The Disparate Treatment of Clinical Law Faculty

By: Robert Kuehn, Washington University School of Law

In her recent presidential message, Abolish the Academic Caste System, the president of the American Association of Law Schools (AALS) called on law schools to address the caste system within law faculties by providing parity in security of positon and salary to non-tenure/tenure track faculty, such as the overwhelming majority of law clinic and externship instructors.[i] Data from the just completed Center for the Study of Applied Legal Education (CSALE) 2019-20 Survey of Applied Legal Education of  95% of law schools and 1,300 law clinic and externship instructors show widespread disparate treatment of clinical instructors (i.e., law clinic and externship instructors) and a lack of progress in providing parity between those who teach in law clinics and externships and those teaching doctrinal courses.[ii]

In 1998, 46% of clinical teachers were in tenure or tenure-track positions.[iii] Yet as the chart below indicates, the percentage of clinical faculty in tenure/tenure track positions, even when including lesser status clinical/programmatic tenure positions, has declined to just 29%, and decreased by more than 30% over just the last 12 years (temporary appointment clinical fellows excluded from all tables).


  Source: CSALE 2019-20 Survey of Applied Legal Education

Though there have been notable exceptions at a few schools, law clinic and externship hiring has disproportionately been for contract positions since the 2010 downturn in law school applications and accompanying financial challenges.

This increasing pattern of hiring non-tenure track clinical faculty can be seen below when comparing employment status to years of clinical teaching. Forty-six percent of clinical faculty teaching more than 12 years are in traditional or clinical/programmatic tenure or tenure-track positions. In contrast, only 23% of those hired within the last four-six years and just 16% of those hired in the last three years are in tenure/tenure-track positions. Although some clinical faculty hired into non-tenure-track positions may be permitted to move later into tenure-track positions, those limited instances cannot account for the increasingly lower status among more recently hired clinical instructors.


Source: CSALE 2019-20 Survey of Applied Legal Education

Non-tenure status has consequences for clinical faculty, beyond the limited participation in faculty governance and lower prestige that generally come with appointments other than traditional tenure. The table below compares the salaries the over 70% of law clinic and externship faculty not tenured/tenure track with the salaries reported by doctrinal faculty at the same schools. These clinical faculty are paid, on average, $30,000 per year less than their doctrinal colleagues at similar points in their careers. Even when salaries of clinical faculty with traditional or clinical tenure/tenure track are included in the calculations, clinical faculty on average make over $20,000 less than their doctrinal colleagues.

Sources: CSALE 2019-20 Survey of Applied Legal Education; 2018-19 SALT Salary Survey

The disparate treatment of clinical faculty in tenure appointments is most pronounced at schools ranked higher in the U.S. News annual law school rankings. Among schools with at least half of their clinical faculty in tenure/tenure-track positions, only one school ranked in the top 25 primarily appoints clinical faculty to traditional tenure-track positions, yet over 36% of the 50 lowest ranked schools provide this status to their clinical faculty.

Source: CSALE 2019-20 Survey of Applied Legal Education

Some law school clinical education programs even treat types of clinical instructors differently, providing less security of position and salary to those who teach in externships. CSALE survey data show that externship instructors are less likely to have traditional or clinical tenure/tenure track when compared to their law clinic peers (25% vs. 38%) and are almost 15 times more likely to be primarily in an administrative position with only occasional teaching responsibilities and sometimes little training in externship pedagogy.

Source: CSALE 2019-20 Survey of Applied Legal Education

Salaries of externship instructors also are considerably lower, with median annual salaries, on average, $20,000 less per year than those of law clinic instructors:

Source: CSALE 2019-20 Survey of Applied Legal Education

The latest CSALE survey shows that in spite of occasional stories about a school adopting tenure for its clinical faculty, the AALS president is right ─ the academy remains highly caste-like in its disparate treatment of clinical faculty, especially at higher ranked schools and even within clinical education programs at some schools. Indeed, if anything, progress toward parity appears to be slipping as an increasing percentage of new teaching positions in law clinics and externships are without the security of position and salary of doctrinal faculty.

The AALS has moved lately towards an Executive Committee comprised entirely of deans and former deans. If the members of the Executive Committee support their president’s call to end the caste system, they could act to do so at their own schools and call upon their fellow deans across the country to do the same.


[i] Darby Dickerson, Abolish the Academic Caste System, AALS News (Fall 2020), at https://www.aals.org/about/publications/newsletters/aals-news-fall-2020/presidents-message-abolish-the-academic-caste-system/.

