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ABA Considers Rule Change That Would Open Door to More Adjunct-Taught Classes in Law Schools

by Karen Sloan | Law.com

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.

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. “This is another way in which the standards are moving toward looking at outcomes rather than inputs,” said Barry Currier, who oversees the ABA’s section of legal education. “What if a school graduates 100 percent of its students and 100 percent of them pass the bar? Should the accreditation standards say, ‘Sorry, still no good because you don’t have a majority of your upper years taught by full-time faculty?’”

But at least one organization of law professors has already said it will oppose reducing the amount of course offerings that must be taught by full-time faculty in order 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.”

The proposal is largely under the radar right now, Roy said, but she expects a groundswell of opposition from professors once the proposal attracts more attention—not unlike the wave of protest in 2014 when the ABA considered removing the requirement that law schools maintain a faculty tenure system. (It ultimately dropped that idea.)

A spokesman for the Association of American Law Schools said the organization is looking into the proposal but is not yet ready to comment on it.

Some professors see potential in the idea of rolling back full-time faculty requirements, however. Law schools wouldn’t have to change their teaching models should the ABA do away with the upper-level full-time teaching requirement, wrote University of Alabama School of Law professor Paul Horwitz in a post on PrawfsBlawg, but they would have new flexibility to do so. “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,” Horwitz wrote.

The proposal cleared an early hurdle on March 10 when the ABA’s Council of the Section of Legal Education and Admissions to the Bar voted to put it out for public notice and comment. Several council members raised concerns at that meeting, but a majority agreed that the proposal had enough merit to warrant public input.

The ABA’s current law school standards mandate that “substantially all” of a law student’s first-year coursework be taught by full-time faculty. Additionally, more than half of all the credit hours offered by a law school must be taught by full-time faculty, or two-thirds of all courses taken by the student body must be taught by full-time faculty. Those rules mean that all first-year courses are taught by full-time faculty, as are at least half of the upper-level curriculum.

The ABA’s Standards Review Committee, which suggests rule changes to the council, concluded that the full-time teaching requirement for the first year is necessary to “create a sense of academic community,” and provide a “foundation for future learning.” But the committee found the upper-level requirement to be unnecessary and the source of “substantial costs” to schools, given that full-time professor salaries are much higher than adjunct wages. (Adjuncts are typically practitioners who teach for the prestige or desire to train the next generation of lawyers, not for the money.)

The proposal would technically allow schools to have only adjuncts teach upper-level courses, Currier said, but those schools would still have to prove their compliance with a number of other related ABA standards, including that they maintain an effective teaching program and that full-time faculty govern the curriculum. “It really will give schools one less thing they have to count and balance, and give them additional flexibility to use people who they think will be effective teachers of particular courses,” he said.

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?”

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