1 1 AALS EXECUTIVE COMMITTEE AND ABA ACCREDITATION 2 POLICY TASK FORCE OPEN FORUM 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 The American Bar Association Accreditation 18 Committee Meeting, taken at the Marriott Wardman 19 Park Hotel, 2660 Woodley Road, Northwest, North 20 Cotillion Room, Washington, D.C. 2008, commencing at 21 1:45 p.m., January 5, 2007, before Gercha Richards 22 White, Court Reporter. 23 24 25 2 1 A P P E A R A N C E S 2 Section of Legal Education and Admissions to the Bar 3 Accreditation Task Force 2006-2007 4 5 Pauline Schneider, Esq., Chairperson 6 Orrick, Herrington & Sutcliffe, LLP 7 3050 K Street, Northwest 8 Washington, D.C. 20007 9 (202) 339-8483 10 11 Jose R. Garcia-Pedrosa, Esq. 12 Chief Operating Officer 13 National Parkinson Foundation 14 1501 Northwest Ninth Avenue 15 Miami, Florida 33136 16 (305) 243-5813 17 18 Professor Randy A. Hertz 19 New York University Law School 20 245 Sullivan Street, Fifth Floor 21 New York, New York 10012 22 (212) 998-6434 23 24 Dean John C. Jeffries, Jr. 25 University of Virginia School of Law 3 1 580 Massie Road 2 Charlottesville, Virginia 22903 3 (434-924-4750 4 5 John L. Lehey, President 6 Quinnipiac University 7 275 Mount Carmel Avenue AB-PRES 8 Hamden, Connecticut 00518 9 (203) 582-8700 10 11 Dean Richard J. Morgan 12 University of Nevada, Las Vegas 13 William S. Boyd School of Law 14 4505 Maryland Parkway, Box 451003 15 Las Vegas, Nevada 89154 16 (702) 895-1876 17 18 A P P E A R A N C E S (continued) 19 Section of Legal Education and Admissions to the Bar 20 Accreditation Task Force 2006-2007 21 22 Dean Karen H. Rothenberg 23 University of Maryland School of Law 24 500 West Baltimore Street 25 Baltimore, Maryland 21201 4 1 (410) 706-2041 2 3 Dean Steven R. Smith 4 California Western School of Law 5 225 Cedar Street 6 San Diego, California 92101 7 (619) 525-1408 8 9 Dean Kent D. Syverud 10 Washington University School of Law 11 One Brookings Drive 12 St. Louis, Missouri 63130 13 (314) 935-6400 14 15 Hulett H. Askew, Esq. 16 Consultant on Legal Education 17 American Bar Association 18 321 North Clark Street 19 Chicago, Illinois, 60610 20 (312) 988-6721 21 22 23 24 25 5 1 I N D E X 2 3 PAGE 4 Opening Remarks, Ms. Schneider, Chairperson 4 5 Opening Statements 15 6 Meeting Concluded 83 7 Reporter's Certificate 84 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 6 1 P R O C E E D I N G S 2 - - - 3 MS. SCHNEIDER: Good afternoon, everyone. 4 I'm Pauline Schneider and I am Chair of the Task 5 Force that's looking at the accreditation policy of 6 the ABA. I'd like to begin by giving a couple of 7 housekeeping issues and then going into how we're 8 going to proceed today. We have had a couple of 9 people sign up in advance to speak. If you wish to 10 speak today, we would ask you to sign up on the 11 sheet in the back of the room and we will honor you 12 in the order in which you signed up. 13 Number two, there are additional copies of 14 the memorandum that was sent out with respect to the 15 Task Force, its work, and the questions that we 16 would like to discuss with you today. If you wanted 17 a copy, you can find some additional copies in the 18 back of the room. 19 Three, there is a CLE sign-up sheet in the 20 back of the room as well, so if you can get CLE 21 credit for this, please sign up. 22 (Laughter) 23 MS. SCHNEIDER: I'm delighted to be here 24 today, even though my arm is still aching from being 25 requested to do this, but my friend, Bill Rakes, is 7 1 pretty persuasive and Bill Rakes had an idea that we 2 are trying to carry out. He thought it was time for 3 us to take a fresh look at the procedures that have 4 evolved over a period of time that regulate the 5 accreditation of law schools in the United States. 6 He has appointed this Task Force that you see here 7 today to help look at this issue. 8 There are a couple of members who aren't 9 here. We will introduce them anyway, and I think at 10 least one or two of them will be joining us, but 11 they may join us after we have gotten started. 12 To my far right is Steven Smith. Next to 13 Steve is Randy Hertz. Steve is in San Diego; Randy 14 Hertz is at NYU. We have Kent Syverud from 15 Washington University in St. Louis. We have Dean 16 Dick Morgan from Nevada, Las Vegas. And I think 17 everybody by now knows the legal education Bucky 18 Askew. He may not have been mentioned before, but 19 you all know him now. 20 MR. SMITH: He's the person who's giving 21 you the CLE credit. 22 (Laughter) 23 MS. SCHNEIDER: Hopefully, you've all had a 24 chance to sort of take a look at the memo that was 25 sent out in advance of this hearing to share with 8 1 you sort of our thinking about how we might approach 2 our task and to share with you some of the questions 3 that we were thinking about as we were trying to do 4 our work. 5 I will let you know in advance that this 6 Committee or Task Force has not formed any positions 7 or made any decisions on any policies or procedures 8 that may need to be changed or wherever they might 9 need to be improved or may need to be done away 10 with. We are in a listening phase. We will have 11 this hearing. We will also have a hearing at the 12 mid-year meeting of the ABA in Miami, and we hope in 13 the meantime we will also get written comments from 14 any number of you, your views on the questions that 15 we propose as well as anything else that's on your 16 mind about law school accreditation. 17 As many of you know, I am not an academic. 18 I am in a private practice of law. I suspect my 19 view of the world may be significantly different 20 from many of yours, but hopefully as to the richness 21 of the discussion that we're going to have that we 22 can listen to the points of view of many people who 23 are interested in legal education in this country 24 and who have a deep desire and concern that it 25 should be the best legal education that's possible 9 1 and that it's up to us to make sure that it is 2 delivered in a way that makes the most sense. 3 One other housekeeping matter I forgot to 4 mention at the beginning, this session is being 5 recorded by the court reporter. So when you stand 6 up to speak, we would ask you to go to the 7 microphone, to identify yourself, and you might want 8 to just spell your name, because sometimes those 9 names get garbled, and tell us your affiliation or 10 law school or however you prefer to be identified. 11 I just want to sort of talk a little bit 12 about the questions that we have raised and we would 13 ask you to sort of focus in your comments on some of 14 these questions. First, to the extent that we have 15 more time, we can entertain other notions that 16 haven't crossed our minds yet, but we'd like to hear 17 about some of the issues we've raised. 18 We also encourage you very, very strongly 19 to submit written statements. That will make our 20 work a lot easier and, I think, a lot more 21 productive. I don't know about you, but sometimes 22 I'm much more thoughtful when I have to put it down 23 in writing. 24 With that, let me just start off with 25 discussing some of the questions that we on the Task 10 1 Force have sort of framed as issues that we need to 2 think about as we are thinking about this process, 3 this process of accreditation of a legal education. 4 As you know, many schools, probably each of 5 your schools, defines the word admission and the 6 admission often is beyond sort of the base 7 admissions that we set forth in the standards which 8 have to do with admission to the Bar and effective 9 and responsible participation in the legal 10 profession. The question is: Should our standards 11 explicitly recognize these other missions, these 12 other goals that schools set for themselves, and if 13 we should recognize them, how should we mess with 14 them, how should we hold, or should we hold, schools 15 accountable for making -- three of my colleagues 16 have just joined us here, Jose Garcia-Pedrosa -- 17 MR. JEFFRIES: We were in the other -- we 18 were in the original room. 19 (Laughter) 20 MS. ROTHENBERG: We thought nobody wanted 21 to come. 22 MS. SCHNEIDER: Karen Rothenberg from 23 Maryland and John Jeffries from the University of 24 Virginia. 25 Secondly, we note that a lot of the 11 1 commentators, including our accrediting body the 2 Department of Education, has focused on outputs as 3 measures of successful accreditation. We raise the 4 question: To what extent should we focus on our 5 outputs? And if we're focused on outputs, what 6 should those outputs be that we should measure and 7 how should we measure them? How much weight should 8 we give to them? Are they more important than 9 inputs? Should they be measured equally? 10 Third, we all talk about transparency and 11 we like to think that our process ought to be 12 transparent in very significant ways. We wonder, 13 however, what are the best ways to structure a 14 process and to administer a process that is 15 appropriately transparent? We know, I think, 16 intuitively and from all kinds of legal, legislative 17 experience that some things can't be absolutely 18 transparent. We know out of respect that certain 19 information must be confidential, personnel issues, 20 that sort of thing. So to what extent should 21 portions of the process be maintained confidentially 22 and to what extent should there be transparency, and 23 then how should we frame it so that it is 24 transparent? 25 Next question: To what extent should the 12 1 accreditation process go toward ensuring compliance 2 beyond minimum requirements, particularly for those 3 schools who identify greater aspirations. How 4 should we weigh compliance with minimum standards 5 versus compliance with higher aspirations or should 6 we weigh them? 7 Fifth question: Cost of legal education. 8 We all know that there are times when we impose 9 standards on schools that are costly. To what 10 extent should we be concerned exclusively about cost 11 or to what extent should quality be used as a 12 balance to cost? How should we take cost into 13 account when we think about our standards? 14 Six: When we're assessing law schools, 15 should we take into account in our process the kinds 16 of practices our graduates are going to engage in? 17 If we are a school -- I will pick on South Dakota, 18 why not, it's where most of its graduates might 19 remain in South Dakota and might go to very small 20 firms -- should their curriculum, should there 21 program of what's legal education look different 22 from NYU's, where most of the students might be 23 practicing in large urban areas and perhaps in 24 larger law firms. To what extent should the 25 accreditation process be concerned about this? 13 1 Seven: And this is one that we hear a lot 2 about, but I'm not sure whether we hear -- I'm not 3 sure we hear that debate or dialogue in the way 4 that's been very helpful, and that is, to what 5 extent should law schools that are considered as 6 perhaps elite law schools or first-year law schools 7 or however, what these days, to what extent should 8 some law schools be given a pass in terms of the 9 accreditation process? To what extent should our 10 standards be flexible so that you pay more attention 11 to schools that seem to have more difficulty or 12 greater problems, and to what extent should we 13 decide that schools that seem to be doing fine be 14 given a pass? What are some issues here on 15 fundamental fairness with how you treat one law 16 school and how you treat another law school? 