Clinical Law Prof Blog

CLEA Newsletter Fall '14: Call for News

On behalf of the CLEA Newsletter committee, I am happy to announce that it is once again time to send information for the CLEA Newsletter.  We invite you to submit your creative writing and shorter articles on clinical pedagogy and social justice topics.  We also welcome your good news: promotions, moves, new experiential teachers, retirements, publications (hyperlinks also welcome), and awards.  

As a reminder, CLEA no longer publishes law school press releases or clinical program news, in part to avoid duplicating information published in the AALS Clinical Section Newsletter.  We have already heard from clinicians with interesting projects, and we hope that you will consider allowing CLEA to feature your writing.  The deadline for submissions for the Fall 2014 Newsletter is Monday, December 1, 2014. Please e-mail them to me at [email protected], and please contact me with any questions.

Thanks, and best wishes,

CLEA Newsletter Committee

Tanya Asim Cooper, D’lorah Hughes & Kate Kruse

Case Rounds: Lessons from Launching a New Clinic at Pepperdine

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.     

Design

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.   

The Clinic

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.   

Imagination

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.  

CLEA's Statement on Law School Clinical Program Rankings

I received my ballot this week for the U.S. News Rankings related to law school clinical programs.   The instructions include this guidance:  "Identify up to fifteen (15) schools that have the highest-quality clinical training courses or programs.  In making your choices consider all elements that contribute to a program's academic excellence, for example, the depth and breadth of the program, faculty research, publication record, etc."   This is not really guidance at all, and it does not articulate any useful metric of distinguishing programs.  

CLEA, however, attempts to inform this task with better wisdom in its now annual Statement on Law School Clinical Program Rankings.   This is good advice and asserts sound markers of excellence for programs in a shared struggle. 

Here is the Statement in its entirety from the CLEA site: 

CLEA'S STATEMENT ON LAW SCHOOL CLINICAL PROGRAM RANKINGS

The Clinical Legal Education Association (CLEA) recognizes that many who receive US News & World Report ballots in their capacity as clinical directors or faculty members find this ranking process very uncomfortable. There are a number of problems with the ranking of clinical programs, not the least of which is that it places us in competition with each other, when we as a group see ourselves in a shared struggle for social justice, equality, and improved legal education. Second, there are no articulated factors for ranking clinical programs, so to a degree the voting is a bit arbitrary. Third, some schools unfairly suffer because they do not have the budget or the support of their administration to produce and mail marketing materials or to send their clinic faculty to annual conferences.

While we might wish the rankings would disappear or hope to figure out a way to overcome the collective action problem that bedevils efforts to respond creatively, the USN&WR rankings have remained a feature of our collective landscape. So, what can we as faculty who teach clinics do? CLEA, acting on the recommendation of its Rankings Committee (Margaret Johnson, Praveen Kosuri, Bob Kuehn, Perry Moriearty, Michael Pinard, Karen Tokarz & Ian Weinstein) urges those ranking clinical programs to focus on factors that promote principles for which CLEA advocates, namely the increased presence of clinical education (including externships) in law school curricula, security of position for clinical faculty, and diversity. In evaluating clinical programs, CLEA urges voters to consider: 1) the number of clinical and externship slots available relative to the student population at a school; 2) the breadth and quality of clinical curricular offerings available to students; 3) the law school's security of position, academic freedom, and governance rights for faculty who teach clinics; and 4) the extent to which the school has fulfilled the goal of diversity in hiring for clinical positions with long-term security.

CLEA also urges those who receive ballots to consult their clinical colleagues for their views to increase the range of informed opinions reflected in the balloting.

Northwest Clinical Law Conference Bittersweet

The Northwest clinical law community often views itself as one of the most happy and energetic groups in legal education. It is easy to see why they are such a jubilant group.  First, they work in a natural setting that rivals some of the most beautiful regions in the world (within a short drive of a rugged forested coastline, the volcanic Cascades, and wine country world-renowned for its pinot noir).  Second, the social justice-minded cultural values of the Northwest closely align with core values of clinical legal education, which creates a natural environment for clinical opportunities integrated with the larger community. Third, the region allows room for personhood and pioneering individuality in a way that is well suited to clinical educators trying to inspire their students through transformative professional experiences.

However, not even the breathtaking setting of the Columbia River Gorge could distract the Northwest clinical community from the somber mood that hovered over the group’s regional conference this past weekend.  From the group’s first gathering at Friday’s reception, all were mindful and reflective of the recent unexpected decision to close one of the oldest and most respected clinics in the Northwest, the Lewis & Clark Legal Clinic. That closing threatens the continued participation and contributions of three of the most well-respected and valued clinical faculty in the Northwest: Mark Peterson, Richard Slottee, and Terry Wright.  Their expected absence in years to come, as well as the planned retirement of Larry Weiser of Gonzaga after 33 years, could mark the end of an era in the Northwest clinical community.

Despite the pall in the air, the conference moved forward with presentations and discussions from a variety of new as well as experienced faculty from Seattle University, University of Washington, Gonzaga, University of Oregon, Lewis & Clark, University of Montana, the University of British Columbia, and Willamette.  The community learned about new clinics at the University of Oregon and the University of Washington, examined models of collaborating with volunteer attorneys, externships, legal writing faculty, and law librarians, considered the ethical challenges of representing children in law school clinics, and provided feedback on a book Deborah Maranville is co-editing on legal education.  A new organization was even created to support externship directors in the region.  All in all, it was a productive conference.

