In this episode, host Gwyneth Shaw talks with a stellar group of clinical legal educators from across the country:
- Praveen Kosuri, Practice Professor of Law and Director of the Entrepreneurship Legal Clinic at Penn Carey Law School
- Beth Lyon, Clinical Professor of Law, Associate Dean for Experiential Education, and Clinical Program Director at Cornell Law School
- Robin Walker Sterling, Clinical Professor of Law, Associate Dean for Clinical Education, and Director of Bluhm Legal Clinic at Northwestern Pritzer School of Law
- Ty Alper, Berkeley Law Clinical Professor and Clinical Program Co-Faculty Director
- Berkeley Law Assistant Dean for Clinical Education Laura Riley
With Georgetown Law Professor Alicia Plerhoples, the group recently co-authored an article, “Holding The Line On Academic Freedom In Law School Clinics,” which will be published later this year in the Journal of Legal Education. Analyzing clinical faculty’s unique role at the intersection of legal practice and academic instruction, they discuss how the current political environment has a particular impact on clinicians’ academic freedom primarily as it relates to case and client selection. Their survey of academic freedom norms at 15 leading law schools and their review of professional standards governing clinic representation informs their conclusions about the critical importance of academic freedom protections for law faculty engaged in the supervision of clinical students.
About:
“Berkeley Law Voices Carry” is a podcast hosted by Gwyneth Shaw about how the school’s faculty, students, and staff are making an impact — in California, across the country, and around the world — through pathbreaking scholarship, hands-on legal training, and advocacy.
Episode Transcript
[MUSIC]
[GWYNETH SHAW]
Hi, listeners. I’m Gwyneth Shaw, and this is Berkeley Law Voices Carry, a podcast about how our faculty, students, and staff are making an impact through pathbreaking scholarship, hands-on legal training, and advocacy In this episode, I’m joined by a stellar group of clinical legal educators from across the country. Praveen Kasuri, practice professor of law and director of the Entrepreneurship Legal Clinic at Penn Carey Law School.
Beth Lyon, associate dean for experiential education, clinical professor of law, and clinical program director at Cornell Law School. Robin Walker Sterling, clinical professor of law, associate dean for clinical education, and director of the Blum Legal Clinic at Northwestern Pritzker School of Law. Also with me are two leaders from Berkeley Law, clinical professor and clinical program co-faculty director, Ty Alper, and assistant dean for clinical education, Laura Riley The group recently co-authored an article, Holding the Line on Academic Freedom in Law School Clinics, which they presented at the Association of American Law Schools annual Clinical Education Conference.
Analyzing clinical faculty’s unique role at the intersection of legal practice and academic instruction, they discuss how the current political environment has a particular impact on clinicians. They also interviewed 15 law school clinicians and used their comments about how clinics are actually working to draw additional conclusions. Thanks so much for being here, everyone.
[GWYNETH SHAW]
Given the size and expertise of this amazing group, let’s get right to it. What moved you to take on this study, and what have you seen in your own clinics?
[TY ALPER]
Thanks, Gwyneth. So there’s a long history of political interference and attempted interference in the work of law school clinical programs for reasons I’m sure we’ll get into. We’re a group of colleagues who lead clinical programs at different law schools in different states, but we looked around in the past year, and what we saw was something that was of a much greater magnitude than what we’ve seen before.
We saw an increasingly authoritarian government threatening to use unprecedented and Often illegal levers to threaten academic institutions with the loss of hundreds of millions of dollars. This wasn’t just one angry donor, which is sometimes enough to lead to interference. This was interference and threatened interference on an existential level.
And we saw the threat of that interference to the academic freedom of clinical programs representing unpopular clients. And because of the stakes and the huge amounts of money involved, we also sort of foresaw anticipatory compliance from our institutions that we wanted to get out ahead of. We saw deans and general counsels making noises about reviewing clinic case selection, encouraging or forcing clinics not to take on or even to drop unpopular clients and cases even before real threats materialized.
And we wanted to make the case both that law schools and universities need to stand firm, hold the line in defense of clinical faculty’s ability to choose cases and projects that align with their mission, and that doing so is important to protect the academic freedom of all faculty and And that’s critical to preserving the mission of the legal academy generally.
So that was the, I think that was the impetus for starting on this project.
