Last week, the ABA Council on the Section of Legal Education and Admission to the Bar (Council) approved a comprehensive revision of the accreditation standards for law schools and moved the package of revisions on to the ABA House of Delegates for approval at its August meeting. Before finalizing the package of revisions, the Council voted on the Standards Review Committee ‘s recommendation to remove the bar on paid externships, a recommendation strongly supported by the ABA Law Student Division. The Council rejected that proposal and voted to maintain the separation between academic externships and paid work. The National Law Journal reported on the Council’s action and quoted Barry Currier, the ABA’s managing director for admissions and legal education, “The council received a lot of comments and decided to not make the change. The fundamental reason is this perceived tension between the obligations of someone who is a paid employee and a student.”
At first blush, paid externships sounds positive — a way to assist law students in reducing their debt while engaging in experiential learning. That point has been argued by the Law Student Division. However, as I discussed back in February, permitting paid externships would create new problems. One of the more likely outcomes was identified in the comment submitted by the Clinical Legal Education Association,
But those employers that are most capable of affording the full cost of a “paid externship” are also likely to accept only externship students who they deem qualified for long-term employment. Reliance on class rank would become the norm for “paid externship” placements. Traditionally, clinical courses have provided opportunities for all students to hone their abilities and prepare for practice. Students who are not at the top of the class have benefited from a chance to develop and demonstrate abilities that do not emerge in an exam. Particularly in light of the legal market and the needs of our students, CLEA is profoundly concerned about a change in the Interpretation that would benefit only students whose rankings are at the top of the class.
Moreover, those employers able to bear the full cost of a “paid externship” would more than likely “shop”among law schools. Faced with the choice of establishing a recruitment program with a school in the top tier or with a school in the third tier, CLEA believes that employers would choose the former. We suggest that revoking Interpretation 305-3 would limit the availability of certain kinds of experience to top-ranking students at top-tier schools and severely restrict students’ opportunities to participate in clinical and experiential education.
In short, CLEA strongly supports the interests of students, by seeking to assure that all students at all schools engage in high quality work, under close and careful supervision. We want more for our students than checking cites and reviewing depositions. We seek a set of standards that ensures high quality clinical legal education, in which supervisors are fully invested in teaching and mentoring students. CLEA encourages mandates that will result in equal access to all courses and for all law students. It is in the best interests of students to preserve a separate market for paid employment in which students are compensated with the fair market value of their work. Permitting the mixture of educational and employment functions will result in the diminishment of value for each, harming both students and law schools.
In its comment, the Society of American Law Teachers (SALT’) raised excellent questions about the the likely, although unintended, consequences,
Having employers pay students also raises difficult questions about control of the assignment and crediting process. Could the employer fire a student for not performing at high enough levels?
Would a faculty supervisor be able to reassign a student if the employer failed to provide adequate onsite supervision if that would have implications for other students working for that employer, with or
without receiving academic credit? Could students refuse tasks assigned by their paying employer if those tasks were not consistent with the learning goals and the placement expectations? Would students be willing to discuss frankly with faculty supervisors any externship site supervision problems if they worried that it could mean displeasing an employer and potentially losing income. These are just
some of the troubling pedagogical issues likely to arise if students earn academic credit for paid employment.
We do need to find ways to reduce law school costs and defray student debt, but not at the expense of providing appropriately designed and equally available academic experiences. The Council made the right decision for legal education and for law students.
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Best Practices for Legal Education 
I have to agree: allowing students to earn academic credit for paid employment raises several troubling pedagogical issues. Beyond the purely pedagogical issues, though, is this side issue of identity: how exactly to define or categorize the student paid by an employer for work the student performs both for the employer and for school credit.
I keep thinking of two National Labor Relations Board (NLRB) decisions that point out one dual-identity side problem of blurring the line between education and employment: Brown University, 342 NLRB 483 (2004) and Northwestern University, 13 RC 121359 ____ NLRB ____ (2014). In both cases, the issue was whether the students were students or employees. In Brown University, 342 NLRB 483 (2004), the Board found that graduate assistants were “primarily students,” and not “employees” after considering four factors: (1) the status of graduate assistants as students; (2) the role of the graduate student assistantships in graduate education; (3) the graduate student assistants’ relationship with the faculty; and (4) the financial support assistants received to attend the university. In deciding the relationship between graduate assistants and their university was primarily an educational rather than economic one, the Board focused in part on the relative time spent on work compared to study. There, students spent considerably more time on obtaining their degree than on work as an assistant. On a slightly different note, the Board in Northwestern University, decided that grant-in-aid scholarship football players were not “primarily students,” but instead were instead employees of the University for purposes of union organization. In both decisions, though, where students were asked to put their efforts was a significant factor in deciding their role. The role of student and the role of employee have different requirements.
There is something inherently entangled about a student paying for or receiving a scholarship for an education that comes in part from an employer who pays the student who earns academic credit. In the intensely busy world of real life practice, client-centeredness and advancing the work of the employer take precedence. In legal education, student learning should come first. The Council made the right decision.