The group has already scheduled the dates for next year’s conference: October 2-4, 2015, at Sleeping Lady in Leavenworth, Washington (http://www.sleepinglady.com/).  Before they left though, the conference participants did something that this group rarely does.  They entered a formal session, discussed the tragedy unfolding at Lewis & Clark, and unanimously agreed to express their deep concern over the decision to close the Lewis & Clark Legal Clinic to the Lewis & Clark administration, the AALS Section on Legal Education, and the ABA Section on Legal Education.  When those letters are available, I will post them here.  In the meanwhile, I encourage you to contact our colleagues at Lewis & Clark with any suggestions or insights you have that may be helpful to them in these deeply disturbing circumstances.   

Five Questions for Luz Herrera

Prof. Luz Herrera returned to her home this year as UCLA's Assistant Dean for Clinical Education, Experiential Learning, and Public Service.   She is next in our Five Questions series, and I am happy to post this conversation with my new neighbor in L.A. 

(See our previous Five Questions posts with Tamar Birckhead of UNC and Stacy Caplow of Brooklyn.)

1.     You’re returning home to Los Angeles.  How has time in other cities and other law schools informed your renewed work in LA?

Working at various law schools and in other cities has helped me understand the loving and entrepreneurial spirit of El Pueblo de Nuestra Señora La Reina de Los Angeles de Porciúncula—the original name of the city of Los Angeles. Innovation abounds here—in the entertainment industry, the nonprofit community, through environmental advocates and the entrepreneurs of Silicon Beach. The spirit of Los Angeles is one that encourages new ideas, engagement and the use of diverse approaches. I am a product of that spirit and I am happy to return to this community.  

2.    In San Diego, you were heavily involved in moderate-means incubator programs.   What is a modest-means incubator, and how do you plan to integrate that work into your new role at UCLA?

A modest means incubator is a program that provides support for attorneys who are establishing law practices to serve low and moderate income populations. The purpose of these programs is to increase access to justice while helping attorneys become self-sustaining.  You need both components to foster success. An incubator program cannot solely focus on providing free services because it also has to balance the interests of the individual lawyer participants. If you are interested in my thoughts on the matter, you can find additional information in my last article, Encouraging the Development of Low Bono Law Practices, at

http://digitalcommons.law.umaryland.edu/cgi/viewcontent.cgi?article=1229&context=rrgc.

My involvement with modest means programs and my interest in incubators started when I practiced law in Compton. The belief that law schools should support graduates who start their own law practices and encourage the greater provision of services to underserved communities is part of what led me into legal education. I have been fortunate to work with individuals across the country to advance the modest means conversation, particularly as it relates to the role of the solo and small firm bar. I am proud of that work and the implications it may have for increasing access to legal services.

Modest means incubators have deep theoretical roots at UCLA School of Law, and I look forward to working together with our renowned faculty and staff as we advance and tailor a plan for the establishment of such incubators to advance the public interest.  

3.    What are your new ideas and visions for UCLA’s clinical programs, their roles in the university and in the city? 

The vision for UCLA School of Law’s experiential learning program was articulated by the faculty in 2013. It builds on UCLA Law’s strong history of innovation and pedagogical goals for clinical education, and it also offers opportunities for new models that honor that tradition. We are in the process of flushing out the details to implement the vision.

At the heart of the program is the belief that a legal education should equip students with the fundamental skills practitioners need and enable them to use the skills in advanced courses. Our plan is to offer students a sequenced approach to experiential education, introducing ideas and fostering skills that build on one another during the course of a student’s law school training. The academic and hands-on learning will begin on day one. Students will be introduced to the attorney-client relationship in their first year. They will learn critical fact-gathering and interview skills and also participate in a live-client field placement. In their second and third years, students will be guaranteed the option to enroll in each of the following:

(1)  foundational skills courses organized around discreet areas of skills of broad applicability; and

(2)  an advanced capstone experience that integrates skills, substantive law and a focus on the professional role of lawyers.

We are in the process of mapping out a curriculum and providing a breadth of opportunities that allows students to take an active role in course selection and be agents in their own professional development.

4.    What advice would you share with a clinical teacher newly moved to Los Angeles to understand the community and the ecosystem of public interest, social justice and pro bono lawyers? 

Advancing social justice has been and will continue to be an integral part of clinical legal education. However, as law schools move to a more inclusive agenda of experiential learning, we must find ways to bridge the needs of our students and those of communities that can most benefit from the increased provision of legal services.

The unmet legal needs in Los Angeles are greater than our clinical budgets and larger than what our institutional priorities enable us to tackle. For this reason, it is important to begin by mapping out existing resources, developing relationships with local partners and assessing the needs of both the community and the students.

A community assessment must complement a self-assessment and must reveal your ability to offer students a strong pedagogical framework for the work you will undertake. After all, we exist because our students entrust us with the responsibility to prepare them for law practice.

In working together with the public interest community, we also have an opportunity to focus on areas that pro bono lawyers or legal services programs do not have the capacity to address.

5.       Southern California is a rich environment for social justice causes, but what do you perceive as a bright spot in our city for the advancement of communities on the margins?  

There are many bright spots in this city, and many communities interested in partnering with law schools. Together, we can provide critical services to the community while we train the leaders and advocates of the future.

