation standards.

One session on the issue drew 400 attendants, and debate spilled out into hallway conversations and cocktail hours throughout the five-day conference. At a deans-only meeting, top administrators expressed both support and worry about basing law schools’ accreditation on what students learn.

“If the ABA’s goal was to get people’s attention, it has worked,” said Reese Hansen, a professor at Brigham Young University J. Reuben Clark Law School and president of the American Association of Law Schools (AALS).

The buzz over what the ABA has dubbed “student learning outcomes” — the lawyering skills students gain at law school — arose largely because the proposal (.pdf) would be the most significant change to law school accreditation in years. The proposed standards would help solidify a philosophical shift that is taking place throughout legal education that emphasizes the responsibility of law schools to teach students to be lawyers, not just to think like them. Many legal employers also are expressing a desire for law schools to turn out students who are better prepared to practice law upon graduation.

The ABA’s accreditation standards have traditionally focused on so-called input measures — easily quantifiable requirements such as the student-to-faculty ratio, the number of books in the library and the size of school facilities. The standards generally have steered clear of gauging the success of law schools based on the practical skills students need to be successful lawyers. Existing standards measure bar passage rates, but critics of the current accreditation system argue that the bar exam is a very limited assessment tool.

“It’s mostly content-oriented,” said Roger Dennis, dean of Drexel University Earle Mack School of Law. “It asks, ‘Does the student know the law of torts? The law of evidence?’ It doesn’t purport to test in a meaningful way whether a student can perform effective legal research or manage legal work effectively.”

In conjunction with the ABA’s periodic review of accreditation standards, the six-member Student Learning Outcomes Subcommittee is now drafting new rules that would require law schools to identify the skills and competencies they want students to have when they graduate, and come up with ways to measure whether the schools are meeting those goals and fulfilling their stated missions.

SHAPING THE STANDARDS

The current proposal is likely to change significantly before coming up for formal approval by the ABA’s Section of Legal Education and Admissions to the Bar, but legal educators already are offering their input in hopes of helping shape the new accreditations standards.

Legal academics generally agree that setting learning goals for students and holding schools accountable for meeting those goals is a positive development, according to several deans and professors. They don’t agree on what the new standards should look like, however, and the change has prompted much hand-wringing over their potential cost. “I think the concern of deans is twofold,” said Northwestern University School of Law Dean David Van Zandt, who supports the inclusion of student learning outcomes into the accreditation standards. “There’s the worry that this will create a lot more cost for schools and the concern over how open-ended the requirements will be. Will the ABA make us jump through too many hoops?”

Perhaps the thorniest question the ABA and law school administrators now face is how to identify the skills law students should have upon graduation and to decide how specific the new standards should be in requiring the achievement and measurement of those skills.

Several deans interviewed for this article overwhelmingly favor accreditation standards that give law schools the autonomy to develop their own goals and measurements, in part because institutions have different missions and orientations. A one-size-fits-all lawyering skill-set determined by the ABA would be too constrictive, several deans said.

“A large group of deans will take the position that adopting their own learning outcomes is less offensive than having those outcomes determined by an outside source,” said New York Law School Dean Richard Matasar, who is president of the American Law Deans Association (ALDA). “They want standards that offer as much room for experimentation as possible.”

Matasar sees some drawbacks to giving law schools too much autonomy in setting learning goals and developing measures. Law schools might feel compelled to set goals that are easily quantifiable, such as bar passage and employment rates. Those statistics are already tracked by law schools and would not necessarily spur the practical-skills training that the ABA wants to see.

The Society of American Law Teachers (SALT) is advocating for the new accreditation standards to include a core set of skills schools must teach students. The organization would like the required student skills to include the ability to counsel clients, negotiate, perform investigations, work collaboratively and communicate effectively with people from diverse ethnic and cultural backgrounds, said Andrea Curcio, a professor at Georgia State University College of Law and the head of a SALT subcommittee that is examining the issue. The ABA should leave schools room to set their own learning goals beyond those universal skills, she said.

“I think there has to be some agreed-upon skills and values that we want all lawyers to have,” Curcio said. “Delineating the range of skills that are universal enough to export to all law schools and their students is the most difficult part to get right.”

The ABA subcommittee charged with drafting the student learning outcomes standards is looking to strike a balance between the factions of educators who want some specific skill requirements and those who think schools should devise their own, said chairman Steve Bahls.