[ii] Center for the Study of Applied Legal Education (CSALE), 2019-20 Survey of Applied Legal Education (2020), at https://www.csale.org/#results.

[iii] Richard K. Neumann Jr., Women in Legal Education: What the Statistics Show, 50 J. Legal Educ. 313, 328 (2000).

[iv] 2018-19 SALT Salary Survey, SALT EQUALIZER (Nov. 2019), at https://www.saltlaw.org/wp-content/uploads/2015/03/SALT-salary-survey-2019-final-draft.pdf.

Davida Finger (Loyola New Orleans) and Melanie Daily DeRousse (Kansas) Begin Work as Editors for Best Practices in Legal Education Blog 

As Mary Lynch announced in her July 13, 2020 farewell post, we are taking over as the editors of the Best Practices in Legal Education Blog. Mary’s post tells us about the Blog’s birth and growth out of CLEA’s Best Practices Committee’s work on the Best Practices in Legal Education book and the collaboration that led to the publication of Building on Best Practices.

Now that we have spent a little time looking back, we are excited to share a little about who we are and where we are headed.

Who we are:

  • Davida Finger is a Clinic Professor and Associate Dean of Students and Experiential Learning at Loyola New Orleans College of Law. She founded the Community Justice section of the Law Clinic where she and her clinic students have represented on housing, special education, and other civil rights matters with a focus on movement lawyering. Davida received the Bellow Scholars award from the AALS Clinical Association for her empirical research on New Orleans eviction geography that documented the discriminatory impact of evictions. She is the founding director of the College of Law’s Incubator Program for solo practitioners working for social justice. Davida recently completed a 2-year term as the president of the Society of American Law Teachers (SALT) and is currently teaching the externship course.
  • Melanie Daily DeRousse is a Clinical Associate Professor and Director of the Legal Aid Clinic at the University of Kansas School of Law. Melanie began work at KU in 2015 after she responded to a job posting that invited essays on how candidates would reinvent the then-47-year-old clinic by applying the principles in Best Practices in Legal Education. In her second term as a CLEA board member, she co-chairs the Best Practices in Pedagogy committee and serves on the Elections committee. She presents on legal education pedagogy with other Best Practices committee members at regional and national conferences, and also recently worked on the planning committee for CLEA’s 2020 New Clinicians’ Virtual Conference. Her clinical work focuses on juvenile justice, criminal defense, and child welfare; outside the clinic, she teaches and writes about family law and engages in university work on promotion, tenure, and pay equity, among other things. Before joining KU Law, Melanie represented survivors of intimate partner violence in family law matters through Legal Services of Eastern Missouri. She was a racial justice fellow in the inaugural class of advocates through the Shriver Center’s Racial Justice Institute.

Where we are headed:

It is humbling, to put it mildly, to be at the helm of such an insightful and collaborative group of contributing authors. As Mary mentioned, this Blog continues to evolve and spark “collaboration on steroids” as new ideas are generated, implemented, assessed, and modified. It is a powerful home for vetting ideas about teaching. We hope to continue to nurture the imaginative, inquisitive, and aspirational tone the Blog has cultivated over the years. As we focus our work as editors, we note the emergence of three main content areas worth highlighting:

  • Teaching justice by doing justice work: we will highlight efforts around inclusion, diversity, and radical change to upend structural racism in legal education and academic institutions;
  • Pedagogical (r)evolution: we will continue the Blog’s intense discussion of legal education reform and seek to emphasize emerging ideas about how we teach in ever-evolving classrooms with a priority on justice ideals; and
  • Large scale policy changes affecting teaching: we will share advocacy around big-picture issues in legal education – changes in ABA standards, forthcoming CSALE studies, structural changes in higher education that impact legal education.

In addition, we hope to use the tools of social media to encourage greater engagement in these discussions and feature prominently the voices of colleagues teaching diverse topics across the legal education curriculum. We welcome new authors, voices, and comments as we seek to broaden the conversation. CLEA is self-reflective and self-critical in understanding that, as an organization, it must do more to amplify and expand all manner of justice including through this Blog.

And, finally, a thank-you and a goodbye:

Finally, thank you to Mary Lynch, founder and 13-year editor of the Blog. We knew from reading the Blog that she was a very busy and involved editor; but during this transition, we had the first opportunity to see just how much she does behind the scenes to keep the conversation interesting, interactive, inclusive, and meaningful. She has been as thoughtful and supportive in this transition as could be possible. We are grateful that she will stay on as “Editor Emeritus” as the Blog continues to grow. Mary, thank you for all that you have done to create a space to engage all legal educators in a thoughtful and productive discussion about why, how, and what we teach, and why it matters.