 

Implicit Bias, A Listserv Discussion & Compilation of Resources

Updated on October 29, 2014

This past spring, Amna Akbar kicked off a rich discussion on the LawClinic listserv on how to name and talk about race and cross-cultural lawyering in the clinic, and asked whether other clinicians have had their students take a Harvard implicit bias quiz (or another) and, if so, how it went. 

With their permission, I have compiled in this post all the responses, resources, activities, links, attachments and ideas that our wonderful community contributed (hyperlinks to each contributor’s email).  From Amna’s initial set of questions, two related threads (“Is it racist to talk about race?” and “Is this covered with incoming or large segments of law students?”) emerged and are also included here. 

I found these discussions so helpful that I am retooling my class on cross-cultural lawyering, and I hope that you will also find this post helpful and continue the discussion through the blog comment feature, or please email me and I will add your suggestions and any experiences you would like to share. 

How to name and talk about race in the clinic

Amna Akbar suggested The Five Habits of Cross Cultural Lawyering by Sue Bryant and Jean Koh Peters (chapter; website), and has used an in-class activity and debrief using one of the habits in students’ casework.  

Karen Yau: “I currently volunteer at NYC's EEOC as a pro bono mediator.  Yesterday Jerry Kang from UCLA, visiting at NYU, gave a lecture to some 30 EEOC personnel about implicit bias and as a tool to discuss race, racism, and inequality.  I suggest that you look up his and his colleagues’ work ( see, e.g., Rachel Godsil). For many years, I was a workers' rights lawyer at the New York State Attorney General's Office. Before then, I was teaching and spent a year at the Syracuse University College of Law as the director of civil litigation clinic.  I remember giving a class seminar on cross-cultural lawyering and asking students to read Lucie White's Mrs. G and Sunday Shoes” (Lucie E. White, Subordination, Rhetorical Survival Skills, and Sunday Shoes: Notes on the Hearing of Mrs. G, 33 Buff. L. Rev. 1 (1990); online version) and asking them to both identify things about Mrs. G's life that were the same and different from their own.  I remember it as a successful class.”  Karen also recommended these resources: the Harvard Implicit Bias Tests; the Perception Institute; Jerry Kang, Trojan Horses of Race, 118 Harv. L. Rev. 1489 (2005).

Stephen Ellman: “Perhaps a way to capture students’ attention would be to discuss the recent study of faculty members’ greater likelihood of responding, and of responding positively, to otherwise-identical student e-mails expressing admiration for their work and asking to meet with the faculty member – depending on whether the name of the student appeared to be a white male’s name or the name of a woman or minority. It was discussed in various media outlets a few weeks ago, including on NPR.”

Gillian Dutton: “I teach in the Externship Program at Seattle University and regularly cover this topic in the externship seminars (criminal, judicial, civil, and international). I used to raise it when I taught a Refugee and Immigrant Advocacy Clinic but there is so much new material (both law review and research) that it has become a subject that can easily be covered in many different ways. I do have students take the implicit bias test and have an in-class exercise for discussion of the results. I emphasize how being able to discuss bias is crucial to being an effective advocate in both negotiation and litigation, as for example in conducting voir dire. I have also adapted an exercise from SPLC Speak Up! series as a way to help students address micro-aggressions with colleagues in the work place.  In addition to teaching these issues in class, I have been presenting on the topic to advocates, client groups and legal services advocates and find people are hungry for ways to start the discussion. As a white woman, I know that this is an area where I have much to learn but I am happy to share with you the materials I have found so far.”

Kelly Browe Olson: “I use these (Harvard Implicit Bias) tests in my mediation clinic course every semester.  I ask the students to take three tests of their choosing.  We also have reading on biases and I have the students watch the movie Crash. While I used to have the students bring in notes on their results, several of them shared in their journals that they were concerned about what their classmates would think of their results. I focus now on their reaction to the results and their concerns about how they might be perceived based on the results. Students who wish may discuss their results. I start by sharing my surprise at the results I had when I took several of the tests. While all the discussions are different I find that the students enjoy relating the tests and movie to issues of perception, point of view and bias that we have previously touched on in class.”

Natalie Chin: “Here is another resource: Written in Black & White: Exploring Confirmation Bias in Racialized Perceptions of Writing Skills. This is a recent study that demonstrates ‘confirmation bias.’  Law firm partners were given the exact same legal memo but told that one was written by a Black associate and the other by a White associate. The findings showed that the law firm partners, at a much greater rate, commented negatively on the memo they thought was written by a Black associate.”

From the study: “This memo was then distributed to 60 different partners (who had previously agreed to participate in a 'writing analysis study' from 22 different law firms of whom 23 were women, 37 were men, 21 were racial/ethnic minorities, and 39 were Caucasian. While all of the partners received the same memo, half the partners received a memo that stated the associate was African American while the other half received a memo that stated the associate was Caucasian: The exact same memo, averaged a 3.2/5.0 rating under our hypothetical 'African American' Thomas Meyer and a 4.1/5.0 rating under hypothetical 'Caucasian' Thomas Meyer. The qualitative comments on memos, consistently, were also more positive for the 'Caucasian' Thomas Meyer than our 'African American' Thomas Meyer.”

Emily Benfer: “Thank you for posing the question about implicit bias. (I am making detailed notes about the helpful replies to improve our approach!) I wanted to add a few resources to the list. These are largely inspired by the work of Tirien Steinbach and Jeff Selbin.  Essentially, we have found that students participate more freely in discussions and remain more aware of implicit bias if we complement the discussion with techniques to address it and heighten their own awareness. 