17 Eight: If you assume that an excellent 18 accreditation process should engender some high 19 level of satisfaction from the institution that's 20 being accredited, what steps should the ABA be 21 taking to measure or to get feedback from the 22 schools to determine the level of satisfaction with 23 the process? 24 Right now, most of our feedback is clearly 25 anecdotal and most of it is connected with an 14 1 accreditation visit that's just occurred and most of 2 it is probably unhappy comment. Although I have 3 often had people, particularly deans, say in their 4 more reflective minds, it was a variable process but 5 I learned a lot from the process and our institution 6 really learned the process, even though it was a 7 difficult process. But to what extent should we be 8 getting some formal, regular feedback from schools 9 and particularly schools that are not engaged in the 10 review process at the time. 11 And, finally, the ninth question which will 12 be the question that I guess we'll hear from more 13 towards the end is: What other issues should we be 14 looking at in this process? 15 We've had two folks sign up. We'll take 16 those folks in the order in which they've signed up 17 in advance. Then I'll get the list from the back of 18 the room from those who would like to speak. We're 19 going to begin our discussion with time limits, but 20 to the extent that there is not a large number of 21 individuals who sign up, we might be more flexible 22 with our time limits. And I would like to begin 23 with David Van Zandt. 24 MR. VAN ZANDT: Thank you very much. My 25 name is David Van Zandt, and I'm the Dean of 15 1 Northwestern University Law School. With me today 2 from the American Law Deans Association are Rick 3 Matasar. I'm the incoming president of the 4 association. Rick is the incoming vice president. 5 Kate Bartlett -- Rick's from New York Law School. 6 Kate Bartlett's from Duke. She's on the Board. And 7 last, Patricia White is from Arizona State and she 8 is the incoming secretary of American Law Deans 9 Association. 10 One question I had, I had submitted a 11 statement late last night because our Board never 12 approved it, and I'm sorry I didn't get it to you in 13 time. I could read that statement to you; it's 14 about four pages. You did mention a time limit. I 15 don't want to, you know, take away from other 16 people's time. 17 MS. SCHNEIDER: I'm sure you could read 18 quickly; right? 19 MR. VAN ZANDT: I could read quickly. 20 MS. SCHNEIDER: I think we have a little 21 flexibility here. 22 MR. VAN ZANDT: Let me start out by saying 23 the following is a statement of the Board of 24 Directors of the American Law Deans Association. 25 The Board of Directors, in addition to the 16 1 people I've already introduced, are composed of Saul 2 Levmore, who is the past president from the 3 University of Chicago; Evan Caminker, the Dean at 4 the University of Michigan; Michael Fitts, Dean at 5 the University of Pennsylvania; Elena Kagan, Dean of 6 Harvard University of Law School; Joe Knight, Dean 7 at the University of Washington's Law School; Karen 8 Rothenberg from the University of Maryland; Stewart 9 Schwab from Cornell University; and, last, Joan 10 Wexler from Brooklyn Law School. 11 And this statement's been approved by that 12 group. It is not, however, a statement of the 13 overall American Law Deans Association, nor does it 14 represent the view of every last member of that 15 association. In fact, I think it's safe to say that 16 all members do not share some of the views expressed 17 in this statement. So with that caveat, let me 18 proceed. 19 ALDA represents approximately 130 of the 20 deans of the American Bar Association accredited law 21 schools. ALDA, throughout its history, has sought 22 to address various aspects of accreditation that it 23 believes could be improved. Over the last few 24 years, ALDA believes that there have been 25 improvements in the accreditation process and thanks 17 1 members of the council and its accreditation 2 committee and standards review committee for these 3 efforts. There is still more to be done. 4 ALDA applauds and welcomes the formation of 5 the Accreditation Task Force by Chair William R. 6 Rakes and thanks Mr. Rakes and Chair Pauline 7 Schneider for their leadership on this important 8 matter. As ALDA told the National Advisory 9 Committee on Institutional Quality and Integrity of 10 the Department of Education, we see this as a very 11 positive step that we hope will result in 12 substantial improvements in the accreditation 13 process. As we also testified, we currently support 14 the principle or voluntary accreditation by the ABA 15 and simply wish to see it improved. The purpose of 16 the Task Force to examine the goals and methods of 17 accreditation at a more abstract level is precisely 18 what ALDA believes should be done. 19 Over the last few years, ALDA believes that 20 there have been improvements in the accreditation 21 process and thanks members of the Standards Review 22 Committee and the Council for the effort of 23 reviewing the standards line by line. Those 24 improvements have come, however, without the type of 25 overarching review that the Task Force is 18 1 undertaking and, thus, in ALDA's view have been 2 fairly ad hoc and unsystematic. 3 Guiding principles. The initial statement 4 of the Task Force as expressed in the memorandum 5 from the Task Force dated December 12, 2006, 6 identifies, quote, The general goals and principles 7 of a sound and appropriate system of accreditation, 8 end quote, which are expressed in the preamble to 9 the Standards for Approval of Law Schools, and 10 takes, quote, these generally accepted principles as 11 a starting point for analysis, end quote. 12 ALDA fully agrees with and supports this 13 approach of the Task Force. ALDA urges the Task 14 Force to recommend that the standards and the 15 approach to setting and applying the standards be 16 thoroughly revised so that they further only these 17 principles and not a range of other interests and 18 purposes extraneous to these principles. 19 ALDA sees the following principles as 20 central to the accreditation standards and 21 processes: 22 Minimum standards. The standards should 23 require a law school to provide a sound legal 24 education. In doing so, the standards should set 25 only the minimum requirements necessary to provide 19 1 such a sound legal education so that a law school 2 can comply with the standards in a manner that is 3 not unnecessarily wasteful of the law school's or 4 its students' resources. In evaluating whether a 5 law school provides a sound legal education, the 6 standards should be based chiefly on an evaluation 7 of the resulting legal education that a law school 8 produces and not on the specific inputs into the 9 educational process. 10 Second, consumer protection. The standards 11 should protect consumers, principally the public and 12 applicants to law schools and law students. 13 Third, supporting innovation. The 14 standards should permit a law school to pursue its 15 own mission in any way that it deems appropriate so 16 long as it meets the minimum requirements of 17 providing a sound legal education. ALDA does not 18 believe that the standards should dictate that a law 19 school have a particular mission or provide a legal 20 education in a specified way as long as the legal 21 education that the law school provides is a sound 22 legal education. 23 Some general considerations. The substance 24 of the current standards and the process and 25 procedures by which they are enforced are not 20 1 completely consistent with the above principles. 2 Over the years, ALDA has expressed multiple concerns 3 about both the substance and procedures of the 4 standards. Certainly there are many different 5 opinions among deans as there are among other 6 persons of good faith who are interested in legal 7 education about which standards and which specific 8 procedures are more or less in need of improvement. 9 ALDA does not intend to express a view on each of 10 the specific standards and procedures. Instead, the 11 ALDA board has agreed to collect from its member 12 deans for the Task Force individual information on 13 specific standards and procedures that raise 14 concern. 15 ALDA does believe, however, that it would 16 help the Task Force to hear its more general views 17 on the issues that should be addressed. 18 First, vision of the standards. In ALDA's 19 view, the current standards, which include many 20 input requirements that are more than the minimum 21 requirements necessary to provide a sound legal 22 education, tend to enforce a, quote, 23 one-size-fits-all, end quote, model of legal 24 education. The standards often seem to reflect the 25 good-intentioned effort of the rule makers to 21 1 articulate the ideal content of a sound legal 2 education and insist that all law schools approach 3 that model. Certainly the standards might require a 4 carefully thought through set of basic subject 5 matter coverage requirements, but a law school 6 should be allowed to satisfy the minimum 7 requirements of a sound legal education in the way 8 it best sees fit. 9 Unfortunately, insisting on a common model 10 has the effect of requiring a range of matters that 11 are not the minimum necessary to a sound legal 12 education. Moreover, this approach encourages 13 individual groups within legal education to press 14 the council to put into the standards specific 15 requirements that reflect their own particular 16 visions of legal education. 17 This dampens the ability of law schools to 18 be innovative. A constant complaint about law 19 schools is that they have changed little since the 20 days of Langdell. Legal education could benefit 21 from an influx of law schools that are attempting to 22 provide a sound legal education innovatively. 23 In addition to restricting how the legal 24 educators in each law school pursue their mission, 25 the requirements raise the cost of legal education 22 1 to our students overall, a matter of great public 2 concern. The standards should not instantiate a 3 particular or even a limited set of missions or 4 organizational structures for law schools. 