On Experiential Education

By: Luz Herrera

Allison Korn and Laila Hlass’ research, documented in Assessing the Experiential (R)evolution, offers a revealing  snapshot of how law schools have adapted to the ABA accreditation standards that requires six units of experiential education. The survey data provided by experiential educators from 126 law schools in 2018, provide the basis for a series of recommendations the authors make about what law schools should consider as they continue to grow and maintain their experiential program.  One of the many questions they ask us to consider is whether law schools are valuing teaching loads and providing sufficient status for experiential instructors to be sustainable?

The issue of status in experiential education has long been, and continues to be, a difficult subject for law schools, particularly for clinical faculty. In 2000, the AALS president formed a Committee on Good Practices Regarding Clinical Faculty that was charged with convincing law schools to integrate clinicians “as full participants in the legal education enterprise.” The committee, however, did not issue any recommendations or conclusions.  In 2005, the AALS Section on Clinical Legal Education took up the charge and appointed a Task Force on the Status of Clinicians and the Legal Academy to examine clinician status in U.S. law schools and “to recommend appropriate models for clinical appointments within the legal academy.” After reviewing CSALE survey data, the Task Force found various types of positions for clinicians but overall little parity between them and non-clinical faculty. After additional input at town halls and balancing the various views and realities of law schools, the Task Force set forth four core principles to guide status decisions:

“(1) Clinical education is a foundational and essential component of legal education;
(2) The legal academy and profession benefit from full inclusion of clinical faculty on all matters affecting the mission, function, and direction of law schools;
(3) There is no justification for creating hierarchies between clinical and non-clinical faculty; and
(4) The standards for hiring, retention, and promotion of clinical faculty must recognize and value the responsibilities and methodologies of clinical teaching.”

Ultimately the Task Force concluded that the gold standard that exemplified these principles requires clinical faculty to be full-time and placed on a unitary tenure track since tenure offers the greatest security of employment. The Task Force recommended that at least a core group of full-time clinical faculty should be on the unitary tenure track in order to have similar status that ultimately translates into academic freedom, in addition to full voting and governance rights. It urged law schools to develop standards for hiring, promotion and retention that account for the responsibilities and approaches that clinical faculty employ. The Task Force found that separate clinical tenure and long-term contract models were inferior because they usually provided less security and governance rights. It also urged that short term positions and fellowships be limited.

As clinicians advocated for greater status and inclusion in law schools, the American Law Deans Association advocated for greater control on hiring decisions. Control included resisting changes to accreditation standards that required security of position for clinical faculty. The history of the resistance is well documented by Peter Joy in his article, ABA Standard 405(c): Two Steps Forward and One Step Back for Legal Education. Ultimately the ABA Standards Review Committee amended ABA Standard 405(c) to require law schools to offer “full-time clinical faculty members a form of security of position reasonably similar to tenure.” Standard 405(c) permitted law schools to require clinical faculty to have similar responsibilities as other full-time faculty members but still allowed law schools to build experiential programs that included short-term appointments as long as the clinical program was primarily “staffed by full-time faculty members.”

Despite efforts to improve the status of clinical faculty and promote more experiential education, the growth of experiential education at ABA law schools seems to have only further cemented the legal profession’s caste system at most law schools. As Bob Kuehn’s recent blog post explains, the most recent survey data by the Center for the Study of Applied Legal Education (CSALE) shows a reduction in clinical tenure and tenure track positions in the last twelve years. Since 2010, clinic and externship hiring has largely been for contract positions and within the top ranked 25 law schools, tenure is almost non-existent for this group.

