By Kuehn, Robert R.; Joy, Peter A.
Academe , Vol. 96, No. 6
This year, across the nation, state legislators and powerful corporate interests with financial ties to universities and influence over them have launched an unprecedented number of attacks on law school clinics.
As universities increasingly seek to educate students through service-learning courses, law school clinics may be the bellwether for determining whether the faculty's academic freedom in teaching will transcend the traditional classroom or be left at the classroom door. Recent legislative and corporate efforts to interfere in the operations of law clinics indicate that academic freedom is at risk when hands-on student learning bumps up against "real-world" disputes.
In spring 2010, a law-clinic lawsuit against a $4 billion poultry company triggered a legislative effort to withhold state funds from the University of Maryland unless its law school provided the legislature with sensitive information about clinic clients and case activities. While the threat of cuts was finally withdrawn, one legislator boasted that the university now knows "we'll be watching" if it takes on other business interests favored by politicians. And in Louisiana, when Tulane University this spring refused to drop an academic program that sometimes represents citizens challenging petrochemical-industry environmental permits, the industry developed an eleven-point plan, in the words of its spokesperson, to "kneecap" the university financially. The attack plan included the introduction of legislation that would forfeit all state funding if a university offered certain types of law-clinic courses.
The AAUP has recognized potential threats to academic freedom in teaching since its founding. The 1915 Declaration of Principles on Academic Freedom and Academic Tenure identifies the "special dangers to freedom of teaching," referring to "the danger of restrictions upon the expression of opinions which point toward extensive social innovations, or call in question the moral legitimacy or social expediency of economic conditions or commercial practices in which large vested interests are involved." The 1940 Statement of Principles on Academic Freedom and Tenure notes that academic freedom in teaching is "fundamental for the protection of the rights of the teacher in teaching and of the student to freedom in learning." And, in 2007, the AAUP released Freedom in the Classroom, a report that responded to legislative attempts, more frequent after September 11, 2001, to monitor what faculty members teach. Yet, as teaching moves increasingly into the real world, respect for the faculty's expertise and even the university's freedom to control the curriculum are being challenged. One Maryland legislator likened the recent attacks on law clinics to politicians "going into somebody's class and trying to change their syllabus."
Clinical Legal Education and Service Learning
To understand why attacks on law school clinics are a harbinger of threats to academic freedom when teaching moves outside the classroom, it is important to understand the role of clinical legal education in American law schools and as part of the servicelearning movement in higher education.
Clinical legal education is similar to the internship programs of medical schools. Like medical students working inside the hospital with patients, students in law school clinics have the opportunity to learn by doing: they practice law and solve client problems through the actual representation of clients under the close supervision of law faculty. Legal commentators, lawyers, and judges all agree that clinical legal education is the best way to teach lawyering skills and professional judgment, because students are able to act as lawyers for real clients and benefit from faculty supervisors who help students develop their capacities to reflect upon professional conduct through the use of self-critique and feedback. Law faculty receive course-load teaching credit for clinical courses, and students receive academic credit for learning the skills and professional values necessary to become ethical, effective lawyers. …