5 Second general consideration, decision 6 making. Decisions about the substance of standards 7 should reflect the best judgment of a 8 decision-making body whose sole concern is ensuring 9 that the principles articulated above are 10 implemented as well as possible. 11 ALDA has been concerned that the decision 12 making on the standards and related matters has too 13 often sought to reflect a consensus among a whole 14 range of groups, many of whom have specific visions 15 of legal education that they would like to see be 16 the required model for legal education. A simple 17 example of this has been the composition of the site 18 evaluation teams with the unstated requirement that 19 each include a law librarian and a clinician. 20 While receiving a diverse set of views on 21 important issues is necessary, no one particular 22 group should be able to have its view of legal 23 education imposed on law schools through specific 24 standards. 25 Third, the evaluation process. The current 23 1 process of evaluating individual schools every seven 2 years through multiday visits by full site 3 evaluation teams is not the most effective means of 4 ensuring that the standards have been met. If the 5 goal is determining whether each law school is 6 providing sound legal education, it is clear that 7 the investigation needed will vary from school to 8 school. 9 Moreover, more use could be made of the 10 data that law schools are required to provide in the 11 annual questionnaire to identify areas of concern 12 for more careful investigation. Putting to the side 13 the burden on each school of the process, the 14 current process is wasteful of the valuable time of 15 the volunteers who selflessly serve on site 16 evaluation teams. Because of that, the consultant's 17 office does find it difficult to find volunteers and 18 there is a tendency for people with a particular 19 interest in an area of legal education to volunteer 20 at a higher rate. 21 Fourth general consideration, purpose of 22 site evaluation process. The site evaluation 23 process also suffers from a diffusion of purposes. 24 ALDA believes that the only required purpose should 25 be to gather information to allow the accreditation 24 1 committee to determine whether the law school 2 provides a sound legal education by complying with 3 the requirements of the standards. 4 Currently, site evaluation teams and their 5 reports evaluate all aspects of a law school and 6 often attempt to determine if a law school's 7 aspirations are being met, and there is little 8 direct reference in the report to specific standards 9 and the evidence gathered to determine whether a 10 school is in compliance with a particular standard. 11 Certainly, an individual law school should be free 12 to ask members of the site team for assistance in 13 how the law school, although already in compliance 14 with the minimum standards might improve its legal 15 education, but that assistance should be completely 16 independent of the compliance determination. 17 To many of our member deans, the two 18 purposes are often conflated with the aspirational 19 help appearing to be a matter of compliance. ALDA 20 takes no position on whether site evaluation teams 21 should be expressly limited in its investigation to 22 compliance with the minimum requirements or only 23 clearly distinguish between the two purposes. 24 Interpretation of the standards. ALDA 25 urges the Task Force to recommend measures that 25 1 would make the interpretations and practices of the 2 accreditation committee in evaluating law school's 3 compliance more transparent. For example, ALDA 4 applauds the recent announcement by the consultant 5 at the Consultant of the Department of the 6 Investigation Hearing that the committee would 7 publish its standards for evaluating the bar passage 8 rates of law schools. 9 Clearly, however, there remain many areas 10 where there is an unannounced common law that the 11 committee follows. For example, Standard 405(c) was 12 applied to schools according to an unstated 13 interpretation that seemed to vary over time and 14 across schools. Likewise, the interpretation of 15 Standard 606 apparently includes an unstated range 16 of the minimum number of volumes that a new law 17 school must have to obtain accreditation. 18 Understandably, confidentiality about the 19 specific circumstances of individual schools is 20 important to those schools involved. That need -- 21 that need for confidentiality, however, does not 22 also require that law schools be kept in the dark 23 about the way the committee has interpreted the 24 standards in the past. 25 My last topic in terms and conditions of 26 1 employment. ALDA does have an express view on the 2 standards that require that specific employees of a 3 law school or university have certain terms and 4 conditions of employment. This is the issue on 5 which ALDA testified at the Department of Education 6 hearings, and we attach our various statements to 7 that committee. 8 ALDA urges the Task Force to recommend that 9 the council remove from the standards all references 10 to terms and conditions of employment and urges that 11 the council do so as soon as possible. Such 12 requirements are a prime example of the more general 13 issues cited above. 14 To our knowledge, requiring specific terms 15 and conditions has no precedent in the accreditation 16 standards of other educational institutions and 17 programs and do not for very good reason. They are 18 not necessary to provide a sound educational program 19 and impinge unnecessarily on the institutional 20 autonomy of law schools and universities. As stated 21 above, a law school should be judged on the quality 22 of its educational product. 23 While requiring tenure or tenure-like job 24 security for faculty and other employees certainly 25 might improve the program of legal education of a 27 1 particular law school, there may be other means to 2 achieve whatever positive benefits there are. There 3 are also circumstances in which it can harm a 4 program by reducing the flexibility of the program 5 to adjust to changes in the profession. It is 6 certainly the case, for example, that some law 7 schools have limited their provision of clinical 8 education because of their unwillingness to bring on 9 employees with life-time or similar long-term 10 contracts. 11 Finally, such requirements increase the 12 costs of providing legal education to our students. 13 The decision about the terms and conditions on which 14 a law school or university hires its faculty and 15 other employees should remain with the individual 16 law school and its university as long as the law 17 school provides a sound legal education. 18 In particular, ALDA recommends that the 19 following standards be removed or modified to 20 eliminate the requirement that law schools provide 21 certain terms and conditions of employment. 22 One, the dean. Standard 206(c). Except in 23 extraordinary circumstances, a dean shall also hold 24 appointment as a member of the faculty with tenure. 25 Second, student-faculty ratio. 28 1 Interpretation 402-1(1)(A). For the purposes of the 2 published student-faculty ratio, a law school must 3 differentiate among faculty and instructors based on 4 the terms and conditions of their employment by 5 counting certain faculty who are not on tenure track 6 or its equivalent who teach a full load as 0.7, and 7 adjuncts, emeriti faculty, nontenure track 8 administrators who teach, librarians who teach, and 9 teachers from other units of the university as 0.2. 10 This provision creates perverse incentives that may 11 limit hiring of nontenure track faculty. 12 Next, faculty. Standard 405(b) and 13 Interpretation 405-1. A law school shall have an 14 established and announced policy with respect to 15 academic freedom and tenure. To the extent that it 16 is interpreted to require a system of tenure or 17 tenure-like job security. 18 Next, clinical faculty. Standard 405(c) 19 and Interpretations 405-6, 405-7, and 405-8. Quote, 20 A law school shall afford to full-time clinical 21 faculty members a form of security reasonably 22 similar to tenure and noncompensatory perquisites 23 reasonably similar to those provided to other 24 full-time faculty members, end quote. 25 Next, legal writing faculty. Standard 29 1 405(d). Quote, A law school shall afford legal 2 writing teachers such security of position and other 3 rights and privileges of faculty membership as may 4 be necessary to attract and retain a faculty that is 5 well-qualified to provide legal writing instruction 6 as required by Standard 302(a)(2) and to safeguard 7 academic freedom. 8 And last, law librarian. Standard 603(d) 9 and Interpretation 603-3. Quote, Except in 10 extraordinary circumstances, a law library director 11 shall hold a law faculty appointment with security 12 of faculty positions, end quote. 13 ALDA believes that a legitimate purpose of 14 the terms and conditions of employment standards 15 listed above may be, as mentioned at different 16 points in the standards, academic freedom. ALDA 17 strongly endorses that purpose but believes that 18 protection of academic freedom requires that a law 19 school or its university have in place, quote, 20 arrangements sufficient to ensure academic freedom, 21 end quote, not that it provide various classes of 22 faculty with employment security. 23 ALDA applauds the recent actions of the 24 accreditation committee with respect to at least two 25 of its members, which recognized that Standard 30 1 405(c)'s requirements are met by having in place a 2 procedure to permit all faculty, regardless of the 3 terms of their individual employment, to challenge 4 adverse actions that allegedly violate the 5 principles of academic freedom. 6 ALDA believes that a legitimate purpose of 7 the standards would be to require that a law school 8 have the teaching resources necessary to provide a 9 sound legal education to its students. 10 In conclusion, ALDA thanks Chair Patricia 11 Schneider and the members of the Task Force for 12 their attention and consideration of the views of 13 most of the deans in our law schools. ALDA stands 14 ready to engage in further discussions with the Task 15 Force, provide whatever information and assistance 16 that it can, and assist the Task Force in 17 formulating its recommendations. Thank you. 18 MS. SCHNEIDER: Thank you. 19 Does anyone know if they have any questions 20 they would like to ask? 21 Thank you very much. 22 Paulette Williams, CLEA. 23 MS. WILLIAMS: Thank you. Good afternoon. 24 For the record, my name is Paulette Williams. I 25 call myself Paula, though, and I teach at the 31 1 University of Tennessee College of Law. I am 2 pleased to have this opportunity to speak to the 3 Accreditation Policy Task Force in my capacity as 4 president of CLEA, the Clinical Legal Education 5 Association. 