Sunday, January 11, 2015
On January 1, 2015, there was one fewer law school clinic in America. The Lewis & Clark Legal Clinic, one of the oldest and most well-respected clinics in the Northwest, silently closed its doors.
The Lewis & Clark Legal Clinic provided debtor-creditor, landlord-tenant, and family law services, including a significant amount of work representing victims of domestic violence. The clinic was founded in 1971, and together its full-time faculty, Dick Slottee, Teresa Wright, and Mark Peterson had spent approximately fifty years combined at Lewis & Clark. All had security of position; in fact, Professor Slottee, who was the clinic director, had tenure. The clinic served approximately 230 low-income and indigent clients per year and involved 35 to 70 students.
As recently as last summer, Lewis & Clark Law School touted the clinic’s work in Advocate Magazine. In the words of one recent Lewis & Clark alumna, “The value derived from the Lewis & Clark Legal Clinic is immeasurable. It teaches practical skills and it provides students a special opportunity to put the legal theories we learn in an abstract manner in the classroom into practice . . . The focus is on the students and the students are wholly supported.”
According to the Lewis & Clark Law School Dean, Jennifer Johnson, the decision to close the clinic was driven by budget constraints. She indicated that the goal was to offer lawyering skills and opportunities “for all students in a cost effective manner” and stated that “Going forward, we must focus our in-house clinics on those with significant fund raising potential,” while asserting that “current budget realities-for both the law school and our students-make this move necessary.” The rumor is that Lewis & Clark had an unexpected million-dollar shortfall and had already significantly cut the library budget (the largest budget item other than personnel), and so moved to the next largest item in the budget: the law school’s clinic. True or not, Johnson’s own framing of the decision exclusively as a financial one is worrisome.
In Pricing Clinical Legal Education, 92 Denver University Law Review 1 (2014), Robert Kuehn of Washington University Law finds that offering clinical opportunities to law school students has no net impact on tuition and concludes that offering clinical opportunities to students is determined by the law school’s will to offer such opportunities to students. As law schools consider how to balance the budget and keep the lights on during the worst downturn in law school enrollment in modern history, it is natural that some administrators may be tempted to conduct a casual analysis and conclude that high enrollment courses are the answer and try to cut costs by reducing smaller experiential courses.
However, a familiarity with effective pedagogies and the retention yields of various methods reveals that not all courses are equal when it comes to learning outcomes. The value of courses and teaching methods should not be measured predominantly by teaching or staffing inputs, but rather by learning efficiencies, efficacies, and outcomes. After all, if we hold ourselves out as educators, we owe it to our students to have a reasonable familiarity with effective educational methods and to utilize and prioritize those, rather than continue to offer course and curricula designs that have been scientifically proven by study after study to be ineffective.
Accepting tuition in exchange for enrollment in courses designed around learning methods that have been scientifically proven to be ineffective is unconscionable. Those simulated practice courses, externships, and clinics may cost more than placing 80 students in the room with a single lecturer, but they are far more likely to produce better learning outcomes for our students. Can you imagine a law school committed to designing and offering courses according to learning outcomes rather than cost input?
Even if one is not motivated by effective pedagogy, from a business perspective, we know that students care about clinics. A recent survey indicates that clinics and externships are one of the most significant factors students consider when deciding where to attend law school (location is number one).
After the decision to close the Lewis & Clark Legal Clinic was announced in September, another faculty member, Kathy Hessler, sent an email to the national clinic listserv informing the members of our community. She pointed out that the Lewis & Clark Legal Clinic was the only one at the law school that was funded directly by the law school. It is hard to imagine other law school courses being expected to go out and procure their own funding.
When one considers the effectiveness of clinical pedagogy, as well as the new ABA accreditation standards mandating experiential education, it is deeply concerning that an educational program built around one of the most effective learning methods known to us would be singled out to be "self funded."
