Best Practices for Legal Education

Under proposed ABA Standard 403, future law schools could have only a handful of full-time faculty members.  If those full-time faculty members teach the first year curriculum, the proposed Standard allows for upper level classes to be taught entirely by adjunct faculty as long as the law school ensures the adjunct faculty effectively teach their assigned courses.

As a practical matter, does the proposed standard mean most law schools will become institutions staffed largely by adjuncts?  Probably not.  However, it may mean that for-profit law schools will staff their upper level classes almost entirely with adjunct faculty.

For-profit schools – the beneficiaries of no restrictions on adjunct teaching

If legal education follows the trends seen in undergraduate institutions, for-profit schools are the schools most likely to take advantage of the proposed standard.  A study authored by Phillip W. Magness found that 93% of faculty at for-profit universities are part-time faculty.  This compares with 29.5% part-time faculty at four year public schools, 42% part-time faculty at four year private schools, and 65% part-time faculty at two year non-profit colleges.

At a time when for-profit law schools are facing increased scrutiny for bar pass rates, should the Council on Legal Education be considering a rule change that enables those schools to rely heavily on adjunct faculty?  What impact will an adjunct faculty have on student learning in core doctrinal courses?  These questions should be addressed.

Justification for changing Standard 403 to allow more adjunct teaching

Unquestionably, adjunct faculty serve important roles in law schools.  Practicing attorneys and judges bring a depth of experience into the classroom that full-time faculty may not have.   However, the current Standard already allows for one-third of the upper level classes to be taught by adjuncts.  Why is there a need to allow for more adjunct teaching?

The justification, as stated in the Council’s March 24, 2017 memo, is that elimination of the full-time faculty requirements allows for innovation and flexibility and that the Standard retains the requirement that schools ensure effective adjunct teaching. However, with a smaller subset of full-time faculty, many of whom will have additional institutional service work and have scholarship demands, the ability to also meaningfully supervise a large contingent part-time faculty may not be realistic.

Studies on adjuncts in undergraduate institutions

Of course, not all full-time faculty are better teachers than adjunct faculty.  In fact, on an individual level, often the opposite is true.  The question is what happens when a law school begins to rely heavily on adjuncts for two thirds of the courses students take?

For the past twenty years, undergraduate institutions have moved toward increasing use of adjunct faculty.  Although no definitive studies exist comparing undergraduate student learning outcomes between part-time versus full-time faculty, some studies suggest that student learning declines when students do not have the benefit of full-time faculty teaching doctrinal courses.

For example, a study by Florence Kirk and Charles Spector found undergraduate business students taught by full-time faculty had stronger learning outcomes than students taught by adjuncts.  Another longitudinal  study found that increased use of adjunct faculty correlated to lower undergraduate graduation rates.  However, other studies suggest adjuncts do not negatively affect student learning.

One reason for the Standard change might be that it sets the stage to allow schools to teach more online courses and staff them with adjuncts.  However, at least one study found that full-time undergraduate online faculty produced stronger learning gains than adjunct online faculty.

None of these studies examine the impact of adjuncts on student learning in law school doctrinal courses.  Before moving to a Standard that allows law schools to staff all upper level courses with adjunct faculty, it might be prudent to study law students’ learning outcomes in doctrinal courses taught by adjuncts versus those taught by full-time faculty.

Teaching aside, another study found that, not surprisingly, contingent faculty have less time for class preparation, fewer interactions with students on course and non course related issues, challenge students less, and use less interactive and collaborative teaching methods.  Additionally, adjuncts likely have less access to university teaching resources and less time to take advantage of those resources.

Adjunctification can lead to schools that have few tenured faculty members

The impact of the proposed Standard 403 change  on student learning raises some significant concerns.  Another concern is that part-time faculty are not tenured or tenure-track faculty. In undergraduate institutions, the Magness study notes that the growth in part-time undergraduate faculty resulted in “a decline in the overall percentage (though not in the absolute number) of tenured and tenure track faculty” – with tenure systems “virtually non-existent in for-profit higher education” institutions.

To the extent that tenure ensures both academic freedom and a robust system of faculty governance that protects the interests of students in an era of the monetization of education, a Standard that allows schools to significantly limit, or largely eliminate, tenure and tenure track faculty raises concerns.  This is especially true because the schools most likely to take advantage of a part-time faculty that has little voice in governance are the for-profit schools – schools which may be most likely to put economic interests ahead of educational concerns.

Notice and Comment Period Open Until July 10

 As the ABA Council on Legal Education grapples with a host of issues related to ensuring law students receive a strong legal education, is now the time to deregulate and allow schools to fully staff all upper level courses with adjunct faculty? Are the potential benefits of adjunctification when compared with the potential risks, worth the change?  Should the ABA be enacting regulatory rollbacks that may primarily benefit for profit schools?  All these are questions the Council should address before approving this Standard.

If you have thoughts about the implications of the proposed change to Standard 403 and the potential adjunctification of law schools, written comments or a request to speak at a hearing on the proposed change should be addressed to JR Clark, jr.clark@americanbar.org, by Monday, July 10, 2017.

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