6 We appreciate the opportunity to engage in 7 a conversation with the Task Force on the policy 8 issues raised by the accreditation process. CLEA 9 plans to actively participate in this process with 10 you by making this statement. We will submit the 11 statement in writing to you and we also plan to 12 submit further statements and testify at the hearing 13 scheduled for February. 14 Today I wish to make a brief statement 15 addressing an issue relating to Standard 405(c) on 16 security of positions for clinicians and the 17 transparency of the process for administering the 18 standards. 19 We are concerned that there has not been 20 sufficient transparency in developing the 21 interpretations of the standards and the problem. 22 The concern is that common law applied 23 interpretations have been developed and applied 24 without public comment and discussion. These 25 interpretations can have the impact of altering the 32 1 plain language of the interpretations of the 2 standards. 3 We are also concerned about the weight that 4 is given to interpretations as opposed to the plain 5 language of the standards themselves. The recent 6 example illustrates the problem involving the 7 accreditation process with the clinicians at two 8 member schools, Northwestern and St. Louis 9 University. 10 Standard 405(c) says in part: A law school 11 shall afford to full-time clinical faculty members a 12 form of security of position reasonably similar to 13 tenure and noncompensatory perquisites reasonably 14 similar to those provided to other full-time faculty 15 members. 16 At Northwestern School of Law, there are 17 31 -- 18 (Lights go out.) 19 (Laughter) 20 MS. WILLIAMS: Okay. All right. At 21 Northwestern there are 31 full-time clinicians who 22 are on one-year contracts and Northwestern has been 23 found to be in compliance with 405(c). An 24 interpretation of 405(c), which says that one-year 25 contracts are, quote, reasonably similar to tenure, 33 1 violates the plain language of the standard. An 2 interpretation that justifies this result on the 3 grounds it act and freedom misses the point of 4 Standard 405(c). This interpretation is 5 inconsistent with the standard. It sets a bad 6 precedent and violates the principle of transparency 7 in the process of interpreting the standards. 8 The goal of clinicians, the clinicians that 9 we at CLEA represent, is to provide the 10 highest-quality legal education to our students that 11 we can. I assume that this is something that we can 12 all agree upon. Our goal is also to provide the 13 training of students and students -- to promote the 14 training of students in the skills they will need to 15 be effective, ethical professionals. We provide 16 teaching methods and experiences that -- that will 17 give students valuable practice and experience in a 18 supervised setting. Those experiences are designed 19 to prepare them to enter the profession ready to 20 practice law. 21 We are also promoting social justice 22 through our service to clients. The work of 23 clinicians on teaching methodology, the development 24 of expertise, learning theory, experiential learning 25 and other aspects of learning from practice, has 34 1 made enormous contributions to legal education, and 2 as a part of a complete package of legal education, 3 has contributed much to the value that law schools 4 offer to our students. 5 CLEA and other advocates for clinical 6 education have long taken the position that in order 7 to attract highly-qualified faculty to teach in 8 their clinical programs and to recognize the value 9 that clinicians add to the educational enterprise 10 and out of basic fairness, clinical faculty deserve 11 to have security and position and comparable rights 12 in law school governance to those of the nonclinical 13 faculty. 14 We at CLEA will be petitioning the council 15 and the accreditation committee to reexamine the 16 determination that has been made in the 17 interpretation of 405(c). We look forward to 18 continuing this discussion about how we may improve 19 the accreditation process and legal education 20 generally. 21 Thank you very much for your attention. 22 MS. SCHNEIDER: Thank you. 23 Do any of my colleagues have any questions? 24 Thank you. 25 I have three people who have signed up. 35 1 Dean Harbaugh from Nova Southeastern. 2 MR. HARBAUGH: I'm Joe Harbaugh, Dean of 3 Nova Southeastern University's Law Center, and I 4 have a very brief comment that I'd like to make to 5 you. If I could change my glasses so I can see. 6 (Pause) 7 MR. HARBAUGH: The information that the 8 Task Force distributed to the deans and the legal 9 education community mentioned how important it was 10 to foster innovation and creativity in legal 11 education. Indeed, your memo said that prior 12 reports on law school accreditation and legal 13 education have recognized that excellence in legal 14 education is best supported by encouraging pluralism 15 in innovativeness, and that accordingly, the 16 accreditation process should afford law schools 17 maximum degree of independence, autonomy and 18 opportunities for innovation and uniqueness. 19 In making this statement, you quoted or 20 referenced two prior task forces of the ABA section. 21 Both Wahl Commission Report and the MacCrate 22 Commission Report -- MacCrate Task Force report. I 23 was very proud to be on both of those task forces 24 and underscore that the Wahl Commission and the 25 MacCrate Task Force focused a good bit of attention 36 1 on uniqueness and innovation. It's my sense that 2 the present standards, particularly Standard 802 and 3 its interpretations, do not allow very much 4 flexibility for innovativeness on the part of law 5 students. 6 I urge you when you revisit the standards 7 to look at 802 and the variance provisions and look 8 at the history of variance requests by law schools 9 and how they were treated to consider whether the 10 language ought to be changed or the process ought to 11 be changed that would allow greater flexibility and 12 greater experimentation within the orbit of the 13 standards, but allowing those of us in legal 14 education to innovate and create so that there are 15 differences between and among schools and progress 16 in education. 17 Thank you very much. 18 MS. SCHNEIDER: Thank you. 19 Any questions for Dean Harbaugh? 20 Thank you. The next person I have is Gary 21 Palm. 22 MR. PALM: How long do we have the room? 23 MS. SCHNEIDER: Excuse me? 24 (Laughter) 25 MR. PALM: How long do we have the room? 37 1 (Laughter) 2 MR. PALM: My name is Gary Palm and I am a 3 retired law professor from the University of Chicago 4 Law School. I served as -- 21 years as director of 5 the clinic there and 30 years in various 6 professorial type with various professorial titles. 7 I am going to retiring from the board, finishing 8 mass CLEA and I really want to say I'm not here 9 speaking for CLEA, but I'm going to refer to CLEA 10 throughout my talk as taking positions as some 11 others have done about their organizations. This is 12 my statement and mine alone. 13 First, I am disappointed, although talking 14 to some here it appears on the first page there is a 15 reference to diversity. And at your meeting I 16 thought that this was going to be one of the primary 17 concerns that would be a part of the accreditation. 18 Now, maybe I misheard that, but I would hope that in 19 terms of most students and faculty we need a -- a 20 diverse teaching environment and learning 21 environment, and this is the future of America and 22 of the world. So I hope that as was just mentioned 23 in the preamble, I hope the progress that has 24 recently made up indicates that, so. 25 Now, some other things I'll just highlight 38 1 quickly and I think there are things that the 2 Committee hasn't thought about yet. Consider 3 getting rid of the EOE. Really, why do you jump 4 through all these hoops to satisfy the EOE when it 5 only relates to, at the most, any -- right now it 6 could be 17 schools that are 7 nonuniversity-affiliated. All the 8 university-affiliated schools are approved by a 9 regional accrediting body. So they don't need you 10 for that, and many of the nonuniversity affiliate 11 stand-alones have made the correctional arrangements 12 with the regional bodies. 13 I don't know what the numbers are, but I 14 bet it's under ten now left, using the ABA for 15 purposes of federal loans. They just walk you 16 through all kinds of -- you don't need them. Just 17 walk away from it and everybody -- you know, you 18 still have the responsibility to the states and I 19 think you'll have to do all this other bureaucratic 20 stuff fairly. All of it has little to do with legal 21 education. 22 Along that line, I really don't know what 23 happened and I would hope that you would consider 24 why it is we now have the accreditation committee as 25 a separate accrediting body. I mean, this was 39 1 approved by the EOE. There was no action that I 2 know of by the council. Should the accreditation 3 committee be a separate accrediting body? I think 4 that really should be on your agenda so that it's -- 5 it's -- it can operate independent of standards 6 review and other council and make its own decisions. 7 And my next point is that the debate with 8 Dean Van Zandt and others who share his views is 9 really about the importance of clinical education. 10 I'm from Illinois. We had the Douglas-Lincoln 11 debates. I wasn't there for that, but -- 12 (Laughter) 13 MR. PALM: That debate, they pretended it 14 wasn't about slavery, you remember? They pretended 15 it was about state's rights and letting the states 16 alone; let there be autonomy of the states. And 17 this is what this is about, really. Why do they 18 need to have one-year contracts that could be 19 terminated almost with no short notice so they could 20 close ranks when they have other priorities? What 21 you have to say, I think, it's a matter of 22 educational importance that you can't have a decent 23 law school experience, you can't be fit to practice, 24 you can't be fit to sit for the bar without having 25 clinical education. That's where we've come and 40 1 they're going to have to provide it. 2 Now, I don't think you can avoid getting 3 into the issue of some status to work on how that's 4 going to be. I'll give you my example. This is the 5 University of Chicago. Their dean now who's 6 involved with a deposition I had a couple of weeks 7 to take and my case is against the university. 8 Their position is that after 30 years you can have 9 your contract not renewed for no reason. They don't 10 have to articulate any reason, and that's the same 11 result that was just so ordered by the accreditation 12 committee. 