From The Chronicle of Higher Education
Academic Freedom Comes Under Fire at Law-School Clinics
Many faculty members at law-school clinics feel pressure from their bosses to steer clear of cases that might incur the displeasure of donors, lawmakers, or others who could complicate life for their institutions, the results of a recent survey suggest.
The survey of about 300 faculty members at law-school clinics found that nearly 10 percent reported having been urged by their law school's dean to avoid a particular case, and nearly 15 percent report having been urged by their clinic's director to avoid one. The survey, conducted by an associate dean at the University of Michigan Law School, was discussed at a conference on academic freedom held last week by the American Association of University Professors.
Faculty members were not asked why they had been urged to avoid cases, leaving open the possibility that in some situations their bosses were motivated purely by educational or financial concerns. And most respondents did not report any interference.
Yet responses to other survey questions suggest that worries about political repercussions could play a role in decisions to shy away from certain cases. Well over half of the respondents characterized their law school's dean as at least somewhat concerned with how their cases would be viewed by alumni or potential donors, and more than a fourth described their deans as caring at least somewhat about how cases are perceived by politicians, state courts, their state's bar association, and groups representing businesses or other interests.
The survey was done last year by Bridget M. McCormack, associate dean for clinical affairs at the University of Michigan Law School and a co-chair of an Association of American Law Schools panel focused on political interference in law-school clinics. Ms. McCormack has not formally published her findings, but they have been circulated among legal educators and were made available to The Chronicle.
The survey's results shed new light on the long-running debate over the proper role of law-school clinics and the question of how much freedom their faculty members have — or should have — in their work, which often involves providing legal representation to the indigent.
Robert R. Kuehn, a professor of law at the University of Alabama and co-chair of the law-schools association's panel on political interference at clinics, said the survey's findings also serve as a caution to other academic fields that have increasingly sought to provide students with real-world experiences. "We may see more of these efforts to restrict the way students learn and what they are learning," he predicted.
Other experts on legal education argued, however, that law-clinic administrators are wise to consider the political repercussions of their clinics' work because they could end up hurting their programs and students if they fail to do so.
Kim Diana Connolly, president of the Clinical Legal Education Association and an associate professor at the University of South Carolina School of Law, said clinic administrators need to be able to take the political environments they are working in into account. "What might be a good decision for me would not be a good decision in other settings," she said.
Behind Closed Doors
Efforts by outsiders to restrict the work of law clinics have often attracted considerable attention, in large part because they have taken place in the public arena, in the form of legislation or litigation. In the late 1990s, for example, Louisiana officials, angered by a Tulane University environmental-law clinic's representation of opponents of a new factory, fought in state court, with considerable success, to limit the scope of law clinics' work. And just this month, a New Jersey mall developer tried to use a state open-records law to force a Rutgers University environmental-law clinic to give up documents connected with its representation of mall opponents.
Little attention, however, has been given to restrictions quietly imposed on the work of law clinics by their own administrators.
In addition to determining that a share of law-school-clinic administrators worry about political repercussions of certain cases and urge faculty members not to take them, Ms. McCormack's survey found that at many such clinics administrators weigh in on case selection as a matter of course, and at least a few have urged faculty members to avoid press coverage of one of their cases.
It is unclear whether such interference is becoming more or less common. Roy T. Stuckey, a retired professor from the law school at the University of South Carolina who has studied clinical legal education, said he suspected that "it is more of a problem now than it used to be" because "these schools are much more dependent on keeping donors happy than they once were."
Mr. Kuehn says the motives for interference in the work of law-clinic faculty members have evolved over time.
Like the earliest reported case — the 1968 firing of two clinical-law professors by a dean unhappy that they had taken on a school-desegregation lawsuit — most of the earlier challenges appeared driven by political or ideological concerns. More recently, he says, they have been driven by financial interests, often taking the form of business groups trying to keep environmental-law clinics from opposing their activities.
The glass-half-full take on Ms. McCormack's findings is that most faculty members at law clinics do not report interference.
Moreover, some have had their institutions' backing in the face of considerable outside pressure. Hofstra University, for example, stood behind its clinic's decision to press a housing-discrimination lawsuit against a local apartment complex whose owner was a member of Hofstra's board and had threatened to both resign from his board seat and withdraw a $1-million pledge unless the case was dropped.
Mr. Kuehn said, however, that he believed clinical faculty members did not need to be asked to drop a case to feel under the gun to do so. Just being asked by a dean to explain their decision to take on a case "can be perceived as pressure, particularly by junior faculty or those serving at the dean's pleasure," he said.
Richard A. Matasar, dean of the New York Law School and president of the American Law Deans Association, said that he personally saw law clinics' case selections as involving "many shades of gray," and that he thought administrators were justified in discouraging faculty members from taking a case if another with less potential political fallout offered the same teaching opportunities.
"Judgment is always an important part of these discussions," he said. "For me, the tiebreaker always is: What is the best vehicle for teaching what we have to teach the students?"
http://chronicle.com
Section: The Faculty
Please note that my quote is out of context. What I was explaining to the reporter in a very lengthy discussion, among many other things, was that clinic TEACHERS need to be able to make their own decisions...at no time did I indicate that administrators had a role in decisions. I am not alarmed by the quote itself "What might be a good decision for me would not be a good decision in other settings..." but by the explanation of what it means, which is dead wrong. My point was that the decision to take a case should be left to the clinician.
Moreover, I gave many other good soundbites that should have been picked up...but reporters are supposed to show "sides" of a story, I guess, so my agreeing with others just wasn't worthy of coverage. Sigh.
Posted by: Kim Diana Connolly | July 07, 2009 at 04:15 AM