We ask the students to take two implicit bias tests and complete readings on implicit bias and mindfulness prior to class.” (Emily’s lesson plan – download 1 below).  “In class, we discuss the background of implicit bias (where it comes from; how common it is; why it is important; and the effect on interviewing, client relationships, court systems, judiciary, etc.) and the results of the tests. The past few semesters, students have also shared their own experiences with bias (their own or someone else's bias towards the student). The students always agree that we should try to overcome implicit bias in our own practice to be effective, to be good attorneys and for the sake of society. Once we have obtained agreement, we turn to strategies for ensuring implicit bias does not affect the students’ judgment--namely, mindfulness and confronting assumptions. Each student practices the various strategies throughout the semester and reflects on the outcome and their usefulness. In the semesters that we did not include the mindfulness strategies (the response to the problem), the students often left feeling a sense of despair about the role of implicit bias in society and their contribution to it. They withdrew instead of bonding together with a sense of purpose. 

In future semesters, we are going to dedicate the first 10 minutes of class to a mindfulness exercise (something we learned about at the last clinical conference from the University of Miami presenters). The benefits seem to span into every area of practice. 

Here are a few of the resources we have used to prepare ourselves or students for class:

• Justice Michael B. Hyman, Implicit Bias in the Courts, 102 Illinois Bar Journal Magazine 40 (2014)
• Leonard L. Riskin, Knowing Yourself: Mindfulness in THE NEGOTIATOR’S FIELDBOOK
• Sue Bryant and Jean Koh Peters, Five Habits for Cross-Cultural Lawyering in RACE, CULTURE, PSYCHOLOGY, AND LAW (2004).
• Muneer Ahmad, et. al, Teaching Our Students to Challenge Assumptions: Six Practices for Surfacing and Exploring Assumptions, and Designing Action (Georgetown Clinical Teaching Fellows Seminar)
• Excerpt, Gerald P. Lopez, Rebellious Lawyering, One Chicano’s Version of Progressive Law Practice (1992)
• Angela Harris et al., From “The Art of War” to “Being Peace”: Mindfulness and Community Lawyering in a Neoliberal Age, 95 California L. Rev. 2073 (2007).
• Leonard Riskin, The Contemplative Lawyer: On the Potential Contribution of Mindfulness Meditation to Students, Lawyers and their Clients, 7 Harvard Negotiation L. Rev. 1 (2002).
• Thich Nhat Hanh, The Fourteen Mindfulness Trainings (2012)
• Harvard Implicit Bias Tests

Russell G. Pearce: I think you (and others) might find of interest my article, White Lawyering: Rethinking Race, Lawyer Identity, and Rule of Law, 73 Fordham L. Rev. 2081 (2005).  The article challenges the normalization of whiteness in law practice and discusses (with at least one clinical example) how normalizing whiteness undermines excellent lawyering.  Always happy to chat.”

Jamie Baker Roskie: “Really interesting that you should bring this up, as some colleagues and I were talking about this issue earlier this month. When I ran the Land Use Clinic at UGA we did environmental justice work, and I sometimes got pushback from students about discussing race as an underlying factor of EJ problems.  And, with even the Supreme Court pushing the idea that we should just get past addressing inequities tied to race, it can be difficult to create a good container for the conversation.

I wasn't aware of the implicit bias test when I was teaching, but I did sometimes use Bryant & Koh, and sometimes the "Sunday Shoes" piece (online version), along with my EJ materials, with varying level of success. Eventually I also brought the issue into a larger, semester-long discussion I had with the students about identifying value sets.   I gave a talk about this, and the related paper: Values as part of the Clinical Experience, 2 Pace Envtl. L. Rev. 160 (2011). 

Also did some mindfulness work with the students, generally around listening, using Norman Fischer's book Taking Our Places: The Buddhist Path to Truly Growing Up.

I think it makes sense to come at the issue from various levels throughout the semester.  Also, hearing the voices of peers helps, so if you can create safe space for students - particularly students of color - to talk about their experiences with bias it can make the conversation richer.”

Elliott Milstein: “We think that you will find helpful the two new chapters that Sue Bryant and Jean Koh Peters wrote on this topic.  Chapter 15 of our new book, Bryant, Milstein & Shalleck, Transforming the Education of Lawyers:  The Theory and Practice of Clinical Pedagogy (Carolina Academic Press 2014),  is entitled “Reflecting on the Habits:  Teaching about Identity, Culture, Language, and Difference;” in it Sue and Jean refine and revise their earlier work on cross-cultural lawyering.  Chapter 16, entitled “Talking About Race,” goes beyond the cross-cultural paradigm to get at the particular complexities of addressing questions of race.  It contains many ideas about how to help students understand the role of race in society and in their work and how to talk with them about it.” 

Amna Akbar: Thanks for the outpouring of support, advice, and solidarity. This community is so generous and committed, and for that I could not be more grateful. Thank you.

In further reflecting, I realize there are many struggles embedded within, including that in taking this on we are taking on a larger void in most law school curriculums--not to mention a willful ignorance in law itself, as Jamie Roskie pointed out. A big part of what I struggle with is that in trying to make “cross-cultural lawyering” palatable I water it down so much that we lose all focus on power and privilege, and students who would rather not talk or think about their race, gender, and class privilege or power get away with doing so too easily. How do we create space for students to enter these hard realities and wade through, rather than run away? It seems there's an important role here for courage, for modeling, and for naming, and for persistence (across semesters but also within the semester--learning is iterative!). We have to give the students a language so they can be self-aware, so they can self-construct the knowledge in some sense. 

