The Baby Has Finally Been Birthed!

Comprehensive revisions passed

The ABA House of Delegates passed the comprehensve revisions with “minimal  fuss” according to the ABA Journal linked  above.  One area, however, garnered  significant attention and also resulted in  an odd, though perhaps meaningless ,  procedural move.  The House voted  to send back to the Section on Legal Education for further consideration the comment to standard 305 which prohibits payment to students for credit-based courses.

What does this mean? Law schools which have not already done so must start identifying, articulating publicly and assessing student learning out outcomes, providing every student six  credits of clinic or clinic-like experiential courses and requiring students to take two credit hours worth of professional responsibility coursework.

Well, it’s a start……

TEACHING RESILIENCE AND BEING RESILIENT : Filling Our Tanks This Summer

About a month ago, I had the pleasure of attending the annual AALS clinical conference held  in Chicago.   The conference focused on achieving happiness and resilience at a time of challenge in legal education while exploring methods for becoming “better” clinical teachers.  Clin14BookletWeb

The Keynote opening presentation by Professor Nancy Levit from the University of Missouri-Kansas City School of Law outlined research about happiness,  lawyers and legal careers.   Professor Levit’s  book with Doug Linder, The Happy Lawyer: Making a Good Life in the Law, was published by Oxford University Press in 2010. Their sequel, The Good Lawyer: Seeking Quality in the Practice of Law is now available.  The Levit and Linder research helps answer questions for our students and ourselves about how and why lawyers find a  legal career rewarding.   Much of the research reveals that simple truths about happiness – such as feeling valued or being part of a community – bears repetition.   The presentation was informative and the research can be used in advising our students, supporting our colleagues and caring for ourselves.

After her keynote, panelists Professor Calvin Pang (University of Hawaii, William S. Richardson School of Law)  and Professor Joanna Woolman (William Mitchell College of Law) with moderator American University Professor Brenda Smith presented a few clips from a very realistic “role play” focused on a “devastating” day in court and the responses  of a clinical teacher, clinical student, and non-clinical colleague.    (The film will be available after the conference – I believe at the AALS site – for those who want to use it in their home schools.)  In the film, the law student  faces a surprising negative court ruling and then experiences his client yelling at him outside the courtroom.   In conversation with the clinical professor, the student expresses anger with his client and believes he should just “drop” clinic.  The clinical professor listens to the student and also explores other aspects of the student’s current anger and despair including his having received a number of employment rejections during this same time period.

The film was provocative and engendered good discussion about the role of law professors .  Many of us have experienced with our students or in our own professional lives the coinciding emotional burdens of dealing with difficult emotions in client’s cases and receiving negative news on the home or career front.   Managing and coping with all those emotions and burdens is a never-ending part of professional development and law schools can and should play a significant role in preparing students with appropriate skills, appreciation of professional values and coping tools.

In a final exercise, the entire room of about 500+ created word trees on three questions:

1.  What do you do as a teacher to “fill your tank.?”

2. What do you do to encourage your students to adopt habits to make themselves whole?

3. What are the barriers and obstacles to the first two?

In asking myself these questions and watching the hundreds of others eagerly participate, I reflected on the particular importance of the resilience, holistic, and happiness theme at this moment in time.   Students and recent grads need our positive support.  Institutions need our creative, optimistic energy.   But providing that energy and support can be personally tolling.

Student-centered faculty – and in particular clinical faculty with summer burdens or untenured faculty with heavy writing demands – must  carve out some real off time or vacation in order to be effective in the long term.  Their institutions must support their need for renewal.  Filling  our personal “tanks” with sunsets, summer treats (ice cream for me!), some  relaxing days, renewed commitment to exercise or getting outside, and time vacationing with loved ones helps form the foundation for resilience in the academic year.  We need to do this not only to support our own resilience but to equip ourselves with the experience-based wisdom that will be needed in great quantities in the coming semesters.  In order  to assist our students and our institutions at this precarious time for law schools, we need to nurture our whole selves now.

SRC voted to eliminate Interpretation 305-3 which distinguishes paid employment from academic field placements

American Bar Association Accreditation Standard 305  addresses “study outside the classroom” and, in particular, field placement courses.  Interpretation 305-3 states:

A law school may not grant credit to a student for participation in a field placement program for which the student receives compensation. This Interpretation does not preclude reimbursement of reasonable out-of-pocket expenses related to the field placement.

The written submission by the Clinical Legal Education Association (CLEA) filed January 31, 2014 (found here or on ABA site) argues

To revoke this regulation would give employers in paid field placements significantly more power both to control student work and to minimize the employer’s supervisory role, and would significantly reduce externship faculty control over the educational benefit of the placement.

