Tuesday, March 28, 2017

Opposition to Proposed Elimination of Rule Requiring Full-Time Faculty to Teach at Least Half of Every Law School’s Upper-Level Courses

"The American Bar Association is considering deep-sixing a rule requiring full-time faculty to teach at least half of every law school’s upper-level courses—a proposal likely to ruffle the feathers of professors who fear it would allow schools to essentially outsource the second and third year to adjuncts."  (Law.Com)  "Eliminating the requirement would provide law schools more room to experiment with how they deliver classroom instruction and would also allow them to cut costs, according to the ABA committee that proposed the change."  Professor Paul Horwitz supports the proposal: "If some law schools adopt a more practice-driven approach and rely more on practitioners to achieve it, while others are or can afford to emulate the model of a few elite schools, so much the better for institutional diversity and student choice."

However, the Society of American Law Teachers (SALT) strongly opposes the proposal "to preserve the quality of students’ educational experiences."  "Students need to have access to faculty members outside of classroom time to be able to go over things that confuse them, to be counseled on how their education fits with their career aspiration and things like that," said Denise Roy, the director of externships at Mitchell Hamline School of Law and co-president of the Society of American Law Teachers, the largest group of law faculty in the country. "Adjunct faculty typically are not available on campus outside their teaching hours." "Having full-time professors teach only first-year courses would create a problem when it comes to the full-time faculty’s mandated role in shaping all three years of legal education, Roy cautioned."  "The faculty has responsibility for the overall educational program, according to the standards," she said. "I’m talking about responsibility for designing and setting policy, and determining what’s going to be offered and when. It’s hard to imagine how that would be done if the full-time faculty only taught in the first year. How would they have the experience and context to be able to make the decisions needed for the coursework beyond the first year?"

I agree with SALT but for a more fundamental reason.  Law students need to be taught by professors who are experts at teaching.  Good teaching requires not only subject-matter expertise, but also the ability to convey the material to students and to help students become self-regulated learners.  Part-time teachers generally can't do this.  I agree that most law schools need to adopt a more practice-driven approach, but this should be done by hiring full-time professors who have practice experience, as clinicians and legal writing professors currently do.

We should not be doing innovation for innovation's sake.  We should only adopt innovations that better legal education.

Disruption is a craze right now, but we need the right kind of disruption.  Johann N. Neem of Inside Higher Ed has recently cautioned that "Let’s Not Rush Into Disruptive Innovation."  He writes, "Everywhere one turns, the idea of disruptive innovation continues to spread, even as academics have cast doubt on the theory’s validity. Put on the agenda by scholars such as Clayton M. Christensen and Henry J. Eyring, the idea presumes that old institutions, including colleges and universities, will be hard-pressed to change fast enough to meet new external environments. Instead, new technologies and organizations will outcompete the old, even if -- and, in fact, because -- the new ones offer a subpar but cheaper product."

"But such claims have often been married to the presumption that new technologies have sped up the rate of social change, making existing institutions even more vulnerable. And it is this piece -- the narrative of speed -- that has led so many advocates of disruption to believe that we must act now or be left behind."

He continues, "Policy makers and university administrators who advocate disruptive innovation are right that all institutions -- and colleges and universities are no exception -- must account for changing external environments. And no institution is ever static. But their proclamations to adapt or die ignore the fact that human environments are the products of human agency. Society is a human construct, not a natural process. Institutions can shape as well as reflect the society and culture around them. True courage is trying, even in the face of hostility and skepticism, to defend what colleges and universities do. But giving in is easier."

"In fact, despite all the talk of innovation, what is perhaps most surprising is how familiar and uninteresting recent models of disruptive innovation really are. Yes, they use computers. But the structures of institutions like Western Governors University, Southern New Hampshire University’s College for America and the ever-expanding Arizona State University online programs are really premised on ideas that date back to the industrial revolution. Managers control the organization. Labor is subdivided into discrete tasks (what WGU calls the disaggregated faculty model) and alienated from the products of their work. In turn, those products -- including curriculum and assessment-- are standardized and work routinized. This is quite old-fashioned.