Many of you sent useful guidance on how to use the implicit bias tests to create a larger discussion. I appreciate the input because it's not obvious how to use the tests as a source for discussion.  Here I think and hope the new chapter by Sue and Jean will help.  Also, FWIW, for others of you thinking about this, there are at least two prior recent chains on LawClinic that deal with these questions: one entitled “Dealing with student's experience of racism in court” by Joshua Tepfer from 2013, and a posting of a bibliography of resources by Laurie Barron in 2012 (download 2 below). If you have exercises or class plans for teaching implicit bias/race/gender/class, I'd love to see them and they would help me work through this, so please send my way.”

Mary Lynch: “I got a requested early glimpse of the chapters Elliott references and I was and am thrilled to have these thoughtful reflections available to our community. I found them to be very helpful in thinking about how to design student learning experiences focused on these issues. 

The next Best Practices book . . .‘Beyond Best Practices’ . . . will have a chapter devoted to intercultural and multicultural lawyering/sensibilities.  We are cognizant of the importance of the concepts of privilege, whiteness, oppression, etc.  as we talk about other cross-cultural learning, ideas and concepts in the context of the U.S. Legal system and law.  As lead wrangler on the chapter, I hope that we can contribute by identifying and assessing student learning objectives as well as focusing on teaching and learning activities in clinic and in classroom settings.  The evolution of even the nomenclature on this topic has made writing this chapter a challenge.  So many separate concepts are often contained in conclusive adjectives such as ‘cross-cultural,’ ‘diversity,’ ‘multi-cultural’ or ‘intercultural’ as well as the terms ‘competence,’ ‘lawyering,’ ‘effectiveness,’ or ‘sensibilities.’ 

Andi Curcio came out with a piece on assessment of intercultural sensibilities which I think will be both helpful and provocative and is based on interdisciplinary work she did: Andrea Anne Curcio et al., A Survey Instrument to Develop, Tailor, and Help Measure Law Student Cultural Diversity Education Learning Outcomes, 38 Nova L. Rev. 1 (2014).” 

Laurie Barron: “Lexi Freeman, from Denver, did a terrific presentation on this at Externships 7 entitled:  Homeland, The Wire, Friday Night Lights and Helping Externship Students Understand Privilege and Navigate Difference. She used terrific video clips which are available here (scroll down to the last concurrent session slot) and demonstrated the Privilege Walk for all of us. The session was incredibly inspirational and informative and I tried everything in my class right after the conference.  Thank you Lexi!!”

Jennifer Sperling: “Amna, your call for persistence and modeling resonated with me, and I thought you (and others) might enjoy this article, published in Slate yesterday, which discusses the results of a (limited, but interesting) MTV survey on millennials and race, which indicate that 18-24 year-olds have trouble talking explicitly about race, in part because they seem to have connected with a narrative of formal equality that makes any race-conscious dialogue challenging.  Overwhelmingly though, those surveyed said they would want to know if they had implicit biases, and want to have tools (and language) to address bias in themselves and their communities, which I read as encouraging, and empowering.  Thanks for raising this on the list – I took away a lot of thoughtful resources from this thread.”

Leonard Sandler: “I have truly enjoyed the conversations and materials about implicit individual and institutional bias and disparities based on race, gender, disability and other characteristics. For the past two years, we have partnered with community organizations to identify, document and try to resolve racial disparities in law enforcement, education, transportation and jobs. The clinical law students and I attended several workshops on implicit bias that were facilitated by people with great experience, savvy and teaching skills. I have attached some of the materials and homework we were assigned (Downloads 3-10 below)– joined by staff, faculty, students and administrators from several departments. I think that implicit association tests should be accompanied by workshops or structured discussions to help us unpack the subtleties and nuances of the instruments and the issues.

By the way, our Law and Policy in Action clinical team completed the first phase of a project with the City of Iowa City to evaluate and recommend corrective measures to improve the city’s outreach and recruitment effort. It was the first step in the aftermath of a report on Racial Equity report released by one of our community organization clients. I have enclosed the presentation slides (Download 11 below) we used during our meeting with the City Attorney, Assistant City Manager, Equity Director/Human Rights Coordinator and the Human Resource Administrator.

I’d be interested in knowing of other clinical law projects that are addressing similar issues.”

Ascanio Piomelli: “To add to the list of materials on the IAT and cross-cultural interaction, I hope that some of you may find something of value in my essay, Cross-Cultural Lawyering by the Book: The Latest Clinical Texts and a Sketch of a Future Agenda, 4 Hastings Race & Poverty L. J. 131, 166-79 (2006).”

Bob Seibel: “Thanks for sparking a great discussion.  Your post puts the issue in the broader context of power dynamics and that can be a useful and less threatening starting point, especially since students are probably acutely aware of the power imbalances in supervisor/student relations and faculty/student relations.  In the externship world we have found that it is often useful to address power issues so that students who are reticent to assert their learning agendas at a placement become more acquainted with techniques to do so and of the impact of their feelings of being powerless in the situation.  In house clinics have some of the same issues arise, but fortunately most clinic supervisors are aware of the power dynamics and we try to minimize the negative effects. Students may have an easier time moving to race, gender and other biases when they start with some aspect of power issue that they personally relate to.

