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.

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Will Proposed Revised ABA Standards Result in Less Diverse Faculties and Monolothic Thought?

Concerns about the impact of the ABA proposed revised accreditation standards governing faculty  on diversity on law faculty and on diversity of thought have been raised eloquently in a Law Professors Letter to the ABA on Tenure that has circulated on the minority and clinic listservs as well as in other areas.    The  deadline for signing onto the letter is this Monday October 7th,  You can sign here:

https://docs.google.com/forms/d/16W-bQtXqbk09plpoOVpQQ5s8ZriYm0VeucU38KAWQcU/viewform

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.

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