[GWYNETH SHAW]
What does clinical education share with the traditional JD curriculum, and what’s different for those who aren’t initiated in this world?
[PRAVEEN KASURI]
Sure, I’ll take that. I think it’s important to recognize that both are part of the traditional law school curriculum. And so though each may have a different approach, they are both very much part of a student’s legal education.
They are courses that are taught by full-time faculty, that are graded, that every student expects to take when they enter law school I think that’s number one. Number two, just as a traditional podium professor exercises freedom to select a casebook or course materials, they decide what cases they’re going to teach. Similarly, a clinical professor relies on the exact same norms to select clients and cases and the pedagogical sort of matters that they’re going to use to teach.
And so those are very similar in practice in terms of how we think about that stuff as faculty members. I think a third way that they are similar is when we hire faculty in law schools, the processes are very similar, right? So the entire faculty Basically weighs in on candidates.
They meet the candidates, they have an opportunity to speak with them. They hear them present on their plans for when they join a faculty and what their approach may be. And so there’s a lot of pre-vetting that occurs before we even hire any faculty member.
And then there’s ongoing sort of opportunities to continue to vet and review Faculty members, and that typically happens when a candidate or when a faculty member is up for promotion, right? On the tenure track, it would be maybe a tenure promotion or a promotion to a full tenured position. But similarly for clinical faculty, even if you’re in a place that doesn’t have unitary tenure and maybe you’re on a long-term contract, there’s that same opportunity for a promotional review.
And so the vetting systems that are in place are very, very similar on both sides. And then I think finally, and this is to me maybe the most important thing both models aim to teach students how to analyze complex legal landscapes, how to parse ambiguity, and how to master the fundamental art of thinking like a lawyer, right? So at the end of the day, all of us have the exact same mission, which is to best educate our students for a postgraduate world of legal practice.
And so I think all those things that are shared sides of the curriculum What sets us apart, right? What makes us a little bit different? I think, you know, traditional courses rely heavily on static casebooks and historic texts.
And in a clinic, the active case, the case that the student is handling is the textbook, right? Meaning that students are learning to think like lawyers by actively practicing as lawyers And obviously they do that under close supervision by us, the faculty.
But that active case, almost by definition, is less structured, it’s messy, it’s unpredictable, and most of the time has an adversary on the other side, and it’s real. And that’s very different than the old-school traditional big lecture class. I think the way that we as faculty are regulated is also pretty different, right?
So yes, we are faculty members and we conscribe to all the same rules that all the faculty do. But We are also practicing lawyers, right? And so we operate under professional responsibility rules that every lawyer in our state or states have to operate under.
We have to conscribe to student practice rules that are implemented usually by the Supreme Court in a state that tell us what students can or cannot do in particular forums. And then, of course, we operate under the ABA accreditation standards. And so the regulatory frameworks that we operate under are a little bit different.
Maybe obvious to some, but maybe not to others, is that, again, as practicing lawyers and as representatives of clients, everything that we do with our cases is confidential. Right? So once we engage in a representation, all of that stuff is confidential, and we can’t talk about it the same way that other faculty members can talk about their subject matters.
And so that is sometimes foreign to others. But obviously that’s sacrosanct to what we do, is that confidentiality and privilege bubble And then, and I think that leads the real world aspect of clinical teaching makes us more susceptible to outside threats, right?
To threats of defunding or political retaliation or any kind of interference, right? Because we’re representing marginalized, underrepresented, unpopular clients oftentimes against Big institutions or big corporate interests. We’re taking on clients and taking on issues that, I think sometimes are more aligned with our institution’s leadership because again, these are big institutions and they’re a little bit, they interact with a lot of those entities.
And so sometimes we’re taking on those entities and that creates a vulnerability that I think is sometimes exacerbated by the fact that we as clinical faculty often aren’t protected the same way in terms of job security as tenured faculty, or at least to the outside world it might appear that way. Those are some of the ways I think that we’re similar and different.
[GWYNETH SHAW]
To kind of expand on that, you just touched on it at the end of your answer, is clinical education more vulnerable to some of these political winds that Ty talked about, some of the things that we’re seeing in the past year in terms of pressure on academic institutions?
[ROBIN WALKER STERLING]
Yeah. I would say that it is, and I think that it is for at least three main reasons. The first one being part of what Praveen just said, is that it’s very public, it’s very high profile, right?
