Best Practices for Legal Education

I write from the Hilton Hotel in New York City where the American Association of Law School annual conference has just ended.   The most memorable and riveting session I attended was the ABA panel presentation on proposed revisions to accreditation standards,   I knew full well that this would be an intense session and blogged about the dangers of these proposed revisions earlier in the year  here. .  The proposed revisions will change dramatically what I consider an essential facet of legal education:   the ability to acknowledge, discuss, debate, theorize,and write about  issues that are unpopular.  It will also prevent law faculty from teaching about and working with students representing clients on issues which are unpopular.   I knew this discussion would be intense but I was not prepared for  the stories of our brave peers in the academy which reinforced for me the fundamental importance of academic freedom supported by tenure or security of position.

One professor who self-identified as a female American who is Muslim reported  that she received death threats at work for appearing at a Department of Justice panel on National Security and Muslim issues.   She noted that without tenure and academic freedom, she would be at risk for firing for doing no more than accurately describing the national security legal issues.  She also eloquently explained that as a young, female professor of Muslim religious and cultural identity, she was vulnerable for receiving student pushback and bias for her assuming the position of power and authority over students.  Without academic freedom secured by tenure,  she would fear student bias in evaluations or impressions which could threaten her job security because of her Muslim identity.   A white woman who  taught at a religious school in the deep south,  movingly described her experiences. Without academic freedom supported by tenure, she found that  just raising legitimate legal issues and cases regarding property, same sex marriage, second amendment law, domestic violence or other issues could put her at risk of losing her job.  Had she not been supported by a tenure system which requires “cause” not popularity as measured by teaching evaluations or other factors, her personal and financial incentive would encourage her to avoid  teaching  important legal questions  for fear of back”pushback” .  Professor Terry Smith of Depaul College of Law presented remarks on behalf of the minority law professors section whose members attended in great numbers.  I share with you  his statement here (ABA Statement 1 4 13 ) Another member of the minority law professors section, Professor Anthony Farley,  cautioned that these issues are not “speculative” and spoke about ongoing attacks on academic  freedom, faculty governance, tenure and security of position at a particular school.  Other faculty members discussed how its hard to teach constitutional law in this country without mentioning race but that faculty who do not have security of position will find it difficult because when race is mentioned in a classroom, faculty inevitably suffer in teaching evaluations by students who are uncomfortable talking about race.

Professor Kate Kruse, past president of the Clinical Legal Education Section  noted that for many clinicians academic freedom has only been made real by the current ABA  standard 405 (c) and the  proposed revisions make no attempt to provide a “safe harbor” for the majority of clinicians and legal writing professors who also need to enjoy academic freedom.  There was some discussion by panelists and audience members about an earlier proposal which would have eliminated the hierarchical status types among faculty and questions about why that proposal was never presented for notice and comment.  See earlier blog discussion of the proposals. Past President of the AALS Clinical Section and Fordham Law’s Professor Elizabeth Cooper noted how tenured clinicians are  often asked by untenured  clinical colleagues to make points at public meetings that they are unable to make for fear of impact on their continued employment.

Members of the panel thanked those who testified for good reminders about the negative and practical consequences of these revisions. The Chair of the Council on Legal Education, attended and wanted the audience members to know that he had listened carefully to the concerns.  Past President of the AALS, Professor Leo Martinez and panel members urged  all interested parties to submit written  comments about this controversial proposed revisions on the ABA website found here.

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