13 So this whole question is very complexed 14 and I don't know exactly -- in some ways I think 15 your group ought to stay out of it, you know. It 16 seems to me it is getting to a sort of standard 17 review level of management and that we need to make 18 clear that clinical education is here and it 19 shouldn't be diminished. 20 The next thing is on outputs. I like a lot 21 of what I heard at your meeting, but it shouldn't be 22 bar exam passage rates. It should be bar exam 23 scores. Because state supreme courts have been 24 raising the cut rate, the cut score, and so the 25 problem is that it's a moving target. In Illinois, 41 1 they raised it and the truth was they raised it 2 because we have more students doing better on the 3 bar exam. We've done a better job as law professors 4 and in part because of the presence of the clinical. 5 That hasn't been there in earlier days. And that, I 6 think, is honestly a decision made about the size of 7 the bar and not about the quality of the people 8 applying to become attorneys. 9 I think there's a major issue on yours 10 is -- that you've avoided is whether you're going to 11 facilitate or not the U.S. and this world war -- 12 U.S. News of World Report ratings system. As it is 13 now, you do facilitate it through your statistics. 14 You provide all the information that they can base 15 their ratings on. And I think you have to come out 16 against them. It's being misused. It's not a fair 17 consumer protection device and, you know, it's a 18 tough one. Maybe that goes to some other committee 19 you have, but you should talk about that. 20 And the last thing is that the -- Bucky 21 won't like this, but I like it. I don't think 22 everybody else will. I think you ought to say 23 something about how much change there has to be in 24 the budget. I mean, the deans are fine, you know. 25 They wanted all this change, but they don't want to 42 1 see that it has to be paid for. You're doing it on 2 the cheap. You need to triple that budget in the 3 accreditation project, which I don't know what it 4 need because that's all 40 percent by the ABA, but 5 the staff is way overworked for even what you're 6 trying to do now. And most accrediting bodies have 7 much more staff and use the volunteers, that I agree 8 with, should be used up. So anyway, I'll supply a 9 written statement more fully to discuss this. 10 Thank you. 11 MS. SCHNEIDER: Any questions for Gary? 12 Okay. We have Tom Perez of Maryland. 13 MR. PEREZ: Good afternoon. My name is Tom 14 Perez. I have the privilege of teaching at the 15 University of Maryland Law School. I'll note 16 briefly for the record that when the witness 17 testified and the lights went out, this was shortly 18 after she talked about transparency. 19 (Laughter) 20 MR. PEREZ: And so I will leave those 21 remarks until the end of my presentation. 22 I teach in the law and health program as 23 well as the clinic, and in connection with some of 24 my work I'm doing with students, I've currently 25 embarked on a project with the Kellogg Foundation 43 1 relating to accreditation. They asked myself and a 2 couple of coinvestigators to look at the issue of 3 how accreditation in medicine, dentistry, nursing, 4 and psychology can be used to leverage increases in 5 racial and ethnic diversity in those professions. 6 And so my coinvestigators and I and 7 research assistants have spent much of the last few 8 months interviewing people in various disciplines, 9 including but not limited to those that I mentioned 10 but also including social work, law and optic 11 medicine, to take a look at their processes. 12 And I've learned a lot about accreditation 13 over the last few months, and I thought I would 14 share some of my insight as you move forward on your 15 committee. And I would urge you as a threshold 16 matter as you go through this incredible, important 17 work that you're doing, and I thank you for doing 18 it, to take a look at some of the other disciplines 19 and to look at and compare perspective because I 20 predict that you will learn a lot from them. 21 As a threshold matter, what I've observed 22 is that there appears to be a struggle or a split of 23 opinion in terms of what the role of accreditation 24 ought to be. There are some -- if I brought seven 25 or eight representatives of the various disciplines, 44 1 you would hear some who would ascribe to the -- what 2 I call the minimal standards approach or view of 3 accreditation. Sometimes people call it the 4 underwriters' laboratory view. If you plug in the 5 toaster, you won't get electrocuted. That's a view 6 of the world. There are also others who look at 7 accreditation as a process of continuous quality 8 improvement. 9 They're not necessarily mutually exclusive, 10 but what we've observed so far is that there is a 11 very significant diversity of opinion on what the 12 role is, and it seems to me as you move forward, it 13 would be useful to have that discussion and to 14 figure out whether there is consensus on what the 15 precise role is. Because it seems to me that so 16 many things flow from a consensus, if there is one 17 to be had, on what your role is. 18 There appears to be a movement among other 19 accreditors to an additional focus on outcome or 20 outputs as opposed to inputs. And that raises or 21 demonstrates a number of challenges in the social 22 work context. The Council on Social Work Education, 23 they have made a significant movement in this area 24 in their standards and they're in the process right 25 now of revising the standards, and the feedback they 45 1 have gotten has been decidedly mixed. Because it's 2 a little bit easier to focus on do you have this 3 item in your curriculum or that item or that item as 4 opposed to are you producing culturally competent 5 social workers. 6 That's the outcome measure. That becomes a 7 much more amorphous process. And while it has many, 8 many benefits and that is where I see the movement 9 overall, I think it would be useful to have a 10 conversation, for instance, with the social work 11 accreditors to talk about what has their experience 12 been as they've attempted to move more towards an 13 output- or outcome-based form of accreditation. 14 Because there are a number of challenges 15 that emerge, and it's certainly something of 16 significant interest, but again cultural competency, 17 I think, is a very good example. How do you measure 18 whether your law school has produced 19 culturally-competent graduates? Well, ultimately 20 what ends up happening is you get back to a focus on 21 inputs. What courses do you have? What modules do 22 you have? And so it becomes the same conversation, 23 but I think there are a lot of lessons that can be 24 learned from other disciplines. 25 Transparency. I would simply, before the 46 1 lights go out, urge you to have a conversation with 2 the people in public health. The area of public 3 health has a very different view of the world on the 4 issue of transparency. You can get every piece of 5 information that you want, including the site visit 6 reports, the documents, every single document that 7 is available in the public health setting. They are 8 out there. Psychology has a much different school 9 of thought and feeling on that. I simply throw it 10 out there. 11 We asked a series of questions of all the 12 people we interviewed, and at least the public 13 health people pointed out that all of the concerns 14 about their entities they have, such as potential 15 for losses, potential for releasing information 16 that's proprietary, those issues and concerns, while 17 they're legitimate in their context, they're not 18 coming fast. So you might find it useful to take a 19 look at public health and their experiences there. 20 The issue of diversity. The things that 21 are happening vis-a-vis the ABA and the Department 22 of Education came up in literally every interview 23 that we conducted, and they look at you 24 appropriately as the leader in this area of 25 diversity and I commend you for your work. 47 1 A couple of observations on diversity. The 2 issue of a structural diversity. We -- and by 3 structural diversity, I'm talking about the issue 4 really of numbers, both faculty and staff. One 5 thing that I've observed is that oftentimes when 6 there's a focus on structural diversity and asking 7 schools to take efforts to increase the numbers of 8 underrepresented minorities within the faculty and 9 student ranks, sometimes it has the effect of 10 creating robbing from Peter to pay Paul. 11 And we haven't yet observed the standards 12 that I would call a collective standard. What are 13 you doing to increase the pie as opposed to robbing 14 from Peter to pay Paul? And as you look at 15 diversity down the road, I would urge you to take a 16 look at is there a way in which a collective 17 standard? What is our institution doing to increase 18 the pipeline? What is our institution doing to make 19 sure that we're -- we're not robbing from Peter to 20 pay Paul? I think that would be a very important 21 issue to look at. 22 Similarly, cultural competence -- social 23 work, I guess, is probably the best example. Other 24 standards are very, very focused on the issue of 25 producing culturally-competent social work 48 1 professionals and on the issue of institutional 2 climate. And so as we look at diversity, I would 3 urge you again to look at all the three prongs: the 4 structural diversity, the institutional climate and 5 opportunities for cultural competence. 6 Finally, one thing that comes up time and 7 time again in the conversations that we've been 8 having, and I would encourage you to have a 9 conversation, is the issue of leadership. It 10 doesn't simply come up in a diversity context, 11 although it always comes up in a diversity context. 12 Leadership is absolutely necessary, albeit 13 insufficient conditions of change as it relates to 14 leadership -- as it relates to diversity. And the 15 Joint Commission for Accreditation of Healthcare 16 Organizations, for instance, has a number of 17 measures in their accreditation standards that look 18 at the issue of leadership. What is the leadership 19 of an organization doing on the issues at hand, the 20 issues that we find are the core issues that are the 21 focus of our accreditation? 22 And I would urge you to have a conversation 23 about leadership, not simply as it relates to the 24 issues of diversity, structural and otherwise, but 25 on the core issues that you find that ought to be 49 1 the most important component of the accreditation 2 process. 3 I urge you to take a look at the Jayco 4 process and ask the question: Should we be 5 including questions about or standards relating to 6 what the leadership of the various law schools are 7 doing to facilitate the goals that we're talking 8 about? Those are the things I've learned, in a nut 9 shell, and I'm glad to share them further with you 10 over time. 11 MS. SCHNEIDER: Thank you. I think there's 12 a question. 