Quite Moving but Frightening Testimony at AALS Conference

Posted on January 5, 2014 by Mary A. Lynch

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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OBAMA COMMENT ON 2 YEARS OF LAW SCHOOL

Posted on August 24, 2013 by Mary A. Lynch

It is not surprising that President Obama wants to decrease the cost of higher education and make it more affordable for the average American family. Nor is it surprising that he floated the idea of decreasing cost by decreasing the number of years a law student has to PAY for school as reported by the New York Times here.    Without a full understanding of all the issues, that often appears to be a sensible idea.  What is surprising is that the President confuses unpaid interning with a “clinical experience.” As we know from the medical and other professional settings, clinical experience is NOT the same as allowing   barely trained law students to “HAVE AT IT” in a practice setting. Nor is every environment appropriate for clinical training and supervision. The whole point of “clinical education” is supervision, feedback, mentoring, and learning to learn from observation, experience and mistakes.

Another problem with the President’s “shoot from the hip” comment, is that the very reason that new law students can’t find jobs is the same reason today’s law firms are NOT appropriate for the kind of mentoring which was done in days of yore. As a member of the New York State Task Force on the Future of the Legal Profession and a chair of the Education and Training Subcommittee, I learned from legal employers and their clients that the market-driven, competitive nature of private industry today has created a situation in which clients no longer want to pay for the on-the-job training of new attorneys. More senior attorneys are so tightly time-managed relative to billable hours that they have significantly less hours and energy to mentor, supervise and help form new attorneys. That’s where law schools have added value for graduates and provided the support and individual attention that tomorrow’s lawyers need through clinical programs (both in-house and in the field). If the President wants to add his significant heft to this debate, he should do so in a more nuanced and effective manner than making an off the cuff comment.

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ABA COUNCIL ELIMINATES ANY MEANINGFUL SECURITY OF POSITION FOR FACULTY AND TURNS ITS BACK ON EXPERIENTIAL FACULTY

Posted on August 13, 2013 by Mary A. Lynch

As reported last week here, the ABA Council on Legal Education met in San Francisco to review proposed revisions to law school accreditation standards.  The ABA reviewed four proposals sent to them by the Standards Review Committee (which I described in an earlier post here) and which were intended to address  faculty competence, academic freedom and governance rights.   The Council sent out for notice and comment two of the four proposals. Some commentators have suggested that one of the adopted proposals includes some security of position and the other does not. However, a closer look suggests that neither proposal affords any meaningful security of position.  see National Law Journal  

The alternative that mentions security of position states that:

“(d) A law school shall afford all full-time faculty members a form of security of position sufficient to ensure academic freedom and attraction and retention of a competent full-time faculty (emphasis added).”

At first glance, I optimistically thought “Maybe ensuring a competent full-time faculty would require something beyond at-will employment?” However,  I was reminded by a professional colleague that this proposal is identical to the current provision for legal writing professors, which has been interpreted to permit at-will contracts as long as the teachers are “competent,”  Undeterred in my optimism, I thought “Well ensuring academic freedom certainly needs to ensure some job security especially for folks like clinicians who have been attacked repeatedly for representing the powerless against the moneyed members of our society, right?”  However,  the ABA interprets that same language  in the clinical context to permit one-year renewable contracts,  as long as the institution has a “policy” on academic freedom,

As Amy Poehler would say “Really!1?!  Really!?!”    Is that really the kind of job security that will fill you with confidence in advocating  on behalf of seemingly powerless clinic clients or articulating unpopular but important legal positions?   And what about all this talk from the ABA and the profession about how students need to be better prepared for practice and the profession.   “Really!1?!  Really!?!”  How is that going to happen when you de-value those in the academy who teach through supervised practice ?   CLEA President Kate Kruse got it spot on when she wrote on the clinic listserv,

“Because tenure is now and is likely to remain the norm only for doctrine professors, both of these provisions protect current faculty power relationships and threaten the presence in legal education of teachers specializing in experiential education.’

That is not good news for legal education, law students or future clients.  REALLY.

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More on CA Bar Task Force proposal

Posted on July 2, 2013 by Michele Pistone

This is from the California Bar Task Force on Admission Regulation Reform: Phase 1 Final Report. Our proposed recommendations, in brief overview, are as follows:

• Pre-admission: A competency training requirement fulfilled prior to admission to practice. There would be two routes for fulfillment of this pre-admission competency training requirement: (a) at any time in law school, a candidate for admission must have taken at least 15 units of practice-based, experiential course work that is designed to develop law practice competencies, and (b) in lieu of some or all of the 15 units of practice-based, experiential course work, a candidate for admission may opt to participate in a Bar-approved externship, clerkship or apprenticeship at any time during or following completion of law school;

• Pre-admission or post-admission: An additional competency training requirement, fulfilled either at the pre- or post- admission stage, where 50 hours of legal services is specifically devoted to pro bono or modest means clients. Credit towards those hours would be available for “in-the-field” experience under the supervision and guidance of a licensed practitioner or a judicial officer; and,

• Post-admission: 10 additional hours of Mandatory Continuing Legal Education (“MCLE”) courses for new lawyers, over and above the required MCLE hours for all active members of the Bar, specifically focused on law practice competency training. Alternatively, credit towards these hours would be available for participation in mentoring programs. 

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CLEA calls on ABA to require 15 credits of experiential learning

Posted on July 1, 2013 by Michele Pistone

Kate Kruse, President of the Clinical Legal Education Association, reports that CLEA called on the ABA Council on Legal Education and Admission to the Bar to expand accreditation requirements to include 15 credits in experiential learning.  

Today, the Clinical Legal Education Association (CLEA), the nation’s largest association of law professors, formally petitioned Council of the American Bar Association’s Section for Legal Education and Admissions to the Bar to amend its law school accreditation standards to require every J.D. law student to complete the equivalent of at least 15 semester credit hours after the first year of law school in practice-based, experiential courses, such as law clinics, field placements, or skills simulation courses, with at least one course in a law clinic or externship. 

Repeated ABA studies have shown the need to enhance significantly the professional skills training of students in law schools. However, the Section has done very little to address these persistent calls for reform. Current law school accreditation standards only require a single credit of experiential learning out of an average of 89 total academic credits, a dismal 1% of a law student’s preparation for practice. Other professions (such as medicine, pharmacy, dentistry, veterinary, social work, etc.) require that at least one quarter, and up to more than one half, of a graduate’s pre-licensing education be in role in supervised professional practice.

CLEA contends that the present standards do not adequately prepare students for the practice of law and that 15 hours of professional experience (representing about one-sixth of a student’s total credit hours) are certainly the minimum necessary to ensure that law school graduates are competent to begin practicing law. Concerned that the ABA was not doing enough, the California State Bar Task Force on Admissions Regulation Reform recently proposed a similar pre-admission practical skills training program for all law students seeking admission to the California bar.  CLEA’s proposed amendment, filed under Rule 803(d) of the ABA Rules of Procedure for Approving Law Schools, requires the ABA to formally refer the request to committee and report back with a recommendation regarding the proposal.

-Kate Kruse

CLEA President

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