What’s in a Name? Teaching Implicit Bias

Every semester I weave into my classrooms several opportunities to teach about implicit bias. I have shown videos like this and led discussions on articles like this.

Last week in my Family Law Clinic seminar, we discussed Peggy McIntosh’s Unpacking the Invisible Knapsack, which describes the author’s quest to overcome her biases stemming from white privilege. A student shared their pain and frustration over college and law professors never using their full name, and often mispronouncing the parts of their name the professor is willing to speak out loud. “It’s dehumanizing,” my student said.

Those words have haunted me all week. Names are fundamental parts of human identity. Why can we, as educators–members of an elite profession–not get this right? Why is it not a norm in higher education for professors and teaching assistants to learn to pronounce every student’s name?

Also this week, I read in a memo from a colleague a to-do item along the lines of “practice pronouncing graduates’ names.” The colleague was sharing with me tips for the job I will soon begin: associate dean for academic affairs. One privilege of this job is reading the names of all Penn State Law graduates at the annual commencement ceremony. It was profoundly touching to learn that my colleague takes the time to practice every graduate’s name–and they felt it important enough to share with me as one of a handful of their significant monthly action items.

I give all my students the opportunity to share the pronunciation of their name with me on the first day of class, on note cards I keep with me at every class. An earlier post explained more about the note card system, which I learned from fellow blogger Paula Schaefer. Pronouncing each student’s name is challenging, and I sometimes falter. Last semester I began writing the pronunciations on my seating chart, to minimize my fumbling through the note cards. This is my seventeenth year of teaching. My only regret is not starting this earlier. It enriches my classroom, and it enriches me. It bakes into my pedagogy an indirect lesson about implicit bias, a lesson I re-learn every time I call on a student and say their name, whether it is Ainslie or Zhao-Ji.

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Leadership Courses: Paving the Path for Future Attorneys

Written by: Dean Rosemary Queenan, Albany Law School; and Dean Mary Walsh Fitzpatrick, Esq.

 

There is a call to action to provide students with the opportunity to build leadership skills. This call originates, in part, from the changing legal services environment and the recognition that lawyers need to know more than the law: they need to master many disciplines that are commonly and collectively referred to as “leadership” skills. Broken down into its separate parts, leadership may include communication, teambuilding, organization, presentation, active listening skills, and a cadre of emotional intelligence competencies.

To answer the call, Albany Law School has developed and added to its course offerings a new Lawyers as Leaders course, which is being taught collaboratively by Mary Walsh Fitzpatrick, Assistant Dean for the Career and Professional Development Center and Rosemary Queenan, the Associate Dean for Student Affairs. The course will use skills-building exercises and constructive feedback to allow students to practice leadership skills. Students will create their own organizations and will be assigned to take on leadership roles in performing certain tasks including identifying a vision for their organization, managing and working with teams, making difficult decisions, navigating difficult conversations, presenting and communicating effectively and problem solving.

Our first class focused on a discussion of the work of Carol Dweck, Ph. D., Peter Senge, Ph. D., and Daniel Goleman, Ph. D., on mindset, emotional intelligence, and leadership styles, in the context of our broader discussion of what makes a great leader. With this introduction, students were asked to assess and identify their own leadership styles and emotional intelligence attributes. Each organization was also asked to research a leader in business or law and present on that leader’s failures and successes in leadership.

We are looking forward to this first-of-its-kind course to be offered at Albany Law School and are confident that every student will benefit in some way from the experience. Stay tuned, as we will provide updates on our progress and outcomes along the way!

Letters raise concerns about changes to the bar pass accreditation standard

Early next week, the ABA House of Delegates will again vote on whether to approve a revised bar passage accreditation standard [Standard 316]. The Society of American Law Teachers and the ABA Diversity Entities both have written to the ABA House of Delegates setting forth significant concerns about the proposed standard change.  Both letters are worth a full read.