So people are more likely to hear about clinic cases and have strong opinions about what they perceive as representation of controversial clients. And the fact of it is that clinics have a long and A pretty storied history of representing controversial clients. I mean, we were, the whole sort of apparatus of clinical legal education really stemmed from movement in the ’60s and that sort of national zeitgeist that law schools felt like they needed to heed the call of and step in to try and address the access to justice gap.
And so that means that we end up representing Marginalized people who, and we’re often the lawyers of last resort. Often if we don’t take these cases, no one will. People who are the victims of wrongful conviction or people suing prisons for conditions of confinement or protesters or community activists, right?
All of these can be sort of third rail issues, and clinics across the country sort of just normally work in these areas. And so that’s one big reason, I think it’s because the work that we take on is often controversial The second reason is because schools, but by our definition, we work in the public good educating the next generations of lawyers, and the web of ways that schools rely on relationships with so many interests, with state governmental interests, local governmental interests, corporate interests, alumni, donors, foundations, right?
There are so many potential stakeholders with opinions about all sorts of things that the wrong political case can tug on any one of the strands of that web, and suddenly you’re in a world of hurt, and you’re sort of risking negative attention that can translate into Interference case selection. And then the last point is, I’ll augment something that Praveen said, which was about status issues. I think in most places, clinical faculty don’t have the same kind of job protection as research faculty or tenured faculty.
And I think that there is sort of attendant to that this sort of pernicious idea that we don’t have as much protection in other ways too, like academic freedom you know, there was more of an idea that, well, it’s just the clinic. just tell them not to take the case, or tell them to withdraw from the case, or make them withdraw from the case, right? And so that also makes us more vulnerable to this kind of interference in particular.
[GWYNETH SHAW]
And of course, the concept of academic freedom itself is sort of a blurry line everywhere, so I’m sure it’s further complicated in the situation you just described. How do these obligations to clients complicate the interface with your institution? Like both of you have said, you’ve got an obligation to your client that in some ways trumps your obligation to your institution.
How does that work and where are some places where that can be difficult or challenging?
[TY ALPER]
It can be hard when we’re engaging with administrators who are not themselves lawyers. As clinicians, I think we’re used to having to explain what we do historically to justify the expense of an educational model that relies on low faculty-student ratios. But what we’re talking about here is really more than More than just budget justifications with our law school deans, it’s we and our colleagues have found ourselves having to explain and justify some of the things that Praveen was talking about to administrators at higher levels who are not themselves lawyers, and don’t necessarily understand the ethical rules around client selection or termination of representation of a client, for example.
So there’s really some educating that has to happen. This is true, I think it’s true even in discussions with university general counsel, who should know better, but they’re answering to And formally representing sometimes a board of trustees that doesn’t understand or frankly care about a lawyer’s obligation to a client. What they see is what Robin was describing.
They see this clinic is representing an unpopular client, and we could be next on the governor’s—on the government’s target list because of it. So I think it’s always been an awkward fit to have these fully functioning law firms housed inside academic institutions and the challenge of squaring client representation and all that that entails with the realities of an increasingly politicized bureaucracy That’s really hard, and that’s partly why we embarked on this project that we hope will have somewhat of an educating effect
[ROBIN WALKER STERLING]
And if I could just add a couple of things. One of the particular misconceptions that’s particularly difficult is that people, even though the rules of professional conduct are very clear that When you represent a client, that’s not an expression of your own personal endorsement of the client or their actions or their decisions or their political viewpoint. People mistake that all the time, and so they just sort of don’t understand, right?
We’re representing these protesters. That doesn’t mean that- We agree with them or that we don’t agree with them, but we’re representing them to vindicate some sort of legal issue.
So that’s certainly one part of the misconception that gets thorny, right? People start to worry that the representation of this case has more meaning or is more meaningful about the stance of the university or of the law school than is actually true. And the other point I would like to make about working with clients is it’s always a difficult balance to balance the student’s educational experience and the client’s Vindicating the client’s interest, right?
That, that’s part of why clinical professors, that’s one of the things that we care about most. And so, but for other people who are non-lawyers, serving the client’s interest is just not part of their equation, but it’s a crucial part of ours
[GWYNETH SHAW]
One of the things about the study is that you did a number of interviews with current clinicians, people who are doing this work all the time, just like you are. What are some of the things that they told you? What are things that surprised you from those interviews?