This is a real concern. When I directed Albany’s field placement program, I often had to discuss with supervisors the difference between their treatment of academic interns and paid clerks. For example, throwing an inexperienced student into night court without direct attorney supervision may free up the evening of the harried assistant public defender or assistant prosecutor but it fails to teach the intern the constitutional way to practice law. And, if you pay the interns you may well be entitled to assign them to pick up your dry cleaning or walk your dog because your time is more valuable, however those activities are hardly educational. These were actual issues I addressed and was able to resolve in favor of the students educational experience because the employer had no money in the pot and needed to follow the requirements of the law school. That leverage will be undercut if interpretation 305(3) is removed.

I also agree with CLEA’s position that

……nothing suggests that field placement courses are displacing a large volume of paid part-time work for law students. To the contrary, pervasive anecdotal evidence suggests that employers are unable to pay and would prefer that students work without pay. Field placement directors (and placement offices) routinely field requests from employers who seek to offer unpaid work through a field placement experience. Nothing suggests an increased demand by employers to pay students who are also getting credit.

If anything, during difficult economic times, law students need the negotiating power of an experienced attorney and faculty member even more, since they are more vulnerable to exploitation by employers. I urge the Council to keep Interpretation 305 (3) in place to protect the educational quality of field placements. As discussed in another earlier post, during Thursday’s public hearing before Council members, Interpretation 305 (3) was discussed, including the applicability of the Fair Labor Standards Act, possible exploitation of students, and the problem of differing expectations regarding treatment of paid and unpaid interns. These issues are complicated and deserve further attention. With the SRC members deciding to complete the comprehensive review at the February meeting and leave issues which need more data and input for another day, it was surprising, in my opinion, to observe them move so quickly on the proposal to remove 305-3 without a more informed vetting of the issues.

Disclosure: I was recently elected co-vice president of CLEA. However, I was not responsible for the CLEA position letter on this interpretation. When writing on this blog, I do not represent CLEA.

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.

Is the declining law school enrollment bottoming out?

Some interesting analysis from the ABA journal:

….figures suggest that enrollments are coming closer to matching the Bureau of Labor Statistics job projections, which project that the economy can absorb about 22,000 new lawyers a year through the year 2020. That’s good for prospective students, he says, who will have more reason to think that a law degree will translate into the career they intended. The decline in enrollments also creates revenue pressures that will force law schools to look for ways to provide a more affordable legal education.

On the negative side, the enrollment figures are still 20 to 25 percent higher than the projected market for new jobs requiring or preferring a law degree, he says. And other data suggests that some schools are maintaining enrollments as high as they are by accepting students with lesser credentials, which could have negative long-term implications for the legal profession.

David Yellen, dean of Loyola University of Chicago School of Law, says while the figures are not surprising, it is “still kind of stunning” to think that law school enrollments have declined nearly 25 percent in three years. “The last time fewer than 40,000 students were enrolled in law school was in 1977,” he says.

Yellen also says that while he thinks 52,000 new law school enrollees a year is too many, we’re now at the point where we might want to ask whether the market correction has gone too far and is being driven as much by negative publicity as anything else (emphasis added).

However, new applications are projected to be down another 10 to 15 percent in the coming year, he says, “so we’re definitely not at the bottom of the cycle yet.”

The enrollment figures come from the questionnaires that ABA-approved law schools file annually with the section. Over the next several months, the section plans to publish more reports about the data, including school-specific information, which will also be posted on the statistics page of the section’s website.

Last updated Dec. 19 to include enrollment figures from 1975.

Law School Hybrid

December 18, 2013
By: Carl Straumsheim

William Mitchell College of Law has received approval from the American Bar Association to launch a part-time J.D. program that blends face-to-face instruction with online courses. Although the hybrid program marks the first of its kind, experts are split on whether it marks an experiment or a turning point for how legal education is delivered in the U.S.

The four-year part-time program, meant for students whose location or work commitments prevent them for pursuing a legal education full-time, will mix recorded lectures and quizzes with video conferences and online discussion forums when it launches in January 2015. Students will also be required to complete externships and attend weeklong on-campus simulations at the end of each semester to practice their legal skills. Mitchell’s Board of Trustees approved the program Tuesday night.

“Our message is that this is not an online J.D. degree,” said Eric S. Janus, president and dean of the college. “This is a J.D. degree that has very substantial and rigorous face-to-face components that I think are going to be designed in a unique way to help people become more prepared to practice law.”

