Notice and Comment on the ABA's Proposal to Permit Paid Externships

Today, January 22, 2016, is the deadline to submit Comment to the ABA regarding its proposals regarding externships, including to permit paid field placements. The details of the proposals and instructions for submitting comments are here.

The AALS Section on Clinical Legal Education and the Clinical Legal Education Association (CLEA) have submitted comments. 

The CLEA statement is here:   CLEA Comments on Proposed Standard 304(c) and Retention of Interpretation...

Here is the full text of the comment from the AALS Section:

AALS Section on Clinical Legal Education

Statement of Position on the Proposed Revisions to ABA Standards 304 and 305 Relating to Field Placements and the Elimination of ABA Interpretation305-2 Prohibiting Paid Externships*

The Association of American Law Schools Section on Clinical Legal Education (“the Clinical Section”) expresses the following position on proposed revisions to ABA Standards 304 and 305 relating to field placements. The Clinical Section is composed of 690 legal educators who have dedicated their professional lives to preparing students for the practice of law through in-house clinics, externships, and other experiential educational offerings. Based on this collective experience, the Clinical Section believes that the relocation of provisions specifically addressing field placements from Standard 305 to Standard 304 and the proposed additional requirements are steps forward. However, the proposal to eliminate Interpretation 305-2, which would repeal the prohibition on compensation to students enrolled in field placement (externship) programs, will have an adverse impact on the quality of externship courses. No set of regulations will effectively counteract the compromised and subordinated educational mission that would result from the introduction of payment into the field placement setting.

The proposal to move the regulations concerning field placements to Standard 304 and much of the language reflected in the proposed revisions from Standard 305 to Standard 304 acknowledges field placements as academic courses that, like law clinics, provide students with substantial lawyering experiences. The addition of Interpretation 304-1 further acknowledges that a field placement, like certain simulation courses and law clinics, may qualify as an experiential course under Standard 303 if the requirements set forth in Standard 304 and Standard 303(a)(3) are met.

That proposed Standard 304(c) aligns the requirements for field placement courses with those of law clinics and simulations appropriately recognizes the educational nature of field placement courses. Like clinics and simulations, the proposal focuses on the similar need for careful supervision, the opportunity for performance, feedback, and self-evaluation, and faculty-led instruction. At the same time, the retention of many of the requirements previously part of Standard 305 and the inclusion of certain new requirements recognize the unique nature of field placements in providing substantial lawyering experiences through partnerships between law school faculty and site supervisors outside the law school. As relocated to and revised in Standard 304, these requirements will help ensure that the educational focus of field placement courses remains paramount by emphasizing the continued development of externship pedagogy and providing improved guidelines for defining programmatic expectations.

In contrast, the proposal to eliminate the prohibition on paid externships through the deletion of Interpretation 305-2 will adversely affect the quality of externships. There is a consensus within the clinical teaching community against removing the prohibition: during the last notice and comment period in July 2015, after renewed advocacy on both sides of the issue, 100% of the comments submitted by law school clinical educators to the ABA opposed removing the prohibition. We are, of course, deeply concerned about the cost of law school, ever-increasing student debt, and students’ need for income. We note that the Council has recently provided further guidance on ‘reimbursements’, in an August 2015 Guidance Memo on reimbursement for field-placement expenses. This represents a step in the right direction, permitting limited reimbursement for transportation, housing, and food. We support further movement in this direction, such as permitting reimbursement of the cost of student tuition or the award of fellowships from third party sources. Nonetheless, the Section is extremely concerned that allowing credit for paid employment will undermine the student educational experience that is at the heart of the proposed safeguards otherwise set forth in revised Standard 304. Removing the restriction on compensation is not the way to address these student concerns.

The long-standing prohibition on paid externships ensures that the educational goal of the field placement is primary. In lieu of providing payment, site supervisors teach and mentor students while providing them with quality educational experiences through opportunities for performance and feedback in furtherance of the student’s individual learning objectives. Within this distinctive academic framework, site supervisors have an incentive to provide students a quality educational experience and both students and faculty are empowered to ensure that students receive one.

Allowing compensated student jobs to count for academic credit is without precedent, yet that is precisely what removing the prohibition would do. In a paid employment relationship, the student’s educational experience would necessarily become secondary. Because the employer is paying for the performance of specific work, there is an expectation that the student will provide value to the employer. As a result, the employer will be more likely to assign tasks that benefit the employer as opposed to tasks with the primary focus of advancing the student’s learning objectives. And because students are getting a financial benefit that may also be tied to the possibility of future employment, students will be less likely to insist that they receive meaningful opportunities for performance and feedback or to provide a candid assessment of their field placement experiences. Allowing field placements to pay students for work performed also will negatively impact the dynamic between faculty and site supervisors. Once a site supervisor pays a student to perform work, it becomes much more difficult for the faculty member to insist that the student receive a certain level of supervision or specific experiences to further the student’s learning objectives.

As revised, Standard 304(c) will not protect against the subordination of the student’s educational interests or the academic mission of a field placement course. The proposed language of Standard 304(c) cannot and does not require paying employers to offer students educationally valuable experiences that are economically disadvantageous to their business. Moreover, the requirements of a written understanding and “sufficient control of the student experience to ensure that the requirements of the Standard are met” cannot and will not overcome the power imbalance that will be a natural consequence of an employment relationship. No written understanding will trump the employer-employee relationship established once a field placement pays a student for work performed. Likewise, the “sufficient control” language does not provide guidance as to how much control is “sufficient” for any externship and, particularly, paid externships. Rather, the addition of this language underscores the control problems paid externships will create without providing any concrete methods to ensure that control of the student’s field placement experience will remain with faculty.

In addition to the consequences outlined above, paid externships will likely have the unintended impact of reducing the number of students exposed to and doing social justice work through their field placements. Law schools typically include non-profit, judicial, and government placements as part of their externship offerings. Some field placement programs also include for-profit placements. With the addition of paid externships, it is anticipated that the number of for-profit placements would rise. Although schools would not be required to offer paid externships, in the competitive law school market, it would be nearly impossible to avoid. If one school allows paid externships, there will be an increased pressure on other schools to allow them. Because for-profit placements are generally more able to pay their externs and possibly offer future employment, students may be less inclined to do an externship at a non-profit or governmental entity. Although some non-profits and governmental entities have the ability to offer a stipend or nominal pay, the majority likely will not be able to offer a stipend, pay, or possibility of future employment competitive with for-profit placements. This will make for-profit opportunities more attractive to students, a result that concerns the Clinical Section given the commitment to social justice of both the ABA and the clinical community.

Regardless of regulation, permitting compensation in field placements will severely harm, if not entirely displace, the student-first learning experience that is the aim of legal education. For that reason and others articulated above, the proposed revisions to Standards 304 and 305 relating to field placement courses should be adopted, and should continue to include current Interpretation 305-2 and its prohibition against paid externships.

* Disclaimer in accordance with AALS Executive Committee Regulation 1.4: The opinions expressed here are those of the Clinical Section and do not necessarily represent the position of the Association of American Law Schools.