Former AALS President Dean Darby Dickerson recently penned a call to Abolish the Academic Caste System within legal education. In her essay she calls on law schools to acknowledge the contributions of non-tenure-track faculty by (1) converting faculty to tenure lines or develop processes that permits these non-tenure line faculty members to convert to tenure-line status; (2) calling on deans to equalize pay of non-tenure track faculty; and (3) shift the law school culture to show more respect for non-tenure line faculty as a way of prioritizing community and not upholding the caste system. She explains that non-tenure line faculty often contribute much more service and teaching than their colleagues. Dean Dickerson recognizes that often these faculty members are not provided equal voice in faculty governance or hiring, given similar faculty development support and the physical location of their offices are often removed from the law school’s core operation. She explains that salaries, job security, and respect for these faculty members are far less equitable. Dean Dickerson also acknowledges that not all non-tenure line faculty want tenure.

The  last CSALE Survey supports the view that “insufficient faculty status” is not the top priority for clinicians as it was listed by only 33 percent of the law school clinic respondents and 23 percent of field placement respondents as the major challenge to their program. However, other CSALE responses that ranked higher in the category of major challenges reflect a lack of institutional investment in clinical programs, overburdened clinical personnel, and few clinical faculty lines.

In their article, Korn and Hlass recommend that law schools ensure security status and value teaching loads of clinical faculty. They also encourage us to think about providing support and professional development for clinicians. What are our options when the trend is to hire more contract faculty and adjuncts to teach clinics, externships, and other experiential programs? How do we do that when many deans view the smaller class enrollment of clinics and externships as not equivalent to grading finals in a large doctrinal class? When our academic deans tell us that teaching first year classes is a good marketing opportunity to ensure greater visibility and therefore higher clinic enrollment? When externship expansion is preferred over clinic development because it is much cheaper to bring in adjuncts and convert staff positions to lecturer status?

Security of position is essential for any experiential dean to be effective. There are still many deans who are unwilling adopters of experiential education and who view it as too expensive an investment that does not further the academic integrity. Tenure, whether through the traditional route or a similar clinical track, should offer sufficient security of position to permit the head of an experiential program to fully participate in hiring decisions and to have disagreements with their deans – whether that is the main dean or the academic dean. An experiential dean often has to work with program directors and faculty with a variety of statuses. They must have enough status to feel safe telling a senior colleague with tenure that their seminar cannot be classified as experiential just because they want larger enrollment. However, the success of any experiential programs depends on the sustainability of all those who work in those programs, not just its leader.

It is critical to have a cohort of other faculty teaching in clinic with security of position who can help educate the larger community about the value of our work. Staff attorneys, adjuncts, and fellows are fungible. They can help build a program but there is little security for them. So it is important to be clear when advertising for soft money positions that their role will be different than other faculty as a result of funding and the existing caste system in legal education. To be clear, there are few jobs in our country that offer as much security of employment as some of our jobs. Still, when most around you have security and you don’t, it is something you notice, even if others insist it doesn’t make a difference. 

Having a cohort of clinicians with status at any institution helps facilitate the program’s growth and increases the likelihood of hiring for the program. Still, problems arise when unitary tenure track clinicians are given higher teaching loads than others. A tenure line professor on a unitary track is often expected to meet the same scholarship requirements as their colleagues who do not have to recruit clients, educate and train students to do client work, manage caseloads, and transition client matters at the end of the semester. While there are some schools that have little disparities between faculty on clinical tracks and those on traditional tenure lines, most have clear distinctions just by the virtue of a different title. It is important to provide full-time clinical faculty, regardless of their status, with a manageable workload and plenty of faculty development opportunities such as pre-tenure faculty leaves, summer coverage, administrative staff support, co-teaching opportunities, and staff attorneys.  It is also helpful to support clinical faculty, whether they have status or not, with continuing education and helping them increase their profile in the local and law school community.

Valuing teaching loads is much harder to offer a prescription for because all law schools have different standards and there is not sufficient understanding amongst our non-clinic colleagues of all that goes into teaching a clinic. Still, it is important to insist on fairly balanced teaching loads for clinicians and to provide newer faculty some time to develop their clinic before launching. It is hard to explain to colleagues who teach 50-80 student classes that a clinic of 8-10 students is more or equivalent work. But few of them would trade with us, if given the chance.  

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