In contrast, forward-looking companies try to emulate traditional colleges and universities by building large, idyllic campuses where people can interact and be creative. 'There is something magical about sharing meals,' said former Google CFO Patrick Pichette a few years ago on why Google discourages telecommuting. 'There is something magical about spending the time together, about noodling on ideas, about asking at the computer, ‘What do you think of this?' That sounds a lot like the traditional college experience, but, in new-model universities, fundamental aspects of traditional ones -- such as personalized teaching, green lawns, academic freedom, shared governance, meaningful exposure to liberal arts education, and time and autonomy for reflection -- are deemed irrelevant."

"What makes such reforms so hard to resist is the presumption that the world is moving too fast to take stock. All hands must be on deck. The ship is sinking. Legislators are impatient. Faculty members are complacent. But is this true? Is the world changing so fast that all the things colleges and universities are supposed to do and have done have been rendered irrelevant? Are the forces of disruption really that powerful?"

"Some parts of our world may be changing fast, but it’s not clear that one can speed up the rate of change in higher education without significant damage. . . .  When we believe we have no time to slow down because the world is changing too fast, we prevent ourselves from asking what kinds of institutions we need."

"What these visionaries ignore is that institutions and ideas do not become outdated just like Apple computers. Moreover, disruptive innovation is a language of change but not always a description of the reality of it. As Harvard University historian Jill Lepore has written, disruptive innovation is 'not a law of nature. It’s an artifact of history, an idea, forged in time; it’s the manufacture of a moment of upsetting and edgy uncertainty. Transfixed by change, it’s blind to continuity.'"

"But we need continuity, too. . . .  It is this ability of institutions to create spaces insulated from fast change that enables them to maintain forms of knowing that might otherwise disappear, to invest in scholarship that takes decades to pay off, and to educate students with ideas and perspectives that are not always prevalent in public discourse."

"In such a context, true courage requires saying that enough is enough. It requires defending the college or university as an academic institution. It requires making clear that some things are worth saving and even savoring -- that continuity has benefits."

"If we had courage, we would celebrate the fact that academic life moves slowly. Research takes time. Teaching does, too. To educate a human being requires her or him to step outside of the busyness of daily life. Developing new skills and knowledge takes years. It is even harder to inculcate in students such intellectual virtues as curiosity."

"Education is a slow but necessary effort to transform people."

"If we had courage, we would acknowledge that education cannot be done by machines or be done too fast. We would argue, as do Daniel F. Chambliss and Christopher G. Takacs in How College Works, that true learning depends on the cultivation of personal relationships. We would conclude, based on the evidence Richard Arum and Josipa Roksa assemble in Academically Adrift, that the best way to improve student success is to put students on campuses that set high expectations and emphasize the liberal arts and sciences. Maybe we would invoke the work of cognitive scientist Daniel T. Willingham or biologist James E. Zull, who have explored why real learning is tough and takes trust and time. Perhaps we would even stand up for the humanistic and civic goals of liberal education."

Conclusion: "But those of us who -- as citizens, legislators, administrators, faculty members and students -- want to pass down the opportunities we have had to future students and professors, and who aspire to increase access to it for first-generation students, must have the courage of our convictions. We must remember what colleges and universities are for and ensure that those purposes are sustained, even as our institutions continue to evolve. In short, we must respond deliberatively, not out of fear that the world is moving too fast for thought."

Eliminating the requirement that full-time faculty teach at least half of every law school's upper-level courses would be a disruptive innovation.  But, it would not be a beneficial one.  What law schools need to do is to do better what they already do--teach students how to become lawyers and further knowledge concerning the law.  The ABA proposal would have the opposite effect by putting inexperienced teachers into the classroom.

(Scott Fruehwald)


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