Quite Moving but Frightening Testimony at AALS Conference

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.

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

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.

ABA FUTURE LEGAL ED TASKFORCE “WORKING PAPER” AVAILABLE: “a field manual for people of good faith.”

The ABA Taskforce on the Future of Legal Education today posted a thirty-four page “WORKING PAPER” in preparation for its next public hearing and meeting on August 10th in San Francisco see schedule. (Note: all  blue font below is my “emphasis added” in this blog post and not found in the original document).   After briefly summarizing challenges and obstacles, the Working Paper states,

The Task Force has resolved these challenges by structuring the Working Paper as a field manual for people of good faith who wish to improve legal education as a public and private good.

Early on, the  drafters alert the reader to  Section VII (“Themes Addressed to All Parties”) and call that section “the heart of the field manual.” In the Overview,  the drafters identify the following “Key themes:”

  1. “need for a systematic (rather than tactical) approach to the deficiencies of law school financing and pricing;”
  2. “greater heterogeneity in law schools and in programs of legal education;”
  3. “an increased focus on the delivery of value by law schools;”
  4. “a focus on the development of competences (sic) in graduates of legal education programs;”
  5. “the profound importance of cultural change, particularly on the part of law faculty;”
  6. “the need for changes in the regulation of legal services to support key changes in legal education;” and
  7. “the need for institutionalization of the process of assessment and improvement in legal education.”

In Section II,  the Taskforce identifies and addresses a tension in legal education (which IMHO is too often overlooked — at great risk to  American law and society). The drafters refer to it as “The Fundamental Tension.”  On the one hand, there is societal interest in the training of lawyers as a “public good” and the “centrality of lawyers in the effective  functioning of ordered society.” Requiring ethical training or encouraging faculty scholarship may be an important  “public benefit.” On the other hand, American legal education is also a “private good,” providing trained lawyers “with skills, knowledge and credentials which will enable them to earn a livelihood.” This private good aspect subjects legal education to consumer preferences and market forces. The Taskforce wisely  acknowledges that any “credible” set of recommendations will have to “carefully calibrate” the public and private concerns.

In Sections III to VI, the Report outlines guiding principles, intelligently discusses the forces and factors prompting need for action and aptly details what actions or initiatives can be realistically undertaken to effect change. The Taskforce comments that it  structured its proposed plan to:

(a) encourage and facilitate appropriate action by each actor in the legal education system; and

(b) to the extent possible coordinate those actions to achieve large-scale improvement.

In Section VII, the Working Paper lays out and develops key  themes mentioned above. In the eighth (VIII) and final section of the Working Paper, the drafters set out seven sets of specific recommendations addressed to particular “groups or actors in the system of legal education.” Some of those recommendations call for modification or elimination of current ABA standards which according to the drafters “Directly or Indirectly Raise the Cost of Delivering a J.D. Education Without Contributing Commensurately to the Goal of Ensuring that Law Schools Deliver a Quality Education.” Those include standards pertaining to tenure and security of position, faculty-student ratios, distance learning and adjunct faculty. Others call for revising, eliminating or adding standards to encourage innovation, including for programs of legal education that result in less than a J.D.  but which serves public needs for legal services:

Incentives, resources, and encouragement can be powerful supports for innovation, and these can come from many participants in the system (as well as participants outside the legal education system). The ABA Section of Legal Education can support innovation by modifying or eliminating Standards (including those governing variances) that constrain opportunities for experimentation and risk-taking. As noted above, experiments or successful risk-taking by one participant can influenceothers to go down a similar path. In addition, there exists a wealth of knowledge schools can draw, from organization theory and elsewhere,to facilitate their acting in ways that might lead to innovation.

In order to alert readers to the availability of the report as promptly as possible, I have posted immediately and have had only the briefest of opportunities to digest the Working Paper in its entirety.  So without addressing any specific recommendations, here are my thoughts as to what the Taskforce and Working Paper got right:

  • The Taskforce correctly focuses on the “Fundamental Tension” between public good and private livelihood demands.
  • The Taskforce highlights appropriately  the critical importance of providing real “value” to student-consumers (and the unfair consequences currently for need-based law students without the highest of LSAT scores).
  • The Taskforce underscores effectively the need for permanent institutionalization of ongoing assessment and improvement mechanisms for legal education.
  • The Working Paper accurately identifies  the need for correction and balance in faculty culture.
  • The Working Paper also accurately identifies the need for adjustment in curricular focus on student competencies and skills.
  • The Working Paper aptly emphasizes the need for innovation, experimentation and flexibility at this moment in legal education.

Although this “Working Paper” is a good start, the Taskforce still has more issues to include in its deliberations. I think these issues include:

  • How to continue to protect academic freedom as part of  law schools’ role in aiding the “public good.” The need to properly protect academic freedom is not a mere “hypothetical” issue as those professors and clinics who have experienced the backlash will tell you. (See also my discussion about it in an article on outcomes in the William Mitchell Law Review.)
  • How to reconnect law schools’ “public good” mission with governmental funding priorities; specifically, to revive or replace DOE funding for client-centered education, the elimination of which (20 years ago) has contributed to the current maldistribution of legal services and gaps in access to justice.
  • How to manage the risks that accompany deregulation, i.e. the potential for pragmatic market-oriented reforms to establish a de facto two-tiered system, which could exacerbate current inequities in quality of legal services and opportunities for advancement in the profession.

ABA Taskforce on Future Legal Ed Report Expected Soon

See this interesting back and forth on Bloomberg Law about the accuracy of legal education critiques with Assistant Dean and Professor Stephen Sheppard at the University of Arkansas School of Law here.

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