by Robert Kuehn, Washington University School of Law
Unlike the education and licensing requirements for other professions, legal education and admission to the bar in the United States lack a mandated clinical experience in law school. American Bar Association Accreditation Standard 303(b) simply requires that a school provide “substantial opportunities” for its students to participate in law clinics or field placements (what are termed “clinical” courses) where they gain lawyering experiences from advising or representing clients. Under this permissive standard, only one quarter of schools ensure that each student can graduate with clinical training; five provide no opportunities to enroll in any law clinic; one provides positions in clinical courses for only 10% of its students.
Although lawyers agree that students need the training that comes from clinical courses, many legal educators and officials question the feasibility, particularly the cost, of ensuring that every student graduates with a clinical experience. However, the experiences of a growing number of schools and ABA data demonstrate that clinical education can be provided to all J.D. students without additional costs to students.
Many schools have economically provided clinical experiences to all their students for years. The City University of New York requires that each student take a twelve-to-sixteen credit law clinic or externship, with 2015 non-resident tuition the third lowest outside Puerto Rico. Students at the University of the District of Columbia must enroll in two seven-credit clinics but pay the lowest tuition outside Puerto Rico. When Washington and Lee revised its curriculum to require twenty experiential course credits that include at least one law clinic or externship, it doubled the number of positions available to students in clinics. The school’s later review found that its new curriculum, even with the additional law clinic positions, “is not more expensive to run than the prior third year curriculum, nor the current first or second year curricula (indeed, it is less expensive).”
As of the end of the last academic year, thirty-four additional schools required each J.D. student to successfully complete a law clinic or externship prior to graduation; another nineteen guaranteed the opportunity to take a clinic or externship if the student wished. I recently published the results of a study comparing the reported tuition of schools that mandate or guarantee a clinical experience with the tuition of the remaining ABA accredited law schools — Universal Clinical Legal Education: Necessary and Feasible. Using a regression model and controlling for public-private status, U.S. News ranking, and cost of living in the area, there is no statistically significant difference between schools with a clinical mandate and those without. Likewise, there is no statistically significant difference between the tuition charged by schools that guarantee a clinical experience and those that do not. In addition, there is no statistically significant difference in the tuition charged by the fifty-six schools that mandate or guarantee a clinical experience with the schools that do not. Substituting a discounted tuition estimate for the published tuition amount did not change the results—there were no statistically significant differences in the discount tuition charged between private schools requiring or guaranteeing a clinical experience and those that did not.
There also is no evidence that schools adopting a requirement or guarantee subsequently raise their tuition at rates higher than average. Between Washington & Lee’s adoption of its new skills and clinical experience requirement and the second year of its implementation, its tuition increased at approximately the same rate as the median increase for all private law schools, even with the school’s doubling of law clinic positions.
Similarly, the tuition patterns of the twenty-five schools that adopted a clinical requirement or guarantee between 2010 and 2014 show no evidence that these schools raised their tuition as a result of the new educational opportunities. Law schools on average raised tuition 19.7% between 2010 and 2015; schools with a new clinical experience requirement or guarantee only raised tuition an average of 16.6%.
In addition to being financially feasible to adopt, the overwhelming majority of schools could provide a clinical experience today for every student without the necessity of any additional faculty, clinic or externship, or position in existing clinical courses. Based on 2015 ABA data certified by each law school’s dean, after appropriate and thorough inquiry, as “true, accurate, complete and not misleading, 171 schools (84%) reported they had enough existing capacity in their clinical courses to provide every graduate with a law clinic or externship experience, yet only 56 (27%) required or guaranteed that training.
Again reviewing 2015 tuition, the 171 schools who report existing clinical course capacity for all graduating students charged less in tuition, on average, than schools that did not have sufficient available slots, though the difference is not statistically significant. All the data, therefore, on the relationship between clinical courses and tuition indicate that the schools that would need to create additional positions in law clinic or externship courses to provide a clinical experience to all their students need not raise tuition to provide this opportunity.
The failure to ensure that each law school graduate has clinical training can no longer be justified, if it ever could have, on the basis of cost. Instead, the failure lies with the lack of commitment by those who oversee legal education and admission to the bar to changing the status quo. So, while the failure of legal education to provide clinical training for all students can be blamed on a four-letter word, that word is not “cost” but “will”— the lack of will by deans, faculties, and legal education and bar officials to ensure all students receive this much-needed training.
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Best Practices for Legal Education 
Great statistical work Bob. We require a clinic or externship for every student here at Albany Law. Not only have we found are students professionally more prepared – we have climbed to a 90% employment rate but it really helps us with our ABA assessment. For example, we are considering posing survey questions to clinic and field supervisors about our students communication skills as one assessment tool which we can use since ALL students are required to have a clinic experience before graduation.
Spot on, Bob, though I’m thinking that advocates for widespread clinical requirements could advance the ball by targeting not only the accrediting authority (the ABA) and law schools, but also those who establish the rules for admission to the bar in each jurisdiction. Last time I checked, for example, people aspiring to become hairdressers in CT had to prove satisfactory completion of 1500 hours of clinical training as a condition for licensure. By contrast, people aspiring to become lawyers in CT needn’t prove satisfactory completion of even a single minute of clinical training as a condition for admission to the bar. I get why people who’ll be licensed to apply harsh chemicals to, and use sharp implements on, other people’s hair need ample clinical training, but in what universe does allowing people to apply law and procedure to other people’s lives with no clinical training whatsoever make any sense?
Great post, Bob. And I think Cindy (above) has a great point about targeting those who regulate admissions. Ideally, though, there would at least be a recommended model for admissions that could, over time, establish some uniformity across states that law students could rely on as they make major career/life decisions (like where to go to school, what courses/programs to participate in, where to apply for admission, etc.).
There is an additional good–and maybe even a greater one–that comes from more law school clinics and more students participating in them. As we know, most clinics serve populations that cannot afford or otherwise struggle to obtain legal representation. The pro bono or “low bono” services that clinics typically provide gets needed legal representation to people who otherwise might not get it. Moreover, representing a client through a clinic gives each student both practical experience and exposure to the service imperative of our profession.
Excellent writing and helpful as well. It is also encouraging that, lawyers agree that students need the training that comes from clinical courses.
Thank you.