Online education and accreditation from the American Bar Association rarely mix. Although fully online law programs exist without ABA approval, institutions that seek accreditation need to tailor their programs to a set of standards that have been in effect since 2002. The program itself needs to consist of at least 83 credits — Mitchell’s hybrid program clears that hurdle exactly — but no more than 12 can be granted from pure distance education. Of the remaining credits, one-third of the coursework can also be completed remotely. As an added twist, programs can offer only four credits of distance learning per semester.

Barry Currier, managing director of the ABA’s legal education section, said the four-credits-per-semester rule may have discouraged law schools from experimenting with hybrid programs. He also pointed out that few law schools seem to be aware of or interested in developing programs that take advantage of those regulations.

“Maybe they think their students won’t like it?” said Currier, previously dean of the online Concord Law School of Kaplan University, which after clashing with the ABA decided not to seek its approval. “Maybe they think employers won’t be interested in students that went to a school that was one-third blended?”

For many law schools, the requirements regulating distance education have been been viewed as “insurmountable,” said Simon Canick, associate dean of information resources at Mitchell. “I think a lot of law schools also use the existing ABA standards as a reason to not push the envelope,” he added.

To receive approval for its hybrid program, Mitchell submitted a variance request that exempts the program from the requirements — under certain conditions. The college must enroll no more than 96 students per year, assess the program on an annual basis and report its findings to the ABA. The college also had to waive its right to confidentiality to help other law schools learn from its experiences.

“I see this as a first step for the ABA to be welcoming of innovation,” Janus said.

Variance requests represent another untapped opportunity for law schools to experiment with new forms of legal education, Currier said. “The ABA has not gone around and said ‘Oh please, please, please submit a variance request,’ ” he said. “It is not the case that there are dozens of requests for variances about distance learning that have been turned down. Maybe the perception is they would have been turned down.”

If the experiments prove successful, however, they could guide the ABA to revise its own standards, Currier said.

The approval of the hybrid J.D. program can also be seen as the ABA responding to those who have called for law school reform — a group that includes President Obama, a graduate of Harvard Law School. The ABA last year launched a Task Force on the Future of Legal Education, which concluded the organization’s own policies was stymieing innovation.

“The current procedures under which schools can seek to vary from ABA Standards in order to pursue experiments are narrow and confidential,” the task force reported in September.

Mitchell submitted its variance request in July, and Canick said the college benefited from the timing of the task force’s report.

“I think the ABA faces some significant pressure externally to innovate and allow innovation,” Canick said. “Here comes this proposal that’s really good. I think they were eager to show they were going to embrace innovation.”

Mitchell, an independent law school located on one block in the residential Summit Hill neighborhood of St. Paul, Minn., may not seem like a hotbed of legal education reform. Like many law schools, the college has seen its enrollment shrink over the past few years. About 240 students enrolled this fall, down from about 260 the year before and about 300 two years ago.

“We’re doing fine, comparatively speaking,” Janus said. “I do think that part of the message is that law schools have to add value, and the programs they offer need to be meaningful and accessible to the people who want to study law. This is not a response to declining enrollment.”

The online option instead represents a third track and a nod to the college’s history, Janus said. Mitchell was founded in 1900 as St. Paul College of Law, a night school catering to the same type of students who would consider an online education. The college added a full-time option in the ’70s.

Aside from the mode of delivery, the three tracks are fairly similar. Applicants for the hybrid program won’t see more lenient admissions requirements or tuition savings, for example. “We understand that the blended learning is not for everybody, but it will meet — we think — the needs of a group of people,” Janus said.

The law school has for years offered about a dozen blended and online courses, and plans for a fully hybrid J.D. program have been in the works since 2009. Currier said the the decision to approve the request was a result of the strength of Mitchell’s application, not external pressure.

“What the council saw was that this was a school that has a long history of part-time legal education and a long history of serving students who are a little more nontraditional in terms of age and working experience than many law schools,” Currier said. “I think it’s safe to say something like this has never been approved before.”

Read more: http://www.insidehighered.com/news/2013/12/18/american-bar-association-approves-experimental-hybrid-jd-program#ixzz2nryuK8wt
Inside Higher Ed

ABA Council Changes Course

The ABA Council decided to send out for comment a proposal to increase the requirement for clinics, simulations or externships to 15 credits.  This is a big surprise of those of us following the ABA Council’s deliberations of the changes to its standards regarding the Program of Legal Education.  Over the summer, the decision was made to circulate for comment a proposal requiring 6 credits.

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