13 MR. SYVERUD: One, you talked about outputs 14 versus inputs, and that is, of course, an issue of 15 great interest and importance to all of us. So I'd 16 be grateful for a little in the way of enlightenment 17 from you ON that and I think it might be somewhat 18 useful to everyone in the room. 19 When you talked about the social work 20 schools, you gave us a good example of a situation 21 in which they sought to focus on outputs and ended 22 up moving back into inputs. So given that you 23 studied this, could you help us get a better sense 24 of how to move from an input measure to an output 25 measure and talk about legal education that would be 50 1 if you want to other fields? 2 MR. PEREZ: Let me come back for a moment 3 to social work, because that's the one that's 4 freshest on my mind. Their standards were most 5 recently reenacted in 2002, they're undergoing their 6 process in 2008. So we'll have new standards. And 7 the standard prior to 2002, as it related to 8 diversity and cultural competence, they had very 9 specific do you have course -- what courses do you 10 have on difference? What courses -- what speakers' 11 series do you have on difference? And there was a 12 very specific series of measures, and the consensus 13 between '94 and 2001 was that they were creating a 14 very mechanistic process. You check a box, okay, 15 have that course, have that module. 16 This isn't working, and so now -- I don't 17 have the standard in front of me, but the standard 18 is much more focused on you will develop a program 19 of instruction that demonstrates an understanding of 20 and commitment to producing social workers capable 21 of thriving in environments of difference. 22 And there are some people who have 23 criticized that and said that that actually 24 represents a step backward because it's more 25 difficult to measure. And so I would answer your 51 1 question in part by saying that this is a work in 2 progress. I have yet to see an outcome- or 3 output-oriented standard where there is a consensus 4 that this standard has moved the ball forward and is 5 really working well. 6 I can tell you that many accrediting bodies 7 are struggling mightily with the question that you 8 raised. It's just that it's one of the many $64,000 9 questions. It continues to be a work in progress, 10 and the question is always how then do you measure 11 it? Do you -- do you allow the self-study to be the 12 measuring component? Well, then, there's, you know, 13 arguable challenges with that. How do you 14 independently measure that? 15 And that to me is the real tension, and I 16 wish I could tell you that there's a magic ball that 17 you only look at psychology or others, but I haven't 18 yet found that, and maybe it reflects whether I 19 haven't investigated enough. But on February 13th 20 we're meeting with all these bodies, and that's one 21 of the questions that we're going to ask, and we 22 invite the ABA to that meeting. So I hope we can 23 learn from that. 24 MR. SYVERUD: Thanks. 25 MR. MORGAN: I just want to assure the 52 1 group we are systematically studying the 2 accreditation standards from professionals as part 3 of the work of the Task Force. 4 MR. PEREZ: Thank you. Thank you for your 5 time and thank you for the opportunity. 6 MS. SCHNEIDER: My next person is Rick 7 Matasar from New York Law School. 8 MR. MATASAR: Rick Matasar from New York 9 Law School, where I am serving as the dean. I'm 10 appearing in my individual capacity, not as a dean 11 but as a person of the academy, a faculty member and 12 someone who has been around a bit. 13 (Laughter) 14 MR. MATASAR: This is a very complex task 15 that you're taking on because you're trying to take 16 widely disparate institutions and array them against 17 each other by some set of standards that will allow 18 you to decide what's on one side of the line and 19 what's on another side of the line. The tendency 20 over the years has been to homogenize the way we 21 look at our schools in order to be able to assess 22 them against some single standard, and that has its 23 problems because when you look at the public and the 24 private school or the for-profit and the 25 not-for-profit school or the independent school or 53 1 the start-up school or the school that has been 2 around for a hundred plus years, it is very unlikely 3 that the same set of standards would yield any 4 useful information above a very small minimum or 5 medium minimum or a high minimum that gives us a 6 sense of where the bottom of the line ought to be on 7 the quality of legal education. 8 I've been in the legal education for 9 27 years, five law schools, dean of three different 10 law schools over the last 16 years. I've been on 11 five site teams, where I was visited those schools. 12 I've chaired three site teams and I've been on other 13 site teams over the course of the last 15-year 14 period. 15 And I guess what my impressions and the 16 process and hopefully add a little bit toward our 17 debate by suggesting an attitude towards this 18 process that ought to be reflected within the 19 standards. 20 I think that David Van Zandt, in speaking 21 of a sound legal education, has really captured the 22 essence of what our standards all look like. A 23 sound legal education would be an education by which 24 the person who acquires the education through coming 25 to the school would be equipped with the tools that 54 1 would allow him to graduate and achieve a set of 2 identifiable goals that legal education provides 3 value for, and that's slightly different than the 4 nuanced interpretation of what we do. 5 We don't only produce lawyers. We produce 6 people for whom a legal education is a valuable tool 7 on the transition to a gainful, useful life as a 8 citizen. And if we conceive only of what we're 9 doing as producing a lawyer or a particular kind of 10 lawyer, we greatly diminish the capacity of our 11 190-plus institutions to create value for the 12 society through the education of their expending 13 their funds out. 14 And so when I talk about a sound legal 15 education and I hope we adopt a set of standards 16 that are flexible in thinking about what a sound 17 legal education might be. A sound legal education, 18 for purposes that are best understood by clinician 19 of the school that is being evaluated. 20 There are at least three critical lenses 21 that I think are important to us to focus upon. 22 Cost. Ought we have standards that promote 23 aggregating costs in order to achieve some set of 24 goals, or is it enough for us to have a minimum set 25 of cost that might be imposed because it's necessary 55 1 for the sound mission, but anything beyond that set 2 of cost is really aspirational and goal setting. 3 My attitude to this would be to minimize 4 the cost and find it acceptable for an institution 5 that is using its resources in an effective way to 6 deliver an education. That has implications for 7 many of the standards. For example, how many 8 faculty members are necessary and at what ratio to 9 the students by what component of faculty? Must all 10 faculties be full-time members of the faculty, or is 11 there a particular version of how a full-time 12 faculty is necessary to ensure quality education? 13 The answer might be different in Iowa City, where I 14 was once at the University of Iowa and there were 15 very few lawyers who could be drawn upon to educate 16 the students of a school, than there might be in New 17 York City, where there is a substantial high-quality 18 bar with excess time on its hands and the desire to 19 impart knowledge on young people. That's a question 20 I'd like to think about more. 21 How long is legal education, and must it 22 be -- is it a three-year box? Is it a two-year box? 23 What if it's a two-year box with a year where we 24 encourage externships that the students can take pay 25 instead of as they currently cannot do, take pay and 56 1 receive credit. Could a sound legal education exist 2 in less than a three-year box? Do we all need a new 3 building? Really? 4 Distance learning. Could a law school 5 effectively deliver legal education, predominantly 6 through legal distance education, and if it did, 7 would that be bad for America if it reduces the cost 8 for our students quite substantially? If our 9 standards are not sufficiently flexible to allow us 10 to ask those questions and create institutions that 11 might try it a different way, we're inhibiting the 12 ability to deliver the education our students need. 13 Second, access. Innovation, creativity, 14 promotion or stifling. We do not experiment by 15 permission. We experiment through subterfuge, 16 through avoidance and through knowing that the cycle 17 is a seven-year cycle that gives you four or five 18 years to try interesting things. We could change 19 that by really literally saying, Well-Constructed, 20 well-thought-through feelings of delivering 21 education differently should be promoted, not 22 permitted. 23 Are we a profession that sees our role as 24 advancing the course of our students' education 25 through other methodologies, and our standards ought 57 1 to reflect those things because if we want a sound 2 legal education defined by a school. There may be 3 many ways to achieve those goals, but if only some 4 are permitted, we're going to lose the range. 5 Kent Syverud, in another meeting yesterday, 6 said what I felt was a brilliant thing. He said, 7 Can we all exist as Ritz Carlton law schools? Can't 8 we have Motel 6 law schools? There are clean beds 9 in both places, but some of them are just fancier, 10 deeper pile. And I think that's really a wonderful 11 way of thinking about how experimentation might take 12 place. 13 And process. Do we want a process that is 14 costly, cumbersome, and that creates for all of us 15 to the highest level? As a member of a site team, I 16 know it's a tremendous burden to be on that site 17 team. I don't do my homework until very late in the 18 game, and when I go out, I have to know everything 19 about the school, and most of the things about the 20 school aren't really relevant. Only some of them 21 might be relevant, a very few things at any given 22 school. 23 Can we tailor our process for a school 24 that's been at this game for a long time to know 25 that most of the stuff is okay at that place? Is 58 1 there a way to make a set of standards that would 2 work in that fashion? 