Even more concerning, though, was the resounding silence of the national clinical community to the news of the decision. Just a handful of emails were sent in response. At the Northwest Clinical Conference in October, attendees voted to send a letter to the Lewis & Clark Dean expressing our deep concern over the decision and offering our support to reverse the decision. In response, Dean Johnson emailed each signatory and the dean of the person’s home law school, and directed them to have our dean contact her if we would like “further input into this issue.” Was she trying to intimidate us into silence with this power play? Perhaps, but apparently, there was no need. I have said nothing since. Have you?
This is the way a clinic ends. This is the way a clinic ends. This is the way a clinic ends. Not with a bang, but with silence.
Friday, October 24, 2014
This year at Pepperdine we launched the new Community Justice Clinic. I teach and supervise the course, and it has been a unique moment in my career, to have the opportunity to design and launch a clinic completely from scratch. In my previous work at Faulkner Law in Montgomery, my first clinical teaching position after leaving practice, I inherited a domestic violence clinic and received a charge to start an elder law clinic with a large grant. This is my second year at Pepperdine where I have enjoyed the rare chance to start a new clinic from a blank slate. We have been able to test some philosophical ideas about clinical curriculum, pedagogy and design, and I am learning much.
Please indulge a long post about my reflections, life-long learning and professional formation. This is what we are about, after all.
With the opportunity to start a new clinic, I was tempted to replicate what I knew how to do, namely a domestic violence or elder law clinic, or another litigation based, individual representation clinic. There is, after all, something to be said for expertise. I have been a civil litigator in one form or another since graduating, and my field of inquiry, scholarship and activism has become domestic violence, feminism and family law. It would make sense for me to continue it, although I had become somewhat burned out and stagnated after seven years seeking civil protection orders and had lost my imagination about how such a clinic can look.
Instead, we started with curriculum and pedagogy and attempted to bend our practice to those needs. The clinical faculty, academic dean, curriculum committee and I looked at our current offerings to identify practice areas that we were not meeting. We had seven clinics in the School of Law, three for the regular JD program and three housed in the Straus Institute for Dispute Resolution. All of them are essentially litigation based and involve individuals as clients. The Legal Aid clinic is a general, poverty law clinic on Skid Row and handles family law, housing, consumer protection, tax and criminal expungement matters in a neighborhood with the highest concentration of homelessness in the country. The Special Ed clinic is a civil rights litigation clinic that represents families of children with disabilities in litigation against public schools to ensure compliance with federal civil rights laws. The Ninth Circuit clinic handles court-appointed appeals for indigent clients, typically with §1983 claims. In the Mediation Clinic, students work as mediators in small claims court between pro se litigants. In the Fair Employment & Housing Mediation Clinic, students work with mediator attorneys in the California Department of Fair Employment and Housing to mediate employment discrimination cases. In the Investor Advocacy Clinic, students represent investors as complainants in FINRA arbitrations.
(We wound up our Asylum & Refugee Clinic last year when its soft-money expired without a plan to sustain it through tighter budgetary times. This hard episode is full of its own lessons, worthy of a long post, about financing, faculty status, staffing structures and institutional preparation.)
We had plenty of good ideas for clinics that would involve litigation, and litigation is my background. Instead of replicating that style of practice, though, we considered what we were missing. We were missing transactional, tax, regulatory, entrepreneurship, policy advocacy and a host of other practice areas and styles of lawyering. Since I would be the teacher, however, and since expertise does count for something, I would not commit to areas of practice where I am weak, inexperienced or uninterested. I won’t confess here where I will not dare to tread, but will explain where we landed.
We wanted students to have an opportunity to represent organizations, so they can encounter the complex dynamics of client identification, of competing client voices, of conflicting loyalties, and of building sustainable institutions. We wanted to provide opportunities for corporate law practice, and we built in the possibility for policy advocacy in various forms.
We have two other pertinent forces in potential conflict. While Malibu is beautiful, it is a relatively isolated community in the most populous county in the country, and we wanted to make the clinic’s practice as convenient and accessible to students as possible. Having the clinic on campus, however, means doing public interest and social justice work inside a gated community inside one of the most affluent towns in the world. We do not want to carpet-bag a poor community with a colonial law practice from our seaside enclave but to be smart, compassionate and humble lawyers seeking to empower our clients.