Similarly, many students have a concern that clinic clients won't take them seriously as professionals because of their young age and you can use this bias issue to open up discussion to other bias occurrences that may be more subtle.

What a great and rich discussion--also a reminder of how difficult it is for us to fully explore with students all the issues that need to be, or at least could be fruitfully addressed in our teaching environment.   I wish more first year teachers would have discussions like this to incorporate these issues, not just as abstract principles but as everyday lawyering realities, and help prepare the students better for our clinic experiences.”

Nekima Levy Pounds: I thought this short blog post might be of interest: White Privilege: The Elephant in Minnesota’s Living Room, Star Tribune, May 20, 2014. It's been making the rounds on social media here.

Mary M. Zulack: “There was some pathbreaking work back in the 1980's by Peggy McIntosh, whom I believe may have coined the term White Privilege.  Here is a recent New Yorker article about her and her SEED program. Perhaps others have gone through the SEED program and can comment on it.  Here is the older article: White Privilege: Unpacking the Invisible Knapsack.  And here you can see the old typed manuscript: White Privilege and Male Privilege: A Personal Account of Coming to See Correspondences Through Work in Women’s Studies (Wellesley College, College for Research on Women, Working Paper No. 189, 1988).”

Steven Drizin: “For those who teach in juvenile justice clinics and who are working towards juvenile justice reform, there are a variety of essential studies and articles worth reading, starting with Perry Moriearty’s wonderful article below which cites many of the other essential sources.  The recent APA article here was mind-blowing to me because it documented what I have always suspected when I worked in the juvenile courts -- the notion that ‘childhood’ takes on a new meaning depending upon the race of the child and that black children are perceived to be ‘older’ and thus more responsible for their crimes than similar-situated white children.  Ask yourself: How many times have you heard prosecutors argue that ‘he may be young or have a low IQ but he has ‘street smarts.’ And then ask yourself, how many times you've heard this argument in a case involving white clients. . .’”

• Perry Moriearty, Framing Justice: Media, Bias, and Legal Decisionmaking, 69 Md. L. Rev. 849(2010)
• Franklin D. Gilliam, Jr. & Shanto Iyengar, Prime Suspects: The Influence of Local Television News on the Viewing Public, 44 Am. J. Pol. Sci. 560, 562 (2000)
• Franklin D. Gilliam, Jr. et al., Crime in Black and White: The Violent, Scary World of Local News, 1 Harv. Int'l J. Press-Pol. 15 (1996)
• Alafair S. Burke, Improving Prosecutorial Decision Making: Some Lessons of Cognitive Science, 47 Wm. & Mary L. Rev. 1587, 1590-91 (2006) (arguing that prosecutors exhibit cognitive bias)
• Theodore Eisenberg & Sheri Lynn Johnson, Implicit Racial Attitudes of Death Penalty Lawyers, 53 DePaul L. Rev. 1539, 1553 (2004) (finding that capital defense attorneys exhibit the same levels of implicit bias as the rest of the population)
• Chris Guthrie et al., Inside the Judicial Mind, 86 Cornell L. Rev. 777, 784 (2001) (reporting on a study of 167 federal magistrate judges, which revealed that they are susceptible to heuristics and biases when making decisions)
• Michael J. Leiber & Kristan C. Fox, Race and the Impact of Detention on Juvenile Justice Decision Making, 51 Crime & Delinq. 470, 489-90 (2005) (attributing observed negative race effects in outcomes to “racial stereotyping of African Americans as delinquent, prone to drug offenses, dangerous, and unsuitable for treatment”)
• George S. Bridges & Sara Steen, Racial Disparities in Official Assessments of Juvenile Offenders: Attributional Stereotypes as Mediating Mechanisms, 63 Am. Soc. Rev. 554, 567 (1998) (concluding that probation officers’ written rationales for sentencing recommendations indicated that they were more likely to attribute the criminal behavior of minority youth to internal forces, such as personal failure, inadequate moral character, and personality, and the criminal behavior of white youth to external forces, such as environment, even when the objective risk factors associated with the youth were similar)
• Sandra Graham & Brian S. Lowery, Priming Unconscious Racial Stereotypes About Adolescent Offenders, 28 L. & Hum. Behav. 483, 499 (2004) (documenting the impact of written racial cues on police and probation officers' judgments about the “culpability,” “likely recidivism,” and “deserved punishment” of hypothetical offenders)
• Frank D. Gilliam, Jr., New Stanford Criminal Justice Study Right, But Incomplete and Misleading, The Huffington Post, Aug. 20, 2014 (Frank Gilliam's work on implicit bias is important for those looking to change public policy)

Jane Spinak: “To Steven's list above, you can add Matthew I. Fraidin, Decision-Making in Dependency Court: Heuristics, Cognitive Biases, and Accountability, 60 Clev. St. L. Rev. 913 (2013).”

Shoba Wadhia: “I look forward to a continuing conversation. I am including here a PPT and resources in connection with a talk by Derald Wing Sue, professor of psychology and education at Columbia University delivered at Penn State last September titled ‘Microaggressions and Marginality: Manifestation, Dynamics, and Impact.’  

Beyond the classroom, I would be interested in hearing about how you address implicit bias in your faculty committee work and during faculty meetings.”   