Amongst the issues the letters raise about the proposed change are the following:

1.  There is incomplete data about how it will affect HBCU’s and other law schools with significant enrollment of people of color;

2.  It fails to account for state bar exam cut score differences and differences in state bar exam pass rates;

3.  It may result in even greater reliance on LSAT scores in the admissions process despite studies showing the scores’ limited predictive value for academic or bar exam success at many schools and despite warnings from the LSAC about how to use the scores properly in the admissions process;

4.  It may negatively impact schools willing to take a chance on students who are poor standardized test takers but who will be excellent lawyers and leaders if given the opportunity to attend law school and the coaching necessary to pass the bar exam;

5.  It does not consider the effect of transfer students on bar pass rates for schools that admit students who otherwise would not be admitted to law school, who perform well, and who then  transfer to other institutions;

6.  It eliminates some important aspects of the current Standard that take into account varying state pass rates, a school’s mission, the transfer issue, and the fact that improving bar passage is a complex and nuanced issue that requires study and experimentation [something currently underway at many schools];

7.  Now is not the right time for change given current studies about the validity of the bar exam as a licensing method and work being done to explore law licensing assessments that better measure who will be a competent attorney.

Proponents of the proposed change to Standard 316 believe it is necessary to protect consumers from law schools that admit students without devoting the necessary resources to ensure bar passage or that admit and retain students who have no chance of obtaining a law license.  The letters cited acknowledge the importance of the consumer protection issue but argue that issue can, and should, be addressed in other ways.

If you have concerns about the proposed change to Standard 316, contact your state ABA delegate.  The delegate information starts on page 13 of the ABA 2018-2019 Leadership Directory.

A Fresh Look at the Uniform Bar Examination

The bar exam is back in the news. Later this month the ABA House of Delegates will consider a proposal to raise the bar-passage standard. The proposal would require that 75% of an accredited law school’s graduates pass a bar exam within two years of graduation.

In most states, bar exam means the National Conference of Bar Examiners’ Uniform Bar Exam. The UBE has been adopted by 35 jurisdictions and is under consideration in others. It carries the endorsement of many ABA-related entities. They include the Conference of Chief Justices, the Law Student and Law Practice Divisions, the Section of Legal Education and Admissions to the Bar, and the House of Delegates.

As a reminder of the features of the UBE, and an update on the pace of its adoption, I have accepted Mary Lynch’s gracious invitation to reblog my recent post “Will the Uniform Bar Exam Come to Michigan?” from the Western Michigan University-Cooley Law School blog. (Spoiler alert: no time soon.)

Ode to Librarians

Librarians are the nicest, most helpful people I have ever met.  I don’t remember meeting any librarian who wasn’t.

They are particularly helpful for students, teachers, and scholars – like most of the readers of this blog.  Although librarians sometimes get acknowledgment, often they are unsung heros who bail us out when we have desperate last-minute requests to find hard-to-find stuff.  And somehow, they usually do find what we need.

I was prompted to think of them by a recent episode of This American Life devoted to librarians.  It features three stories of very unusual situations when librarians were especially helpful. Check it out.

Getting Students Out of Their Own Heads – Moving More Toward Justice Oriented Learning

As the New Year begins and I look back on last semester’s first-year student work, I am struck with how challenging it is to guide students into a shared understanding of law and toward an ability to think critically about and evaluate that understanding. I also find myself actively searching for how to reach students in ways that go beyond helping them pass the bar or find a job.  It’s hard enough to get first-year students to start with the same facts, let alone law.  This hurdle exists in part because we come from different life experiences such as racial, gender-based, religious, geographic, social, economic, historic, or cultural group-based memberships that help shape how we understand the world[1]. But, beyond viewing the world through different life experiences, sometimes known as bubbles, people now also have their own “personal facts” which are either chosen or assimilated from what they see on social media, television, or are simply made up. And, as our society becomes more rigidly partisan, personal facts become more fixed and more firmly held by our students. Whereas in the context of teaching persuasion in the past, I might have labeled these fixed positions simply as “contrary” or “argumentative” and pushed students to develop skills of logic – case analysis, statutory interpretation, synthesis, and advocacy, something more is needed now. This era of personal facts adds another layer of difficulty to legal education beyond the lack of academic preparedness students bring to law school.[2]

