AALS Sends Letter to ABA Urging Adoption of 3 Principles

On June 1, 2010, the President of the AALS, H. Reese Hansen, wrote to the Consultant on Legal Education of the ABA’s Section on Legal Education and Admission to the Bar  concerning the ABA’s two year review of the law school accreditation standards.  (This review by the Section’s Standards Review Committee (SRC) is the subject of many previous posts – see www.teachinglawstudents.com  for descriptions of SRC proposals etc).

In his letter, President Hansen forcefully outlines three principles which the AALS recommends that the ABA adopt.  I have provided excerpts from the letter  with some brief commentary at the end:

AALS LETTER:

“…The first principle (emphasis added by ML) relates to a number of the changes that the Standards Review Committee has under consideration: “The Measure of  a Law School is the Quality of its Full-Time Faculty(emphasis in original).” One of the core values of the AALS is that its member schools value a faculty “composed primarily of full-time teacher/scholars who constitute a self-governing intellectual community engaged in the creation and dissemination of knowledge about law, legal processes, and legal systems, and who are devoted to fostering justice and public service in the legal community…….

….For these reasons, we are concerned about any revisions in the ABA Standards that might either undercut the basic structure of faculty governance of law schools by full-time faculty or weaken the academic freedom of faculty. Measures that would weaken or abolish the tenure and security of position requirements in the ABA standards are central to our concerns; such measures would inevitably contribute to a decline in effective faculty governance and undercut efforts to improve law school quality that only joint efforts by a dean and faculty working together can achieve. It is also unlikely that any substitute for tenure designed to protect academic freedom and faculty teaching programs will be as effective as tenure in protecting the internal balance of institutional governance or responding to external pressures law schools will certainly face. One example of outside pressure is the growing number of attacks some law school clinics have faced for representing unpopular clients. Preserving the principle of academic freedom is not only an AALS core value; it is an essential public value….

…. The second accreditation principle (emphasis added by ML) that we commend to you is:  “Don’t conflate clinical education with skills training (emphasis in the original).” The two ideas are quite different. One source of  the confusion is that any mental process can be reframed as a skill (e.g., the skill of critical thinking). Clinical education and skills training are, however, quite different teaching concepts. Skills training focuses largely on discrete, concrete and quantifiable skills, typically taught in single courses aimed at those skills. This training can be beneficial to students and is a useful component of a complete legal education. But lawyers must act skillfully and ethically in the world based upon complex knowledge. The challenge for legal education is to develop a way to frame a broad and deep commitment to professional knowledge and education that draws upon what the AALS sees as an intellectual project that incorporates rather than isolates the skill dimension of legal education….

Our third principle is: “Do No Harm.” “Do no harm” is the first principle in medicine and we commend it as a key principle of lawyer regulation as well. Trying to measure outputs without reliable techniques to do so, for example, runs a real risk of producing data that is more misleading than helpful.

Our focus here is the pending proposal for greater reliance on outcome measures. We all agree that verifying student learning is central to the educational process; determining what students have gained from their legal education is everyone’s bottom line issue. We also agree that inputs often are imperfect, only “second-best” measures of student learning. Setting aside the difficulty of distinguishing in all cases between input and output measures, it is surely reasonable to say that an input measure such as passing a class in trial practice is at least some measure of learning trial skills. The same can be said for passing a course in property law or civil procedure. Our review of the literature suggests that no one has yet documented significant, reliable or valid outcome measures that would better measure what law schools do. Inputs theoretically may be “second best,” but so long as output measures are unreliable, we are very concerned that the proposed shift to output measures may replace one system of quality control with one that is even less effective.”

End of Excerpts –  to view entire letter click on link to  CELT http://www.albanylaw.edu/celt

I agree generally with the principles which the AALS urges the ABA to adopt in reviewing law school accreditation standards.  Like the AALS,  I am concerned that the accreditation review process may be used as a tool to eliminate tenure or security of position and thereby undermine academic freedom.   Likewise, I am concerned that some of the Standards Review Committee proposals’ conflate clinical education with skills training and am delighted to see such a vigorous defense of the intellectual framework for  clinical education teaching.

As to the third  principle (“DO NO HARM”), it sounds wonderful – who could disagree?  It also addresses the concern of many thoughtful folks who have posited that the accreditation review process has been manipulated by some to advance a wholesale deregulation agenda,  eliminating academicians from the discussion of what’s important to teach – what outcomes are important –  and leaving these critical educational decisions to business administrators and the vagaries of the market .  It also addresses the concern of Deans who argue that emphasis on measuring outcomes will overwhelm law schools financially.  These are all important issues for the ABA to consider.     

However, if in reality “DO NO HARM” really  means “DON’T EMBRACE CHANGE”, then it is encouraging an outdated approach to legal education.   If this principle is interpreted to mean “DON’T IMPOSE ANY EXPECTATIONS”  on law schools with respect to preparing students to actually practice and serve the public, then we are right back where we started before Carnegie and Best Practices – not doing right by our students, our communities and our profession. There must be a way to advance legal education into (at least) the 20th century if not the 21st without doing harm.

What do you think?

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One Response

  1. I think part of the problem is that we are conflating establishing outcome measures with changing the content of legal education. The proposed standards are imposing outcomes measures as a measure of a quality education and at the same time are changing the content required for students’ education. Both are important issues and people may support one issue without supporting the other.

    For example, people could agree to requiring outcome measures and disagree about goals or content of a legal education. In fact it is possible to support outcome measures and argue that legal education does not have to change; we just need to measure students’ learning differently. Or, People could agree on requiring a change in the content of the education to better prepare students for practice of law and not agree that that should be done by setting outcome measures but rather requiring input measures like requiring courses, clinics and the like.

    At this point the two are linked in the proposed standards. I am sure there are those who are willing to move forward with imperfect outcome measures in order to see requirements that impose content change. Others see any change from input to output as ultimately eliminating tenure which is an input measure.

    As my father would say — the oatmeal thickens.

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