Carol Izumi: “I’m attaching a copy of my article on 'Implicit Bias and the Illusion of Mediator Neutrality' (download 12) which identifies efforts I’ve incorporated in my Mediation Clinic.  I presented on this in a plenary at the clinical conference in LA a couple years back.”

Justin Steil: “I thought I might add one more—a blog post by Jerry Kang, with responses from Richard Ford, Robert Smith, and Cheryl Staats.  I hope it can be useful!”

Is it racist to talk about race?

Jamie Baker Roskie: “What I would love to see is a principled answer to the student who says, essentially, that it's racist to talk about race, or that by talking about race we are accusing him/her of racism.  I always struggled to find common ground with some students around those issues.”

Kimberly O’Leary: “If your students are in a mental place where they feel like it is racist to talk about race, you might try one of the alike/different exercises mentioned earlier on this thread. Where I teach now, it is very diverse and students do not feel that way about race discussions.  But when I taught at a different place that was virtually all white, students felt very threatened by race discussions.  I had a set of videos (produced by Mary Wolf many years ago for a clinic conference) where the client was young, white, male, very religious, poor and had some unusual personality traits; the student lawyer was African-American, a little older, kind of conservative politically, middle class; the supervisor was female, politically leftist, about the same age as the student, etc.  The students would watch the video of the client and I would have them list ways they were similar to and different from the client.  Then they would watch the video of the student lawyer and they would list how the client and student lawyer were the same and different from each other.  This then led to a discussion of how similarities/differences affect representation, empathy, etc.  Race was one factor, but not the only factor.  I think it also helped that the African-American person was the student, not the client.”  

Russell Pearce: “I believe your concern about students saying “it’s racist to talk about race” and Jennifer’s concern about millennials embracing formal equality are connected.  The dominant elite (and legal) culture assumes that we are autonomous individuals who should aspire to, and could actually, relate in a color-blind way.  Under these assumptions, race consciousness is wrong because it denies that all individuals are autonomous.  The contrary view is that our selves are constructed through our relationships.  In a society, where race is relevant and where white people are privileged, then competent lawyering and the values of equity and inclusion inevitably require consciousness of how race influences those relationships.  There is a terrific business school literature on this, including a Harvard Business School study comparing bank branches that used a color blind model with those that used a racial learning model.  The racial learning bank branches performed better than the color blind branches on every measure of success, from job satisfaction to profitability.  See White Lawyering: Rethinking Race, Lawyer Identity, and Rule of Law, 73 Fordham L. Rev. 2081, at 2093-95 (2005).

My sense is that unless we provide students with frameworks that undermine the assumption that we all exist, or have the capacity to exist, autonomously, then they will default to a color blind perspective hostile to conversations regarding race, especially white people like myself who benefit from normalizing whiteness and find it uncomfortable to consider how our racial identity influences how we perceive others and how others perceive us.”

Jamie Baker Roskie: “That's such an interesting perspective, and it rings true.  I had so much trouble establishing common ground with one student who was very resistant, because as I kept reaching for common ground she kept isolating herself.  I tried calling to what I considered a shared professionalism value - our ‘duty’ to provide legal assistance to those who cannot afford it - and she also rejected that. She said (something like - this is several years ago) – ‘I don't believe in that - I just want to be a tax attorney and to be left alone.’  Left alone.

That's why I ended up moving my Values class to the beginning of the semester - I found that if I gave the students the opportunity to surface and discuss their own value sets, and then discuss values vis-à-vis our work in the clinic, they felt heard, and we then had some common language to refer to when we got to the tougher stuff - like race.”

Sue Bryant: “One resource that might be helpful is the report published by the national conferences on the state courts based on the research of Kang and others that find that when explicit recognition of difference is ignored implicit bias is more likely to occur. Thus the report recommends that judges explicitly pay attention to difference as one of several strategies to manage bias.  A resource that comes with a Court credibility can be a helpful starting place (National Center for State Courts, Helping courts address implicit bias: Resources for education).

If by racist your students mean you are accusing them of intent to discriminate -- they are not racist.  But a failure to attend to implicit bias, creates situations that enable unintentional discrimination.  I think it is important to make those distinctions.  Also important to recognize that we have varying levels of bias about different groups.  Students with a lower bias score on the Implicit Bias tests can overcome biased thinking especially when they are prompted to pay attention.”

Stephen Ellman: “My New York Law School colleague Deborah Archer has been thinking about similar concerns, and I want to recommend her recent article on them, “There Is No Santa Claus: The Challenge Of Teaching The Next Generation Of Civil Rights Lawyers In A "Post-Racial" Society," 4 Columbia J.  Race & L. 55 (2013).”

Implicit Bias: Has anyone covered this with an entire incoming class or large segment of students . . . effectively (or at all)?

Larry Krieger: “This is so important and such an illuminating conversation, I did not see any reference to an attempt to cover in large group (entire 1L or other class?) meeting(s).  Any class-wide or school-wide efforts, or thoughts about planning such a thing?  It may be entirely unworkable, or maybe not.  I like to remember that “the perfect is the enemy of the good” – if a broader session might allow a small number of outliers to sit back and not expose their unwillingness to engage, that might well be preferable to not raising it with any, or the majority of students at the school.  Just thinking . . .”