3 Shouldn't we be able to disaggregate the 4 purposes of the current process from those things 5 that are about complying with the standards to those 6 things about the aspiration of the school? And if 7 we can disaggregate them, shouldn't we allow them to 8 be disaggregated in some level of consultation with 9 the school who want consultant (coughing) to come 10 along to evaluate you. A consultant can help you 11 with aspiration, but it doesn't filter into the part 12 of the report that's about whether you're providing 13 a sound legal education. 14 Transparency. From visit to visit over the 15 time that I have been a dean, visits have gone 16 extremely well or extremely badly because of the 17 great variations in differences among the attitudes 18 of the team that are on-site. Some members of the 19 teams believe that what they are doing is finding 20 out what's wrong with the school. And I would 21 submit that the process ought to begin with the 22 presumption that schools are doing a good job if 23 they are in fact producing lawyers, if they are in 24 fact passing the bar, if they are in fact taking on 25 good careers. 59 1 We know that from the takeoffs, from the 2 data that we collect, that schools are adequately 3 performing before we ever get to the school. If 4 that's the case, let's assume they're a compliant 5 school and talk about the ways in which they might 6 be better at doing things or the small little things 7 that are not quite working as well as they could, 8 rather than seeing it as a process by which we 9 discover the things that are wrong. Why would that 10 be? Site visits should not be a method by which 11 every faculty fight is refought for the benefit of 12 strangers, and it becomes that on many site visits. 13 Other issues of transparency. Site reports 14 get written in a tone that sees one way and the 15 accreditation report comes back written as if it is 16 a completely different law school that was looked 17 at. How is that so? There must be a black box into 18 which the report has been put and a very different 19 set of standards applied to it. We need to know 20 more about what goes on, not on the site visit 21 (coughing) transparent and read by the entire 22 community but by the thinking processes that went 23 into deciding what issues were real issues and which 24 were not. 25 And finally, the question of process. It 60 1 is a method by which too few people have 2 participated and too many people have participated 3 too much. We need to widen our array of people that 4 will be volunteers so we can't find them in our 5 process -- something's wrong with our process if a 6 shared ownership of legal education falls on the 7 faculty, in the administration and in the 8 profession. We ought to find tremendous numbers of 9 people willing to volunteer, more than what we've 10 done. And I guess in part it's because there's been 11 a great deal of antagonism between the regulated 12 industry and the regulator. And it's hard for 13 someone who is as antiregulation as I have become 14 over the years to muster the ability to say yes, to 15 impose upon other people as I come to the site 16 visitor. 17 So I want to share with a thought I had 18 when came to a site visitor. I've asked the 19 question: What can I do to help you. Not what can 20 I do to help you extort resources from the 21 university? What can I do to help you as a school 22 and make this process useful to the school? I'd 23 like to see that as our attitude in these new 24 standards. 25 MS. SCHNEIDER: Thank you. 61 1 Are there any questions. 2 Thank you. 3 Vanessa Merton, Pace Law School. 4 MS. MERTON: Hi. I'm Vanessa Merton. I'm 5 currently teaching at Pace Law School in White 6 Plains, New York. I've been in legal education, God 7 help me, for 30 years, both as a teacher, a scholar, 8 an administrator, a director, associate dean, and 9 also, fortunately, as someone practicing law through 10 all but a few of those 30 years through the clinical 11 programs of the law schools and one year at Kibby 12 and now Pace at which I've taught. I've also been 13 on other site inspection visit where I've spent -- 14 gone through about three or four site visits and on 15 the receiving end, particularly a memorable take one 16 and this law school I still remember where the 17 finest actually in retrospect. 18 I'd like to submit some written remarks as 19 other people have indicated, so I'm just going to 20 hit some highlights. It's not going to be 21 particularly integrated or coherent, but there were 22 a few themes coming up in the remarks so far that I 23 did want to respond to or present what I think is a 24 somewhat different perspective. 25 First of all, I think in the material that 62 1 you've developed, which is excellent, when you talk 2 about the public, I'd like to see you focus on 3 really who that public is. And what I'd like to ask 4 you to do is to think of the public whom you are 5 serving through doing the work you're doing as the 6 future clients of the graduates of our law schools 7 and to really think about what that means and how 8 little there is between the average, ordinary person 9 who's trying to find a decent, competent lawyer and 10 actually being taken advantage of, exploited or 11 provided with very poor representation because, 12 unfortunately, I think we can all agree that our bar 13 exams don't completely do that job. 14 I'm intrigued by the notion of the -- that 15 the law schools, all law schools are not producing 16 only lawyers, practitioners. We've certainly heard 17 that, and we certainly know that to be true, and I 18 think that any law school that is willing to say, 19 look, we're not about training, presenting, 20 educating people who are going to be practicing law. 21 That's not what our mission is. That's not what we 22 want to do. I think it's fair to say they shouldn't 23 be subject to the same accreditation standards as 24 law schools taught, but I've not yet heard of a law 25 school that has identified itself as being in that 63 1 category, although there are a few that sort of come 2 close. 3 Secondly, I wanted to come back to some of 4 the comments about looking at the accreditation 5 process of other professions, and I just want to 6 make sure you focus and you do that on the reality 7 that we're one of the very, very, very few 8 professions left that doesn't require supervised, 9 carefully-crafted, practiced experience, not paid 10 experience, where the goals, objectives of the 11 employers are not primarily the education and 12 development, professional development, of the people 13 going through the process, but the kind of practical 14 experience that, yes, is provided in -- primarily in 15 our law schools by our clinical faculty, as well as 16 by the legal research or legal writing or whatever 17 that first-year initial training. I think that 18 ought to be viewed as an important type of 19 experiential education. 20 I am someone who's very, very concerned 21 about the cost of legal education, and I applaud 22 your focus and question number five on that issue. 23 I see daily its impact on our graduates who cannot 24 pursue the careers they might wish to. 25 What I simply suggest to you is that it's a 64 1 little bit of a -- well, the real cost, one can 2 argue, in law school is the tremendous amount of 3 resources that goes into producing scholarship that 4 is not of any direct relevant value to the students 5 who are receiving their professional education. 6 And, in fact, if you did get rid of the last year of 7 law school, which I think, you know, certainly 8 forcing the students to go through yet another year 9 of sitting in large classrooms reciting about 10 appellate cases doesn't necessarily strike me as 11 essential. 12 If you took the resources that would be 13 freed up by eliminating many, many faculty who do 14 only that type of work or else small seminars where 15 they have an even smaller student-faculty ratio than 16 you -- than the clinics do, and where the entire 17 work is focused on producing a paper, which is a 18 very valuable thing to do; it's just not something 19 that many lawyers spend much of their time doing. 20 If you took those resources that would be freed up, 21 you'd have a lot of resources to devote to, let's 22 say, a final year of education, maybe not called law 23 school, as such, but as another profession where 24 people are engaged in training and professional 25 development. And that's just an example. 65 1 In terms of innovation, we've heard a lot 2 about innovation. I could only ask the committee to 3 focus on where has the nonLangdellian approaches to 4 legal education, where have they come from? Have 5 they come from we think primarily from deans? That 6 has not been my experience or what I have observed. 7 Actually, what can I do again that clinicians and 8 the legal writing teachers have done a tremendous 9 amount to change, develop, to open up and to bring 10 the law students out into the community and bring 11 the community into the law school, and they're a 12 much greater source for the most part of innovation 13 than the rest of the traditional law school faculty. 14 So I hope that you will engage in this 15 process, not simply listen to rhetoric and take 16 it -- I'm sure you won't, take it at its face value 17 without stopping to think about what is really going 18 on here. What is the actual phenomena that we're 19 confronting here? What is the real problem with 20 legal education in this country? Is it that there's 21 insufficient quality control? I find it so hard to 22 believe that anybody can assert that. 23 Last comment, two last comments. One is 24 that I thought that going on a site inspection was 25 incredibly interesting, very exhausting, and very, 66 1 in some ways, overwhelming, but a terrific 2 experience, and I can't imagine anyone who's 3 seriously interested in education not wanting to 4 find out, to get a window, a picture, into another 5 law school's operation that you couldn't get any 6 other way. And it's an education for every faculty 7 member who participates. I don't think you have to 8 worry about that part of the process as much as has 9 perhaps been suggested. 10 I just want to make one comment about what 11 has been earlier mentioned, the decision to find in 12 compliance with 405(c) the one-year contract because 13 there existed in the institution a so-called 14 regulatory freedom review committee that could 15 rectify any problems that might occur. 16 I don't know whether any of you practice or 17 have practiced in the employment law area. I have. 18 And I also have myself been fired from an 19 institution. And in those circumstances, I had the 20 best of all possible worlds. I had an entire 21 faculty to a person that rallied around me and 22 brought a lawsuit, and for the first time in New 23 York State history, I was actually restored to my 24 position by the appellate division. So I guess it 25 was as good an experience as you can have in that 67 1 context. 