Monday, August 24, 2015
Recent action by the A.B.A. Council on Legal Education and Admission to the Bar defers a critical question for clinical education and sets the stage for sharp conflict over externships. No, I do not refer to the pending question about “paid externships.” The question is more fundamental: what should an externship be?
In fairness, the dispute over paid externships did generate this question. For several years, the Council has come under increasing pressure to repeal the ban on credit for compensated work, as currently embodied in Interpretation 305-2. After voting against repeal in the summer of 2014, the Council was required by the House of Delegates to revisit the question. This past winter and spring, the Council’s rule-drafting sub-committee, the Standards Review Committee, issued a new proposed rule for the Council to consider:
"Proposed Interpretation 305-2
"A law school that grants credit for a field placement for which a student receives compensation must demonstrate sufficient control of the student experience to ensure that the requirements of the Standard are met. The law school must maintain records to document the steps taken to ensure compliance with the Standard."
This proposal requires law schools to demonstrate “sufficient control of the student experience” so that “the requirements of the Standard are met.” The proposal assumes that Standard 305 actually has requirements for what the student experience in an externship should be.
Yet Standard 305 says little about the student experience. Its requirements include the following:
- A student should receive credit commensurate with the time and effort the student invests and with the “quality of the educational experience.”
- A faculty member should evaluate each student’s educational experience, using a stated method of evaluation.
- The school should state goals and methods for the student experience and must articulate how the course requirements achieve those goals using those methods.
- The school should invest instructional resources that are adequate to satisfying the course’s goals.
- The school should maintain regular contact with site supervisors to maintain the “quality of the educational experience.”
- A student should have “opportunities” to reflect on their experience.
These provisions require that the student have experiences of undefined quality in a course that has non-specific goals and methods. This is educational procedure without teaching substance, small surprise to those who have had to fit their externship courses into the airless limits of 305 during the site inspection process.
The A.B.A. can do better. In fact, it has done better. Standard 303 defines what a course must offer to qualify as an experiential course; Standard 304 does the same for a course to qualify as a “clinic” or a “simulation.” These Standards require courses to address specific content, such as “doctrine, theory, skills, and legal ethics”; to use specific teaching techniques, including repeat performance, formative feedback, and student self-evaluation; and to make specific demands on teachers, including faculty who supervise, give feedback, and teach a classroom course.
Whatever the merits of these requirements, none of them must apply to externships. Yes: if a law school wants an externship course to qualify as “experiential,” the externship must satisfy Standard 303. Yet Standard 303 does not require what Standard 304 requires for clinics and simulations, including specific kinds of experiences, supervision of and feedback about repeat performance, and a classroom course. In fact, it remains possible for a school to give students credit for externships that do not qualify as “experiential courses” at all, precisely because Standard 305 requires so little.
In effect, the Standards continue to allow schools to create procedurally-generated externships that fit the slim contours of Standard 305, with little to no meat on their bones. Such a course needs to address no specific content, to use no specified teaching techniques, and to ask little of faculty and site supervisors, beyond participation, availability, and an evaluation at the end.
In early August, the Council rejected the proposed interpretation and has asked for new proposals, specifically a review of Standard 305. There is a solid chance that the Council will now address the more fundamental question: what should an externship be? Should Standard 305 now include more substance and less process? Should externships receive a definition comparable to Standard 304’s definitions of clinics and simulations?
The next installment of this blog post discusses these questions. In the process, I will ask: should we require of externships the same things that we require of in-house clinics? Or can we now regulate externships in accord with their inherent virtues as learning and teaching?