Teaching law and its value in the context of our rule of law society[3] is itself fundamentally challenging, but that function is complicated by personal facts and is made even more difficult in schools that shift their focus to “student-centeredness”[4] which winds up elevating students’ opinions and then further validating their personal facts.  The rise of student-centeredness goals in law schools reinforces a consumer-preference society and also enables students’ – later lawyers’ – ability to stray from the rule of law.[5] I take for granted for the moment here, that a rule of law society in which power is constrained by rules of law and where those rules have value beyond individual outcome preferences, is preferable to other paradigms[6]. To focus students on the law outside of themselves, professors in the past might have said “judges don’t care what ‘you’ think; they care about the law.” Today, though, if one of us tells a student that judges or we “don’t care” what they think, a student is all too likely to complain, choosing to ascribe some deep personal weight to a fictional lack of caring and then have their complaint heard and responded to, thus missing the lesson of law outside of themselves.[7]  And – yes, I can and do find nicer ways of encouraging students to put aside their own bias, but at some point I am the one spending energy on figuring out how to get across a point in a manner that doesn’t hurt, insult, or otherwise upset a student rather than the student spending time on shifting their perspective and learning.

Student personal perspective today is particularly strong, not always shared, intensely personal, supported by personal facts, and often indulged.  My self-aware upper-level students from the past would have recognized a distinction between personal facts and objective facts and easily distinguished the two.  Personal facts are facts as the student wants them to be or that the student can find – usually on the Internet – to support their idea of what “should” be.[8]  “Objective” facts for purposes of this contrast are facts that exist independently of whether a student is gathering them to make an argument and are usually found in clients’ words, documents, or in assignment or exam hypotheticals. Too much student-centeredness risks not disrupting a fixed mindset or the partisanship of personal facts.

So, as I prepare for next semester, I find myself wishing that, in addition to helping students learn rules of law, I could do more to get my students temporarily out of their own heads – individually and socially.  Each semester, I contemplate the delicate balance between having students learn the law and helping them develop tools to think about the law’s role and how to move it toward making a better society. Lately, that balance has been upset further with personal facts. By “get out of their own heads,” I don’t mean students should develop dissociative disorder; nor do I mean students should permanently ignore their own thoughts.  While I think that developing an adaptable mindset benefits students’ learning,[9] I am really concerned about the tendency students have to draw conclusions based on their own interpretation of a given scenario and their personal feeling about who should “win” and how inconsistent such a perspective is with a lawyer’s obligation to participate in and protect a system of justice for the public. I regularly now find myself trying to figure out how to encourage students to temporarily suspend personal facts and personal results[10] as their learning focus, to consider (not argue) what may make a better society, and to develop some empathy.

Since each student and student cohort comes from a different place – a different perspective – I am often off balance and searching for ideas to realign for educating future lawyers. Three strands have momentarily come together for me, though not exactly harmoniously – the allure of “expertise” as exemplified not only in some recent law school pedagogy[11] but generally in such well-received books as Anders Ericsson and Robert Pool’s Peak:  Secrets from the New Science of Expertise (2016); words given after the passing of a president, and the reminder by a colleague of James Baldwin’s “A Talk to Teachers.”  I think in re-assessing legal education, we might critically draw on what all of these have to offer us.

As I generally understand it, the idea of expert learning is that by developing “mental representations” of what is needed to think clearly about something, getting outside of one’s comfort zone, and by deliberately practicing (trying, receiving feedback, thinking about what one did, and trying again only differently) one can develop new and significantly better skills.[12]  Where there are well-defined standards of performance, expert learning of skills makes sense.  So, for example, extending the skill of memorization through expert learning makes sense in the context of law school – we want students to memorize the rules of law.  Deliberative practice in learning rules is also attractive because it can be taught by that which is arguably familiar to us: “breaking learning down into a series well-specified skills, designing exercises to teach each of these skills in the correct order, and using feedback to monitor progress.”[13]  A key component of expert learning, too, is its emphasis on adaptability[14]– the student requirements of willingness to try, make mistakes, get feedback, and try again differently.  But note – the skills developed through mental representations and deliberate practice work best when achievement can be measured by objective assessment.  Ericcson provides several examples of those situations amenable to this expert learning including chess masters who are able to develop mental representations of different chunks of a game, recall, and use those chunks; athletes; physicists; surgeons, and those who develop perfect pitch in music.[15]  In these examples, it is easy to see how memorizing rules, outlining, IRAC patterning, and trial skills are all amenable to expert learning.