Through this process emerged the Community Justice Clinic. In the CJC, we represent nonprofits, NGOs, community and religious organizations who are committed to justice and development work among vulnerable communities. We provide corporate legal services, like formation, governance and compliance matters, and we provide policy advocacy services for clients in pursuit of their causes.
(As aside, since this is a new area of practice and style of clinic for me, I sought some expert advice, primarily by volunteering to serve as a leader/facilitator for the Community Economic Development working group at the 2014 AALS Conference on Clinical Legal Education, full of expert practitioners and teachers in CED who represent nonprofits and community organizations. I admitted to them that I was a novice and hoped that being in the group would be useful, and they were completely generous and wise. I am grateful to this community that is new to me, and the sessions with them were immensely valuable in making early choices about the clinic’s design and practice.)
In client selection, we favor organizations with annual budgets of less than $1 million. We strongly favor clients who are committed to be part of the communities they serve, either by being led or organized by members of the community or by a demonstrable, long-term presence in the community. Our clients must be devoted primarily to seeking social, economic and environmental justice in their communities.
In practice, after front-loaded teaching on the law of nonprofits, ethics and professional responsibility, client interviewing and communication, and case evaluation, the students are primarily responsible for initial client interviews, engagement, case evaluation, investigation, research, advice and counsel, writing legally operative documents, and implementation with the clients.
So far, our clients include a shelter and housing project for homeless people on Skid Row and elsewhere in L.A., and we are working on a project to ensure compassionate care for senior residents with declining capacity when independent living becomes untenable. We represent a start-up nonprofit organizing to provide arts education and job training to teens in impoverished communities of rural farm workers. We represent a community labor exchange that works to provide humane, fair and safe work for day-laborers. We represent an NGO in India who provides legal services to victims of sexual violence, and we are providing research to support law reform initiatives in New Delhi. We represent an American nonprofit with a related African NGO that has been present for almost two decades promoting women’s economic empowerment, community organizing, sanitation and accessible water to people in east Africa. We are working to ensure that its corporate structure and practice across several initiatives is compliant and sustainable. The clients are extraordinary, and the work is complex and fascinating.
Lessons in Progress
So far, the CJC seems successful. The students are engaged, and the clients are pleased. We continue to identify new clients and are currently in discussions with a community agriculture project that is providing models of sustainable, local and organic farming and advocating for humane, just and empowering practices for California farm workers.
As a teacher, I am learning new ways to calibrate student work and the pace of the class. This is not new to clinical education; it is endemic to all programs committed to good pedagogy. These particular challenges are new to me after having run clinics with discrete, limited scopes of representation where I could control volume and matters to fit a semester. I am learning now how to manage student load and projects for a 3 unit, semester long clinic with clients and matters that require slower, longer and more strategic work. We are considering adjustment to enrollment limits, academic credit and matter selection.
I am learning lessons about balancing projects and clients, to serve them well but to avoid having one client or project dominate the clinic’s practice. Some clients have complex business that could preoccupy us all. Some clients have solid potential projects but do not communicate with the students. Some clients have projects that are critical and important but that are not complex but are repetitious and time-consuming. I do not yet have an expert’s grasp of measuring a client’s matter at the outset so have had to adjust assignments and expectations on the fly. At the beginning of the semester, I told the students that part of their experience would be learning with me how this practice would work and that they would have a critical role in establishing our practices and policies. They have taken to the work.
We are considering future plans for the clinical program at the School of Law and are evaluating potential plans through a similar process. We are assessing gaps in the curriculum, especially practice areas and styles of lawyering that we presently do not offer, student interests and demand, community needs, faculty talent and calling, and the unique demands of our market and neighborhood. Instead of being driven by available soft-money, popular trends, or the faculty’s boutique interests, we want to build a program that offers comprehensive pedagogical offerings for students that also fulfill our missions of justice in the world. The greatest problem before us now is narrowing the list of worthy and righteous ideas and counting the opportunity costs of choosing a path.