 

Building A Solid Foundation Before Week 1

By Louis Jim, Assistant Professor, Albany Law School

One year ago, I began teaching Introduction to Lawyering, which is the required 1L course on legal analysis, communication, and research at Albany Law School. The textbook I used, like many “legal writing” textbooks, provided information about the types of legal authorities (primary or secondary) and weight of those authorities (mandatory or persuasive). And any textbook about legal authorities would, of course, also provide information about this nation’s three-tiered court structure. In class, I discussed those concepts, showed flow charts illustrating the structure, and distributed a map of the circuit courts of appeals. But I failed to assess whether my students truly understood the significance of the three-tiered structure and how that significance related to their other first-year classes.

This past summer, I attended the AALS New Law Teachers Workshop, where a number of presenters inspired me to think about new methods to assess whether my students understand the foundational needed to succeed in the first year and beyond. In response, I made two significant changes to my course design this semester. First, I required my students to complete weekly reflections in the last ten minutes of our Friday class.[1] The students must tell me two things they learned in my class and two things they want to learn more about in class. Students may then leave comments or ask questions on any topic even if the comments or questions are not related to law school.

Second, rather than simply discussing court structure with them, I created an in-class activity to assess whether students understood the significance of that structure. The students completed this activity at our first Friday session, which was the last day of their first week of law school. I rewrote a hypothetical that was originally written by my colleague at Albany Law School, David Walker, Assistant Professor and Director of the Schaffer Law Library, for a quiz in his advanced legal research class. A copy of the hypothetical can be found here:

The students spent the first ten to fifteen minutes of class reading the hypothetical. I then asked a series of multiple choice and short answer questions using Poll Everywhere based off the hypothetical. A copy of those questions can be found here:

I provided a link to the webpage where students would respond the poll’s questions, and students answered the questions using their laptops. Their anonymous responses were displayed on the large monitors at the front of the classroom. As we worked through the questions and hypothetical, I defined common terms that students would encounter in the cases they read for their doctrinal classes (e.g., motion, ruling, opinion, holding, judgment, etc.). I also distributed an outline that allowed the students to write the definitions and take other notes. A copy of that outline can be found here:

I hid the responses until at least three-quarters of the class had responded as I did not want a student’s response to be influenced by their classmates’ responses. By displaying their answers anonymously, every student could participate without fear of embarrassment, a fear prevalent in the first few weeks of law school. By using Poll Everywhere, the students who did not choose the right answer also saw that they were not alone. For each question, we also discussed each of the answer choices and why a particular choice was correct and the other ones were incorrect. Because everyone had to answer the questions, everyone—and not just the victim of the cold call—stayed engaged.

Because we completed this activity on the first Friday that we met, the students also completed their first reflection on that day. One student had commented in her reflection that she wished that we had completed that activity before the first week of classes began because it gave her a better understanding of the assigned case law in her doctrinal classes. I met with this student that following Monday, and she said she had a better understanding of her Week 2 reading assignments in her doctrinal classes after having completed the activity. Another student added that the activity filled many gaps in his understanding of the material in his doctrinal classes. Later that week, another student told me in person that she also wished we had completed the activity before the first week of classes.

As attorneys and/or professors, we often take for granted our understanding of the hierarchy of authority of the court system and our understanding of the terminology common in case law. Those just starting law school, however, may have never read a case before. But more often than not, the new law students’ first law school assignment requires them to read a case (likely more than one) and be prepared to discuss the case (or cases) on the first day of class. Those readings contain terms and concepts that new law students may have heard on television or read in a newspaper, but most new law students lack an understanding of how those terms and those concepts relate to the substantive law. Students may then feel discouraged in the first week because they don’t understand the concepts that seasoned attorneys take for granted. Although law students should and must develop skills in synthesizing rules and applying them, as educators, we must provide a solid foundation so that students can start developing those skills. With that in mind, next year, I hope to complete this activity even earlier so that students begin Week 1 with a solid foundation.


[1] This semester, I teach two sections of Lawyering, and each section meets once on Wednesday and once on Friday. On weeks in which we don’t have time to complete the weekly reflection in class, the reflection becomes an optional assignment that students can email to me. Much to my surprise and delight, some students completed the optional reflections too.

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