In my attempt at balancing, though, I have found expert learning falls short of what is needed for legal education because of student perspective in two ways – first in students’ learning the law outside themselves at all and second in students’ learning to evaluate the law. Generally, deliberative learning requires an eagerness or at least a willingness to be wrong and receive feedback from an expert – something that Ruth Vance and others suggest may not be first on the list of today’s law students.[16]  Vance asserts today’s law students’ education has been compromised by a focus on testing. She also observes though, that despite arguably weaker academic preparation for law school, students nevertheless share the following traits:  high self-esteem, confidence, a belief that one is special, and a sense of entitlement[17] fully consistent with personal facts.   Thus, a first challenge to expert learning theory is the inability or unwillingness of students to “get out of their own heads” in the sense that they may be overconfident.[18]  This challenge is compounded when overconfidence occurs at the same time as when people are swayed by factors other than education, experience, or seniority, such as friendliness, and attractiveness, and conscious or unconscious bias.[19]  Such judging[20] of another’s competence or expertise allows students to reject expert feedback and preserve their own self-evaluation.[21]

Even where the skills to be learned are amenable to deliberative learning and students can get outside of their own heads and accept expert feedback, the evaluative or critical aspect of learning law on the other hand is not easily amenable to expert learning techniques.  Where skills are not yet well-articulated or where assessment is based on judgment rather than or in addition to some objective criteria, such deliberative learning is more difficult.

My colleague’s reminder of Mr. Baldwin’s “A Talk to Teachers” prompted me to consider how developing critical judgment, because it is derived from experience, specifically calls for something beyond deliberative learning.  Mr. Baldwin’s words, looking at unshared group history and the dissonance between experience and what is taught, point to how difficult it continues to be to help students develop that judgment. Baldwin states, “The paradox of education is precisely this – that as one begins to become conscious one begins to examine the society in which he is being educated. The purpose of education, finally, is to create in a person the ability to look at the world for himself, to make his own decisions. … But no society is really anxious to have that kind of person around. What societies really, ideally, want is a citizenry which will simply obey the rules of society.”[22] We are, no doubt in divisive times, but I think the growing tendency of people to be “judgy,[23]” where people believe only or primarily in their own personal reality, adds a third layer of separation of students from being full participants in our justice system even beyond the systemic concerns raised by Baldwin and others.  But, accepting Baldwin’s premise or even just accepting that our students need to get out of their own heads in order to fulfill their obligations as lawyers in our society, means we need to teach critical thinking in a way that prompts awareness of others, and that integrates critical inward evaluation with outward assessment. And, having personal facts, fake news, and confirmation bias become normalized in law school discourse makes glaringly obvious the existence of such entrenched positions, but may also provide an opportunity for change. This moment also affords a chance for us to check our own preconceptions.

As law faculty, of course we need to be teaching our students to think critically so they can participate in addressing social issues, but critical thinking in the sense of what officers of our legal system must do is not an easily objectifiable skill.[24]  Critical thinking is generally considered a compilation of the skills of conceptualizing, analyzing, synthesizing, applying, and evaluating information. As such, it does at first sound as though it is a skill learned by deliberative practice because those sub-skills are capable of assessment. Moreover, the aspect of deliberative learning that calls for students to go outside their comfort zone, if they will, is important and useful here to critical thinking.  However, what makes critical thinking ultimately so ill-suited yet for deliberative learning is that it inevitably requires one to consider ideas through experience, and we all come from different perspectives; we do not share fundamental experiences, and, our experiences may set us toward conflicting goals. Moreover, the present contracting of perspective to personal facts narrows thinking while widening our differences. Mr. Baldwin’s admonition to examine society should take on greater urgency today because not only are there bubble-differences between us, we have strengthening sub-bubbles of personal facts. Depending on the accuracy of Vance and others’ assessments of law students’ egocentrism, however, little is available to motivate those students[25] to put aside their reluctance to fail[26]or sense of entitlement in order to get outside of their own heads to truly examine society. That our students are adults further increases the challenge. Studies show that the human brain is much more flexible before the age of six than it is in an adult,[27]though the brain remains somewhat malleable. And, while many have suggested metacognition, self-monitoring of one’s own cognition, as a means of progressing toward both being able to accept feedback and to empathize,[28] day-to-day interactions may leave faculty resigned to a conclusion that students do not see the value in change or may even “double down” on their position.  This “double down” can easily mimic deliberative learning – practice until having ingrained some pattern or skill – especially where so many are already inclined toward personal facts and entitlement.