I have learned that I need not adhere to a single form of clinical practice, but I have also learned to ensure that the clinic receives full, sustainable support from the law school. I have learned again the virtues of bending the practice to the pedagogy but learn also that this will necessarily limit the scope of our practice and our ambitions for clients. I have learned that for every choice we make, we are bound to disappoint someone, maybe even ourselves, by excluding another potential path. We must build a coherent, integrated program with a cohesive narrative to guide us through the dilemma of choosing from many good options. We will never finish the work of justice or education, but we cannot wait for the ability to do everything all at once.
I confess to having become too committed to a single vision of clinical teaching in my earlier years directing a program. At a larger school in a far larger market, we must develop as many opportunities as possible without sacrificing quality and rigor and without undermining generations of advances in the clinical movement. In addition to traditional clinics, like the CJC, and traditional externships, which we handle by the hundreds, I have had to become comfortable with hybrid forms.
At Pepperdine, we call these courses practicums, and we have learned in fits and starts about how to design and launch them. So far, we have found success with two practicums in particular. Practicums have been our best option for providing options, beyond externships, for students interested in criminal justice.
First is our Criminal Justice Dispute Resolution Practicum. In the practicum, students learn conflict resolution and peacemaking methods then accompany the teacher for a semester into the L.A. County Jail to help teach these skills and virtues to inmates, in hopes of improving the inmates’ experiences in jail then to empower them once they are free. The students learn cultural competence and compassion, gain insight from people bound by the criminal justice system, witness life in incarceration, and participate in creative, restorative justice.
Second is our Federal Criminal Practice Practicum, the idea of an alum who is a U.S. District Judge. At her initiative and guidance, we created a course where students rotate in a semester through the United States Attorney’s Office, the Federal Public Defenders’ office and the judge’s chambers on the U.S. District Court. The students produce substantive written work at each stop and can compare and contrast the culture, values, roles and responsibilities of every side of federal criminal practice.
We have had one practicum that did not fare well. In collaboration with a government agency, we worked to create opportunities for students to represent aggrieved tax payers in administrative appeals. Conceptually the work was good, but the practice for the students was not sustainable. They were too distant from clients. The cases were either too far advanced or were too basic, and the process was too byzantine to generate steady, useful teaching cases for a regular rotation of students with a part-time teacher. The internal practices of the agency could not accommodate sufficient supervision or flexibility, so we closed the project after a term, with good will toward our collaborators.
Without immediate resources to launch fully fledged and staffed clinics for every practice area, practicums have become a nimble form through which we can leverage creative ideas for sound courses. We have not had universal success with all of our projects, but we see a way to expand and improve our offerings into important practice areas.
The Road Goes Ever On and On
We have adopted California’s new bar admission requirements as graduation requirements. With this first year class, students must provide 50 hours of pro bono service during law school, and they must take 15 units of professional skills courses. While the bar’s rules are still pending, we expect that students can earn dual-credit for both new requirements in clinics, practicums and qualifying externships. Thus, it becomes imperative that we establish sufficient opportunities for our students to satisfy these requirements well and with rigorous teaching and learning. These challenges are not peculiar to Pepperdine, but every school necessarily must assess its own context, resources and values. Since I joined the faculty last year, these are among the lessons we have learned in the perpetually evolving landscape of our work.
Tuesday, September 16, 2014
I admit that the one email I dread every September is the announcement of the MacArthur Fellows --nothing like feeling totally inadequate three weeks into the new school year by reading about the exceptional accomplishments of this extraordinarily creative and hardworking group of individuals. I personally much prefer the announcement of the Darwin Awards.
But this year when I saw the dreaded email from the MacArthur Foundation, I quickly noted that the clinical community’s own Sarah Deer has been selected! Professor Deer is on the faculty of William Mitchell College of Law and is co-director of their Indian Law Clinic. She is a tireless advocate who has been instrumental in developing legal protections for Native American victims of domestic violence. A description of Professor Deer’s work can be found here. A full list of this year’s MacArthur Fellows can be found here. Congratulations, Professor Deer, on a truly extraordinary and well-earned distinction!
September 16, 2014 in Clinic News, Clinic Profile, Current Affairs, Domestic Violence, Faculty Profile, Family Law, Job Opportunities & Fellowships, Promotions, Honors & Awards | Permalink | Comments (0)