Diversity, Equity, and Inclusion in the Experiential (R)Evolution

G.S. Hans

In Assessing the Experiential (R)Evolution, Allison Korn and Laila Hlass have written an excellent, incisive article on the after-effects of the ABA’s adoption of a standard mandating that law schools require J.D. students to complete at least six credits of experiential coursework. Korn and Hlass observe how titanic a shift this was; while less than the 15 credit requirement that some advocated for, it still reflected a six-fold increase from the prior regime.

All those experiential credits have to come from somewhere, and that’s where Korn and Hlass take up their project. They sought to learn, through an extensive survey, how schools have responded to the new ABA requirement. One of their central contributions in their article is determining exactly how law schools have complied with the new standards. While some schools had little work to do to ensure compliance — either because they already required at least six credits of experiential education or  because they already offered enough courses to allow students to fulfill the ABA requirement — many others created new classes, modified existing courses, or engaged in broader curricular reforms.

Who teaches these classes, and who ensures they run properly? Korn and Hlass examine these questions as well, discussing how schools have relied upon the now-prevalent academic administrator — often a Head of Experiential Education, referred to by various titles — to manage and facilitate the experiential curriculum. The responsibilities that flow from such power are significant and likely to grow, particularly if the ABA revisits the credit hour requirement or if other states follow New York’s lead in creating experiential requirements for bar applicants.

Drawing upon the scholarship of Jon Dubin and the CLEA Faculty Equity & Inclusion Committee, of which I am co-chair, Korn and Hlass discuss the potential diversity and equity concerns that might result. While the data their article describes is impressive, it does not include race or gender information on experiential directors and deans. Our committee is working to rectify that gap, as a lack of data has stymied research — and thus reforms. There are many reasons to seek better diversity and representation from experiential administrators, but the visibility of the role, both as a symbol of a law school’s experiential program and within the administration of law schools, is particularly compelling.

One concern I have, which Korn and Hlass mention, involves the diversity and representation issues for instructors who lack employment security. With law schools potentially entering a permanent cost-consciousness mentality, determining how to finance the need for experiential courses will merit special attention from deans and experiential administrators. Though Bob Kuehn has shown that the reputation of clinics as high-cost relative to other law school expenditures is overstated, law schools may still choose to use adjuncts, fellows, and other short-term faculty to satisfy their ABA requirements in a less expensive way. 

Korn and Hlass note Meera Deo’s warning, in her influential book Unequal Profession, that law schools might seek to grow their diverse faculty in the least secure positions. Some experiential faculty are on the tenure-track or have tenured positions, whilst others have more precarious appointments. Adjuncts and fellows have the least job security of instructional faculty — but might present appealing, lower-cost options for expanding experiential offerings, through practicums, labs, or clinical seats. For some law schools mindful of financial concerns, hiring an adjunct to teach Negotiation as an experiential course to 24 students might seem more appealing than creating three tenure-track clinical faculty lines to offer 24 seats on the standard 8:1 ratio for clinical courses. Given Deo’s concerns, we should keep an eye on whether less-secure positions are being used to comply with the ABA requirement, and whether those positions are being disproportionately filled by diverse faculty.

Korn and Hlass have given us all much to think about in this comprehensive and innovative article, which ties together many strands of current debate within the experiential community. I particularly appreciated its generative qualities — I myself came away with many questions and ideas for future research. These issues will require scholarly engagement and discussion from many faculty and law schools in order to chart a just and equitable path forward for instructors, students, clients, and law schools.

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