Given current public partisanship and the trend of law schools to be consumer driven, there is also a concern for a lack of will to really challenge student self-perception when to do so may not be considered student-centered and/or is inconsistent with the consumer-oriented positioning of one’s school[29].  It seems we now spend plenty of time and effort on “learning strategies” and “assessments” that are designed to help students “learn” the law and prepare students for that single assessment – the bar exam. I am, however, concerned we will have helped students deliberatively learn strategies and meet objectives that are capable of easy assessment, but will not have met the broader challenge of teaching critical thinking with the purpose of improving society, something beyond passing the bar or getting a job.

As I reflect in preparation for next semester, I have seen that in memorizing the rules and laying out IRAC or CREAC or whatever the requested formula, students have improved over the past several years.  I have found that when my students have practiced taking multiple choice questions over the semester, are given the answers with explanations, and repeat the process, they are more successful on multiple choice exam questions than in years past when I did not have them repeat practice as much.[30]  On the other hand, I have yet to see an equal growth in critical thinking.  In these times, true critical thinking seems much more important than ever.  Because of the extreme partisan positioning of the times, strong student egocentrism, and the consumer focus of law schools, we as faculty have to do more to cultivate empathy, a willingness to be wrong, a willingness to challenge what others say are “facts” and to pierce the bubbles with which people surround themselves, so they can see a much, much larger picture. Finding the will to participate in and teach critical thinking that is not necessarily designed to pass the bar exam seems challenging.

Which brings me to my third thread – the passing of a president and the words spoken to honor that service. These words referred to a leader who “believed in causes larger than” self; one who made “the lives of nations freer, better, warmer, and nobler,’ and who believed that “much is expected to whom much is given.”[31]  Words such as these are aspirational for how we may wish to be remembered and may help re-clarify goals.  As legal education over the past twenty years shifted its goals to be more consistent with a business model, it may have helped students to be more law-firm ready and useful to employers, but, to me, times seem to call for something greater than job preparation – more in line with our responsibility to the broader justice system. We need to not accept the status quo. We need to get out of our own heads and to help our students to get out of theirs and work for causes larger than themselves. And I’ll be honest – I welcome all comers with ideas for how we can do this.

 

 

[1] Some have labeled these perspectives as “bubbles.” Here, most of the discussion in this entry does not focus on the different life starting points that are racial, religious, geographic, social, economic, or gender based but is meant to focus instead on what I consider to be the self-constructed world of individuals that seems to be gaining a more prominent place in the “learning” students bring to law school.

[2] See e.g., Susan Stuart & Ruth Vance, Bringing A Knife to the Gunfight:  The Academically Underprepared Law Student & Legal Education Reform, 48 Val. U.L. Rev. 41, 57-59 (2013). The authors provide extensive citation to studies demonstrating the under-preparedness of students for law school.

[3] Defining “rule of law,” has been the subject of much literature over time – from the Roman era to today and by a range of authors from academicians to those in the military.  For a quick survey of that literature, see Arthur H. Garrison, The Traditions and History of the Meaning of the Rule of Law, 12 Geo. J. L. Pub. Pol’y 565 (2014).