[LAURA RILEY]
Yeah. Well, you mentioned sort of at the beginning that we talked to 15 different clinic deans and directors, which is a relatively small sample size, but they really did represent a diverse group of schools, so public schools, private schools, religious schools, of different sizes. And I think what was somewhat surprising is just how aligned the schools were-
In sort of speaking to who does have the authority when selecting cases and clients, which is, you know, a real compliant, core component of academic freedom for clinics, but also sort of how the pedagogy evolves and who sets the pedagogical structure for the course of a clinic. And it was just slightly surprising because of sort of Like others were saying, the precarity of some clinical faculty members’ positions within law schools because of the increase in threats. I think some of us wondered if there might be more divergence, but there wasn’t.
And so I think that alignment to sort of this adherence to professional responsibilities of practicing attorneys, as well as sort of the taking seriously of the pedagogical mission of clinics as well I think another thing that was somewhat surprising is that four of those clinics had ethics council that was inside the privilege bubble of the clinic itself. And I wonder if that will increase as threats continue to bubble up, because that seems like a really valuable resource so that the clinic deans and directors, and even individual clinicians within a program can have as a resource to sort of consult on some of these thorny issues if and when they do come up. So those were a couple of things that I think stood out
[GWYNETH SHAW]
I mentioned it in the intro that, that you recently presented this work at the ALS Clinical Education Conference. Did that start new conversations in that room that day or since then?
[BETH LYON]
It has been really gratifying the level of interest that we’ve had in the article, and really we’ve been focused on just trying to get it out there, present when we’re asked to present. We still have more presentations coming up. And one of the exciting new conversations actually came up when we presented it as a draft last fall Because one of our moderators was the leader of the Clinical Legal Education Association, or CLEA, and CLEA is sort of the advocacy arm of the clinical community.
So as a result of that conversation last month, CLEA actually launched its first academic freedom survey, and this is the first time most of these issues have really been tracked across the country. And the survey is really exciting because it broadens our results to, you know, sort of all the entire legal academy, so touching more law schools than we had time to do, and also institutionally sort of ensuring that this data collection is going to continue. So I think we all feel really proud and excited that this idea that we launched is really being carried forward.
[PRAVEEN KOSURI]
When we presented this at the ALS Clinical Conference, I think one of the things that was really interesting and exciting, I think for us, was in the room where we presented this, we broke out into small groups, and so there were, I don’t know, six or seven different groups that were talking about how they would strategize A defense to some sort of outside interference or internal interference that they might encounter in the future. And I think when we started this project, that was really one of our fundamental goals, was like, you want to start thinking about this stuff before you’re confronted with an actual crisis, and how do we get people to do that, and how do we, how do we develop something that would be helpful to folks Again, before they actually face a crisis. And so at that meeting, at that conference in particular, we had designed our presentation so that people had an opportunity to start thinking about that stuff proactively.
And that to me was a really great outcome from all of this, and hopefully those kinds of conversations continue, and it’s not something you’re going to solve in 20 minutes at a clinical conference. But again, it gets people thinking about it proactively, and that really was one of our goals.
[GWYNETH SHAW]
So what’s the next step for this work? It sounds like the CLIA survey may be a real, a real addition. What do you see kind of coming out of this in terms of the idea of maybe recommendations or some benchmarking rules or things like that? Is that in the mix with this?
[BETH LYON]
Yeah, I mean, we are hopeful that now, with the data being collected regularly by CLIA and with these broader results, we can compare that to what we learned about the 15 schools we looked at. And also, we might decide to go back and dig into some of the surprising findings that Laura mentioned. So I think we haven’t decided as a group what our next steps are.
[GWYNETH SHAW]
In general, what do you think law schools and universities can do to better cultivate and protect clinics? I know this is always a fight, as Ty said, with a budget committee or trying to keep resources. But in terms of protecting some of the things that you are worried about and that the folks you talked to are worried about, what can law schools and universities do?
[LAURA RILEY]
I think to be able to protect clinics, it starts with understanding what clinics do and what we do differently. And that sort of goes back to what Praveen was mentioning at the beginning, is that, you know, understanding that we operate as law firms within the university. So while we have some similarities as, you know, playing the role of a core curricular component of law students, we also have — We wear this total separate other hat as practicing attorneys And all that comes along with it.