2 But I want to tell you, there is no 3 comparison between some sort of after-the-fact 4 remedy -- if somebody has been fired unjustly and 5 wrongfully because that person is trying to engage 6 in the kind of independent work that many clinicians 7 do and have in the process angered some funder or 8 some powerful person or some dean, it would be no, 9 no substitute, no alternative, even if it worked, to 10 have some after-the-fact resolution from a 11 university committee, and I hope you will keep that 12 in mind as you consider the choices before you. 13 Thank you very much. 14 MS. SCHNEIDER: Thank you. 15 Any questions? 16 I do not have anymore names, so if 17 anyone -- we have a couple of minutes left if anyone 18 wants to speak we will manage to -- 19 Len Strickman in the back. 20 MR. STRICKMAN: Thank you. I am Len 21 Strickman. I'm from the Florida International 22 University College of Law. My resume is something 23 like Rick's except I've done more years in legal 24 education, more years as a dean, more site visits, 25 and one of the things I have associated myself with 68 1 what Rick Matasar has said and indeed what the last 2 speaker said, the site visit process is a terrific 3 process that I think somehow has gotten a little bit 4 too sanitized over recent years. We can separate 5 aspiration from accreditation standards for minimum 6 quality. 7 I have been a dean -- two of my 8 accreditationships have been at start-up law 9 schools. I've probably been visited as many times 10 by site visit teams as I have gone on site visits 11 and chaired site visit teams, and I have never been 12 on a site visit team from which I have not learned a 13 great deal. I've been at great law schools and I've 14 been at not-so-great law schools and, yes, I've 15 learned something every time about how I can improve 16 my own institution. 17 By the same token, I have been helped 18 enormously, not in complying with the standards, but 19 in having a better law school by the teams that have 20 visited my schools. And I think it's okay for the 21 accreditation process to go beyond the minimum 22 standards as a consultative process rather than as 23 an evaluative process, but I do think it's very 24 important that as an evaluative process, the 25 standards are the standards and, yes, they should 69 1 apply to all institutions. 2 I thought I might be able to save this for 3 the next hearing but, in fact, when you meet in 4 February, I'm otherwise engaged, even though you're 5 meeting in Miami. So I'd like to take a crack at a 6 number of questions here -- and try to be brief 7 about it -- that have been posed by the Task Force 8 as general questions to be answered. 9 The first is multiple missions. Well, of 10 course schools should have missions beyond those 11 that are articulated in the standards. Should they 12 be judged against those missions? Only in one 13 respect, and that's the respect of consumer 14 protection. If they state the mission and they are 15 not striving to achieve the mission, then they are 16 misrepresenting themselves to students and they 17 ought to be called on it. Other than that, no, 18 whether I'm delivering a public service as long 19 as -- on my public service mission, as long as I'm 20 trying, working to deliver on my public service 21 mission, that ought to end the inquiry for the 22 accreditation committee and for the standards. 23 The second one relates to the inputs and 24 outputs. We've talked about it already. Clearly, 25 that has to be constant reexamination because we 70 1 need some of each. I mean, some of the best 2 measures are output measures. There's no question. 3 I mean, a law school whose students are passing the 4 bar at a terrible rate has to be called to account 5 for that -- and, you know, as the classic output 6 measure. 7 On the other hand, there are input measures 8 that are important. A law school -- and some of 9 those input measures relate to academic community, 10 relate to the way in which law students learn, the 11 way in which law students relate to faculty and 12 relate to one other. It's very complicated, and it 13 seems to me it's more than continuing review. 14 Transparency. It's easy to say what's 15 totally transparent. The problem in the real world 16 is that when some negative judgments are being made 17 about a school, when a school is going through 18 problems, it is so easy for its competitors and 19 others to pounce on that school and to make and -- 20 because of that transparency, to kick and even kill 21 a school that is absolutely worth salvaging. 22 So I'm not quite as comfortable as others 23 in simply moving forward and saying everything 24 should be transparent. I think we have to think 25 about that carefully. I haven't thought about it 71 1 carefully enough to have very strong suggestions. 2 I think more transparency is probably a 3 good thing. The reason it's a good thing is to give 4 more consistency to the application of standards by 5 the accreditation committee particularly, and if 6 there's that measure of transparency, then the 7 process is well served. There has to be some common 8 law, and to the extent that there's some common law, 9 everybody ought to know about it. It shouldn't be a 10 surprise. 11 The next question is about aspirations and 12 that's something like about missions. I think it's 13 the same. Everybody should have high aspirations. 14 The standards aren't about aspirations; the 15 standards are about sound legal education, about 16 performance, about -- about meeting the minimums 17 that are created. 18 Costs. I do think in writing the 19 standards, costs have to be taken into account. I 20 think it's one thing to say that the law school 21 should be taught in contiguous space, that it should 22 be distributed across the university, because I 23 think we can provide very good reasons why law 24 students and law faculty ought to have an academic 25 community. 72 1 That's very different from what those 2 facilities look like. What's in -- yeah, and it's 3 nice, again, to have the Ritz. But it's okay to 4 have the Motel 6 because people can interact with 5 each other in a lesser facility and still achieve 6 the academic community and the kind of learning 7 interactions that are important to educating good 8 lawyers. 9 The types of practice question. I think 10 it -- can you mold the standards to where one 11 school's graduates are going to practice and where 12 another's are going to practice? I think the answer 13 to that question is no. 14 I think to attempt to bury the standards -- 15 I think a school should be congratulated on trying 16 to meet a particular set of needs for -- because 17 more of the students are going into government work 18 or going into solo practice. I think we have 19 responsibilities to that. But should a small rural 20 school have to do more than the Harvard Law School 21 does with respect to solo practice? I don't think 22 that's the way to apply the accreditation standards. 23 And I guess I'll repeat -- it's the last 24 thing I'll say -- I do think it's important to apply 25 a uniform set of criteria to schools. The finest 73 1 schools that get easily accredited every time still 2 benefit from every seven years having to go through 3 a full process of inspection. 4 Some of the site visits that I chaired from 5 outstanding law schools like NYU -- and we put a 6 bunch of criticisms into that report, and there were 7 criticisms that of course does not require any 8 reports back, but they were aspirational. NYU was 9 held to the same set of criteria as everybody else. 10 They had the self-study -- they had to do the 11 self-study; they had to do the self examination. 12 I think that's fine, and I think we all 13 ought to live by the same set of rules in that 14 respect. But I do think the process -- I don't 15 think we ought to minimize the value that we have in 16 the process now. I do associate myself with a great 17 deal of what David Van Zandt said, but I think it's 18 a different set of questions that becomes more 19 particular with respect to the substance of the 20 standards, and I hope, I know that this Task Force 21 is going to review the substance of the standards, 22 and I hope we have a good dialogue on those as well. 23 Thank you. 24 MS. SCHNEIDER: Any questions? All right. 25 So we've come at last to the end of our 74 1 time. I would ask if any of my colleagues on the 2 Task Force would choose to make a closing or 3 statement or raise anything? 4 Okay. A couple of things. I just would 5 like to remind you that our next hearing will be at 6 the Miami meeting. It will be on Friday afternoon. 7 It will be directly following the end of the deans' 8 workshop and in the same room as the deans' 9 workshop. I don't know the exact name of that room. 10 We appreciate the comments from everybody 11 who has testified today. We will remind you to 12 please submit your comments in writing. One thing 13 that occurred to me as we've had this discussion 14 today, particularly our focus on the standards of 15 other entities, is I would ask you to think about a 16 little bit because one of the things we're talking 17 about at the committee level is, you know, not all 18 professions have another hurdle after you finish 19 school in order for you to be able to pursue your 20 profession. Medicine and law are the two 21 professions basically that do. So, yeah, okay. In 22 any case, there are different degrees, I should say. 23 I would not represent the District of Columbia if 24 you were not a member of the bar, but you might be 25 if you were an accountant be able to do some 75 1 accounting work if you had not passed various levels 2 of the account levels exam. 3 In any case, I would ask you to sort of 4 think about this in your discussion about standards 5 is the extent to which there is this additional 6 hurdle that you have to get over, whether that makes 7 a difference in how you would get output sources. 8 That's just something to throw out there. 9 I thank all of you for coming and I 10 appreciate your comments and we hope to hear more 11 from you. 12 Thank you. 13 (Ending time: 3:18 p.m.) 14 15 16 17 18 19 20 21 22 23 24 25 76 1 UNITED STATES OF AMERICA ) 2 ss: 3 DISTRICT OF COLUMBIA ) 4 I, GERCHA RICHARDS WHITE, a Notary Public 5 within and for the District of Columbia, do hereby 6 certify that the witness whose deposition is 7 hereinbefore set forth was duly sworn and that the 8 within transcript is a true record of the testimony 9 given by such witness. 10 I further certify that I am not related to 11 any of the parties to this action by blood or 12 marriage and that I am in no way interested in the 13 outcome of this matter. 14 IN WITNESS WHEREOF, I have hereunto set my 15 hand this 12th day of January, 2007. 16 17 18 _____________________ 19 GERCHA RICHARDS WHITE 20 21 My Commission Expires: 22 September 1, 2010 23 24 25 77 1 2 3 4 5 6 7 8 9 10 11 12