[4] The rise of “student-centeredness” language appears to have begun somewhere in the early 2000’s.  Just some of the law schools that have declared a student-centered institution or atmosphere include Syracuse, Capital, Southern Illinois University School of Law, Gonzaga, Cleveland-Marshall, Albany Law School, Loyola Marymount, Richmond Law School, Southwestern, Rutgers, Lincoln Memorial, and Washington & Lee.  (google search “student-centeredness” and “law school” December 2018)

[5] As first articulated by such innovators as Tony Amsterdam and at our school in the creation of programs designed to contextualize law for students, and as built by learning theorists such as Gerald Hess and others from Gonzaga, student-centered learning had been meant to encourage law faculty to vary teaching style.  Where teaching style was primarily teacher-in-control, student-centered learning encouraged greater interaction with the material and with each other.  The value of interactive-learning is real; the way the term “student-centered” has been hijacked is likewise real.

[6] I recognize those rules are not inviolable; a discussion of whether and how to undergo a systemic change is well beyond the scope of this entry.

[7] There is a growing body of literature on how student evaluations tend to be biased toward what students like, biased against groups, and mainly a popularity contest – failure of which alone may result in loss of position or lack of an offer.

[8] Other synonymous terms include confirmation or opinion bias.  Having personal facts supports one’s ability to be “judgy.” See infra n.20.

[9] See e.g., Sue Schapcott, Sarah Davis, and Lane Hanson, “The Jury Is In:  Law Schools Foster Students’ Fixed Mindsets” 42 Law & Psychol. Rev. 1 (2018) addressing the connection between mindset toward intelligence and professional success.  There, the authors describe Carol Dweck’s “mindset” theory as “one’s perception of the ability to change a trait, characteristic, or skill.”  The authors also summarize research on how students’ mindsets – either growth or fixed – lead to the students’ approach to learning.  For example, students with fixed mindsets, the authors state “are motivated by a need to demonstrate their intelligence. … are more likely to engage in [easy] tasks, … attribute failure to the stupidity of others.” (internal citations omitted).

[10] See e.g., Ruth Vance and Susan Stuart, Of Moby Dick and Tartar Sauce: The Academically Underprepared Law Student and the Curse of Overconfidence,” 53 Duq. L. Rev. 133 (2014). This article focuses on addressing the changed preparedness of students arising from inadequacies in their education from being taught to pass standardized tests so that schools receive funding under the “No Child Left Behind Act” 20 U.S.C. 6301 (2006) to their habit of multi-tasking, and shortened attention spans. More importantly for my purposes here, the article discusses the student mind-set that has emphasized the student as consumer who is competent enough to determine whether the student has been taught well and the consequences thereof. Id. at 143 (citing Catherine J. Wasson & Barbara J. Tyler, How Metacognitive Deficiencies of Law Students Lead to Biased Ratings of Law Professors, 28 Touro L. Rev. 1305, 1316 (2012).

[11] For example, Michael Hunter Schwartz has done work on expert learning. Michael Hunter Schwartz, Expert Learning for Law School, (3d ed. 2018).

[12] Anders Ericcson and Robert Pool, Peal:  Secrets from the New Science of Expertise p. 253-254 (2016).  Expert learning theory is relatively new having been developed from the 1980-1990’s.

[13] Ericsson, supra n. 12 at p. 224.

[14] Adaptability seems to be synonymous with “growth mindset” as contrasted with “fixed mindset.”

[15] An interesting note is that musicians who have practiced since before they were six years old have more developed corpus callosum than those who haven’t practiced since that age.  That part of the brain is responsible for integrating language and for lateralizing language to the left side of the brain which correlates with higher IQ.

[16] See generally Vance, supra n. 10.

[17] Vance, supra n.10 at 134-135 (internal citations omitted).

[18] Of concern is an even more deeply held personal belief and reluctance to rely on experts that is appearing out concern for “fake news” which is that one can’t trust anything.  This range of skepticism or perspective narrowing is a whole other topic.

[19] Vance, supra n.10.

[20] The term “judgy” has its own Urban Dictionary meaning: “As adjective describing a person or their general attitude when they profoundly believe their own reality is the only one, or primary one, in existence, resulting in constant judgment of others (as opposed to ‘being judgmental’ where one consciously draws a judgment on a particular subject.” https://www.urbandictionary.com/define.php?term=Judgy .