So the professional responsibilities to the client that sort of have to be matched up with the curricular and pedagogical goals that we’re setting for the students. So understanding what responsibilities we have to fulfill can help, you know, general counsel’s office and law schools and universities partner with us if there are threats to what the clinic does. And I think both under having some openness to understanding what clinics do, and then willingness to partner with us if there is sort of a threat so that we can act in collaboration with groups within the university
[PRAVEEN KOSURI]
There’s another aspect of this which has more of an impact than even direct interference, and it’s basically the chilling effect of the threat of interference, right? And so, and this manifests in a couple of different ways. So one is if an administration expresses to a faculty, in, in our context, a clinical faculty, that they don’t want The clinical faculty or a clinic to draw the ire of somebody, some outside influence, then, and the way they communicate that is that if you draw the ire of this outside influence, I may be forced to take the side of that outside influencer and not have your back Then the result of that is that as a clinical faculty member, you’re trying to avoid that situation, right?
And so then you take actions that, again, are trying to avoid the interference, and that has a real chilling effect, right? That is, that impedes our freedom, right? That impedes our academic freedom.
It impedes our pedagogical choices. It impedes everything that we do, and it’s a really Difficult way to teach, right? To figure out what you’re gonna teach and how you’re gonna teach it, and you’re always looking over your shoulder to thinking about is this gonna be okay?
Is someone gonna get mad? And so that chilling effect is another Piece that I think can be managed differently, where administrations can be pretty, can be more clear about what their stance would be in a situation like that, and that they firmly have the back of the professor, and that, “Hey, what you do in your classroom is protected by academic freedom,” and conveying that in written policies, in verbal statements. Those are things that I think could go a long way to assuaging some of those Sort of chilling factors.
But that’s to me one aspect of this that, that has a very long tail that is a little bit independent of a direct interference.
[TY ALPER]
And I think too, when there is particularly when there is direct interference, what we’ve seen in the example, and this is one thing that we’ve talked about a little bit, you know, what we’ve seen with the law firms who have been targeted by the federal government, the ones that held the line and sort of banded together to do that Ended up prevailing and sort of beating back the attempt at authoritarian interference. And so I think our hope is that, and Laura mentioned this too, but the sticking together and the collaborating and standing together, sharing resources on how best to educate, you know, the administrators and general counsels who have the ability to kind of be the instruments of this interference. The hope is that we can help, you know, help folks, help our colleagues stand together because that
And again, I think we saw it with the law firms that has proven to be a really critical component of beating back this interference.
[BETH LYON]
And I just want to add to that, you know, this is part of wearing our teaching hat, even because most of us are sending a lot of our students into big law, and some of them are going into these settings where now they’re worried about what pro bono cases they take or what they even express in the workplace. And so, you know, some of us including one of the students at Berkeley, we’ve had some teaching or some research assistants that have been helping us with the piece, and they’re so excited and they’re so proud to be assisting on this piece. And, you know, I sort of hope that we’re giving them the strength as they carry forward in their careers in this, you know, time of really enormous pressure on the profession.
[ROBIN WALKER STERLING]
Now that we’ve seen how sort of ramped up Things can get and how quickly those situations can evolve. I mean, it’s really like being in the center of a tornado. One of the main things that we do wanna convey is that this is your opportunity now when you’re not in the eye of the storm to really, really think through all of these steps with all of the actors, all of the stakeholders, with your law school dean, with your university leadership, with your general counsel’s office.
Now is the time to work through all those things and to give everybody the arguments that they need so that when the interference happens, everybody is equally And well-armed. And those are conversations that should be happening with the clinic in the room, right? As a full participant in those conversations.
And they should be happening with sort of full understanding and respect for the work that the clinic contributes to the law school’s educational enterprise. And so I can condense all that to, if you stay ready, you won’t have to get ready. And so that’s really one of the big motivators for this piece too, is to help everybody Get to a place where they just can stay ready.
[GWYNETH SHAW]
Well, thank you all so much for joining me for this great conversation. And thank you, listeners. To learn more about my guests and their research, please check out the show notes.
If you enjoyed this episode, please share it. And be sure to subscribe to Voices Carry wherever you get your podcasts. Until next time, I’m Gwyneth Shaw.
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