“It’s likely that some skills will be included, but we have heard through formal and informal comments that people want flexibility,” said Bahls, who is the president of Augustana College in Rock Island, Ill., and is a former dean of Capital University Law School.

The current ABA proposal, which is likely to be revised numerous times before it is finalized, offers two different alternatives on professional skills. The first option leaves it up to schools to identify the skills necessary for “effective, responsible and ethical participation in the legal profession.” A second option requires law students to graduate with skills in a number of specific areas including appellate advocacy, alternative methods of dispute resolution, counseling, interviewing and negotiation.

Some members of the drafting subcommittee are pushing for specific skill-set requirements, said member David Yellen, dean of Loyola University Chicago School of Law. However, he doesn’t see the final draft including such a list. “We don’t want to make standards where the ABA comes in with a heavy hand and dictates what schools must do,” he said.

THE GREAT UNKNOWNS

How law schools would go about measuring students’ lawyering skills, and the cost of those assessments, is yet another source of debate among the ABA, administrators and professors. The practical skills on which the ABA is focused, such as counseling and managing legal work, tend to be more difficult and resource-intensive to measure, several deans said.

“What these measurements would look like is one of the great unknowns,” said Hansen, the AALS president. “To those who are concerned, this would require a very substantial investment in resources to do something many people have grave doubts can be done anyway.”

Costs would be a major downside if the new assessments require schools to hire outside statisticians or educational psychologists, said Drexel Dean Dennis. Those costs would be significantly lessened if law school faculties are able to devise and carry out the assessments themselves, he said.

The cost of the proposed standards is a touchy subject with deans, in part because many schools have faced cuts in state funding, declining income from endowments and other financial losses amid the recession. Administrators also are under intense pressure to step up career-services efforts because of the dismal job market and contain ever rising tuition. An unfunded mandate from the ABA for student learning assessments could drive up tuition costs for students even more, Matasar said.

It’s too early to determine what costs schools would face under the proposed standards, said Hulett “Bucky” Askew, the consultant on legal education of the ABA Section of Legal Education and Admissions to the Bar. He added that cost is an issue the ABA is considering as it moves forward.

EXISTING TENSIONS

Along with cost concerns, several deans noted that any emphasis on practical skills in new accreditation standards could exacerbate existing tensions between clinical faculty and the so-called stand-up faculty, who teach more traditional law courses.

“It’s a common concern that the standards revisions may push the curriculum toward practical skills training at the expense of the analytical training that law schools also provide,” Hansen said.

By contrast, SALT sees the new standards as a potential catalyst for greater coordination between the clinical and podium sides of law school faculty, Curcio said.

The ABA and law schools are relative latecomers to the student learning outcomes party. Many other accrediting agencies have moved to outcome measures during the past decade, including those that oversee business, architecture, pharmacy and dental schools. The Accreditation Council for Pharmacy Education began implementing student learning outcome-based standards 10 years ago and decided to phase in the new rules over seven years, said Executive Director Peter Vlasses.

“Over time, we expected movement and learning,” Vlasses said. “Some institutions went after it whole hog, while others were reluctant. Most fell somewhere in the middle.”

Despite some initial resistance among pharmacy schools, the new standards have been a positive change and have forced them to think closely about how and what they teach students, he said.

Several law school deans said they like the idea of phasing in new student learning outcomes standards because it would give schools time to experiment with setting goals and establishing assessment methods. “Let’s give ourselves some breathing room in the early years,” Matasar said.

Several deans are urging the ABA also to revisit and pare back the facilities-focused input measures standards, rather than simply tack new student learning outcome standards onto the existing ones. Askew said an analysis of the input measures could be undertaken later as part of accreditation-standards review process. Any new standards would have to be approved by the Council of the ABA’s Section of Legal Education and Admissions to the Bar — the section’s governing body — and that process could stretch into 2012 or 2013, he said.

Although it may take months or even years to finalize the new student learning standards, most legal academics are confident that some version will be adopted.

“It’s a foregone conclusion,” Curcio said. “The open question is whether they create meaningful educational changes, or whether they just create more paperwork. In all honesty, it could be turned into a bean-counting nightmare, depending on how it’s designed.”

Karen Sloan can be contacted at ksloan@alm.com.

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