[21] Much literature has been devoted to how student bias toward or against a professor interferes with their ability to learn from that professor.

[22] From James Baldwin “A Talk to Teachers” 1963. Unquestionably, many are deeply invested in the status quo.

[23] See n.22.

[24] It goes without saying, though it is said in the Model Rules Preamble, that lawyers have a special obligation to the legal system where they are officers and to society in general.

[25] Or for that matter, faculty and administrative colleagues.

[26] This has been the experience of those who grew up when everyone got a trophy for participating. This is not to say those children didn’t sense the flaws in that system, but is merely to note that this participation reward system has been prevalent for a couple of decades and many have written on its effect on motivation.  See, e.g., Vance, supra, n. 10.

[27] Ericsson, supra n. 12 at loc. 134.

[28] Barbara Kalinowski, “Logic Ab Initio:  A Functional Approach to Improve Law Students’ Critical Thinking Skills,” 221 Legal Writing:  J. Legal Writing Inst. 109 (2018); Patti Alleva, Jennifer A. Gundlach, “Learning Intentionally and the Metacognitive Task,” 65 J. Legal Educ. 710 (2016).

[29] And, of course, when to do so would call for drastic structural change.  See e.g, Nicole Truesdell, “Front Line in the Fight Against White Supremacy,” Inside Higher Ed December 22, 2017. https://www.insidehighered.com/advice/2017/12/22/faculty-trained-speak-about-systems-oppression-should-not-be-required-be-neutral .

[30] I have used LawClass Feedback for three semesters now and have seen improvement, but correlation is not causation and I have far too small a sample or repetitions to draw conclusions.

[31] Jon Meacham’s eulogy of George H.W. Bush https://www.c-span.org/video/?c4764801/jon-meacham-delivers-eulogy-president-george-hw-bush-state-funeral .

If 6 Turned Out To Be 9, I Don’t Mind (But 3? or 2!): The Uneven Implementation of Mandatory Experiential Credits

Robert Kuehn, Washington University School of Law, blog post author 

Legal education took almost 100 years before requiring that all J.D. students receive instruction in professional skills and, even then in 2014, acted modestly.[1] In adopting a six-credit experiential coursework requirement beginning with students graduating in 2019, the ABA rejected calls for making one quarter of a graduate’s legal training in experiential courses and mandating a law clinic or externship experience.[2] The limited six-credit requirement contrasts sharply with the one-quarter to one-third skills training required by other professional schools.[3]

A new survey of graduation requirements and student handbooks posted by law schools shows that 90% of schools reacted to the new ABA requirement by simply increasing their experiential requirements from “a course” (the prior ABA requirement of as few as one professional skills credit) to the minimum six credits. But a number seized the opportunity to examine their curriculum and impose additional experiential requirements, while a few relabeled an existing spring first-year legal practice course as “experiential” to avoid requiring additional training for their students.

As the table indicates, 22 schools now require students to graduate with more than the minimum of six total experiential credits from a law clinic, externship, or simulation course(s). Some (Washington & Lee, UDC, & CUNY) had implemented significant additional experiential requirements before the ABA adopted six credits. But others (e.g., Baylor, Case Western Reserve, Penn State-Dickinson, Widener-Delaware & McGeorge) followed the ABA’s action by going well beyond the minimum. For these schools, the new requirement for 6 turned out to be 9 [4], or even as many as 17, experiential credits for all of their graduates.
 

Schools Requiring More than 6 Experiential Credits Number of Required Credits
Washington and Lee* 18
Baylor 17
California Western* 15
District of Columbia* 14
Case Western Reserve* 12
Pennsylvania State – Dickinson* 12
Widener – Delaware* 12
McGeorge* 11
City University of New York* 10
Dayton* 10
Arkansas, Little Rock* 9
Liberty 9
Loyola – New Orleans 9
University of Washington 9
Western Michigan* 9
Chicago† 8
Elon* 8
Stanford 8
Touro* 8
West Virginia 8
John Marshall* 7
Ohio Northern* 7
* requires or guarantees law clinic or externship
† counts first-year spring legal practice course