Russell G. Pearce: That’s a great idea.  In the early 1990s, Penn required all first years to participate in a 3-4 hour program on race, gender, and identity in lawyering as part of the Ethics and Professional module.  Here’s the quick summary of the exercise Penn used:  White Lawyering: Rethinking Race, Lawyer Identity, and Rule of Law, 73 Fordham L. Rev. 2081, at 2085-86.  I have no idea whether Penn continues to do this.

Leonard Sandler: “We introduce the concepts at a diversity orientation session for 1Ls and are planning presentations for other classes throughout the year. University diversity personnel are going to facilitate a workshop for administrators and staff about cultural competence in customer service. We are also working on having our chief diversity officer host a workshop for faculty on implicit bias, teaching and issues in the classroom (to follow up the lecture presented this year by visiting faculty about implicit bias).”

Kelly Terry: “Mike Schwartz and I plan to include these topics as part of a new one-unit course we are developing for first-year students called ‘Professionalism and the Work of Lawyers.’  The course is an elective that we will offer for the first time this fall, so we don’t know yet what the enrollment will be.  If anyone wants to check back with us at the end of the fall semester, we’ll be happy to report on how things went.  Thanks so much for all of the suggestions offered in this discussion; we’ll take a look at the wonderful resources you all have identified.”   

Downloads: 1. Download Implicit Bias and Confronting Assumptions S2014 (2) 2. Download Laurie Barron's Cross Cultural Competence Resource List August 2012 3. Download Glossary 4. Download IAT-Homework Directions (2) 5. Download Interventions-EvidenceBased-11-22-13 6.  Download ImplicitBias-SessionOne-10-30-13 7. Download WISELI-AdviceMinimize 8.  Download Part 2 - Environmental Audit 9. Download Part Two-Draft 10.  Download Resource List-Implicit Bias-2013 11. Download May 6 Race Equity Presentation for Iowa CityLS 12. Download IMPLICIT BIAS AND THE ILLUSION OF MEDIATOR NEUTRALITY

Federal Education Loan Relief and Forgiveness: An Important Resource for Law School Graduates is at Risk

By: Kim Bart, Assistant Dean for Public Interest & Pro Bono at Duke Law School, and Isaac Bowers, Associate Director for Law School Engagement & Advocacy at Equal Justice Works

Class of 2013 law school graduates who took out loans to fund their legal educations accumulated an average debt of $109,756 according to U.S. News & World Report data. In taking on that level of educational debt, many law school students were aware of, and perhaps counting on, long-established federal loan repayment and forgiveness programs. Some of the programs, however, may soon be constricted.

President Obama’s proposed budget, released in March 2014, includes a proposal to cap the level of federal loan forgiveness at the aggregate loan limit for independent undergraduate students, which is currently set at $57,500. This may leave graduate and professional students, including law students, out in the cold. Congress is likely to take the issue up next year as part of its ongoing reauthorization of the Higher Education Act.

Federal Loan Repayment and Forgiveness Programs
Federal loan repayment and forgiveness programs currently can help high debt borrowers in two main ways: (1) income-driven repayment plans set monthly student loan payments at an affordable percentage of borrowers’ incomes and allow cancellation of any remaining debt after 20 or 25 years; (2) Public Service Loan Forgiveness allows borrowers who commit to working in the public interest sector to earn forgiveness after 10 years of loan repayment. Only federal student loans are eligible for these federal programs.

The two most common income-driven repayment plan options are Income-Based Repayment (IBR) and Pay As You Earn (PAYE). IBR has been available to borrowers since 2009. It caps most borrowers’ monthly loan payments at 15% of discretionary income, with discharge of the loan balance after 25 years. Borrowers with no federal student loan balance who receive loans on or after July 1, 2014 have a monthly payment cap of 10% of discretionary income and discharge after 20 years.

PAYE, which has been available since 2012, also caps a borrower’s monthly loan payment at 10% of discretionary income and allows discharge of the loan balance after 20 years. To qualify for PAYE, borrowers must have received a loan on or after Oct. 1, 2007 and have had no outstanding federal student loans at the time they received it, and must receive a disbursement of a federal loan on or after Oct. 1, 2011.

Public Service Loan Forgiveness
Under the Public Service Loan Forgiveness (PSLF) program, the length of repayment is reduced from 20 or 25 years to just 10, in return for the borrower working in qualifying public interest employment. Qualifying employment includes work with federal, state, local or tribal government, or work with a 501(c)(3) nonprofit organization.

The prospect of loan forgiveness after 10 years of loan repayment has allowed many high debt recent law school graduates to consider public interest or public service employment, even though starting salaries for the public sector are significantly below those of the private sector. Median entry-level salary for public interest employment hover around $48,000, according to the 2014 NALP Public Sector and Public Interest Attorney Salary Report. This compares unfavorably with a median first-year salary of $125,000 for private firms. PSLF allows high debt law school graduates to realistically consider devoting themselves to long-term public service legal careers. A cap on Federal Loan Forgiveness would have a deleterious effect on the ability of law school grads to successfully manage law school debt, and remove an incentive for lawyers to choose lower-paying, but much-needed, public service work over private law firm employment.

Learn More
To learn more, join the Equal Justice Works free live webinar: “JDs in Debt: What Law Students & Lawyers Need to Know about Managing Student Loans & Earning Public Service Loan Forgiveness,” which will be offered on October 8th, November 25th and December 18th, 2014. To register, visit http://equaljusticeworks.org/ed-debt/webinars.