Most schools mandating more than the ABA experiential minimum also require or guarantee that each student graduate with a law clinic or externship experience, indicated by an asterisk in the table. Since adoption of the new experiential requirement, 30 schools have implemented a new clinical requirement or guarantee. In total, over one-third of schools now require or guarantee each graduating J.D. student enrollment in a law clinic or externship course — 43 schools require a clinic or externship of at least 2 credits and 32 schools guarantee that training.[5] Prior research shows that students at schools adopting a clinical requirement or guarantee do not pay more in tuition for this additional training, contrary to claims that universal clinical training is cost prohibitive.[6]

Schools requiring more experiential coursework than the ABA requires are to be applauded. But there is continued resistance to experiential training at many schools. One-fourth of schools (50) limit the number of law clinic or externship credits or courses a student can apply toward graduation requirements. The most  common restriction is on externship participation, with 39 schools limiting total externship credits or courses, while 8 schools cap law clinics. Sixteen schools limit combined law clinic or externship credits or courses, with one school even capping total experiential credits. These restrictions are in addition to the limit in ABA Accreditation Standard 311(a) on non-law classroom credit hours. Standard 311 applies to externships, but not law clinics or simulations, and prevents some students from enrolling in externships or other useful practice-oriented experiences like moot court and interschool skills competitions.

A few schools have even chosen to simply recast long-standing first-year course credits as experiential as a way to meet the new 6-credit requirement. When the proposed amendment to increase experiential credits came before the Council of the ABA Section of Legal Education and Admissions to the Bar for approval it excluded credits obtained in the first year. One member argued, without support, that not all schools would be able to get to six credits, something clearly proven untrue. Others argued that accreditation standards should not be prescriptive and moved to strike “after the first year” from the proposal, claiming that permitting first-year courses to count would spur “innovation” in the curriculum. Persuaded, the Council removed the requirement that the minimum of six credits must be obtained after the first year.

There is scant evidence this change in the proposed requirement has spurred innovation in the first-year curriculum, with Boston College an exception by now requiring all first-year students to choose among experiential-based electives in the spring semester. There is evidence, unfortunately, that a few schools have taken their required first-year spring semester legal practice course (a persuasive legal writing course at 95% of schools)[7] and simply recharacterized it as a three- or four-credit “experiential course.” At those schools, the anticipated new six-credit experiential training mandate became a two- or three-credit upper-level course requirement, mirroring the old “a course” requirement the ABA had sought to abandon.

Schools that restrict experiential training for their students or engineer around ABA requirements reflect a resistance to professional skills training that was the hallmark of most schools in the 20th century. They prove, once again, that even when the ABA modestly attempts to make legal education more connected to the actual practice of law, many schools will resist. While this is a pity, the greater pity is the ABA Council’s condoning this race to the bottom.

 
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[1] RPeter A. Joy, The Uneasy History of Experiential Education in U.S. Law Schools, 122 DICK. L. REV. 551 (2018), available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3129111.

[2] Clinical Legal Educ. Assn. (CLEA), Comment on Draft Standard 303(a)(3) & Proposal for Amendment to Existing Standard 302(a)(4) to Require 15 Credits in Experiential Courses (July 1, 2013), at http://cleaweb.org/Resources/Documents/2013-01-07%20CLEA%2015%20credits.pdf ).

[3]Robert R. Kuehn, Pricing Clinical Legal Education, 92 DENVER L. REV. 1, App. A (2014), available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2318042.

[4] Jimi Hendrix, If 6 Was 9, at https://vimeo.com/231127630.

[5] Required or Guaranteed Clinical Experience (CSALE Oct. 2018), at https://perma.cc/3CCA-53UQ.

[6] Robert R. Kuehn, Universal Clinical Legal Education: Necessary and Feasible, 53 WASH. U. J.L. & POL’Y 89 (2017), available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2942888.

[7] ALWD/LWI ANNUAL LEGAL WRITING SURVEY, REPORT OF THE 2016-2017 SURVEY 25 (2018), available at https://www.lwionline.org/resources/surveys.

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