By Dale Whitman
My friends, I am pleased to have the opportunity to talk with you today about legal education and the Association?s work. I expect that many of you feel as I do ? that deciding to make your career in legal education was one of the wisest moves you ever made. We are incredibly fortunate to have the working conditions we enjoy: good colleagues, bright students, excellent relative compensation, and the opportunity to work on the topics that we consider to be of greatest importance. Few occupations can match that set of conditions. While we sometimes complain a bit, we ought to reflect on how blessed we really are.
A good deal of the credit for the progress legal education has made is owed to the Association?s superb staff. This year the Association will celebrate its 102nd birthday. While I?m reluctant to mention names for fear of omitting others who are equally deserving, I do want to pay special tribute to the Association?s Executive Director, Carl Monk, and to Associate Director Jane LaBarbera. Carl is now completing 10 years in his present capacity, and Jane has served for more than 20 years. Our Deputy Director position rotates every two years, and is currently held by Professor Veryl Miles of Catholic University. We have been remarkably fortunate to have the dedicated and loyal service of these talented people and their colleagues on the staff in Washington.
We have just completed a self-study of the Association that will be available for all of you to read. In my talk today, I want to cover two main topics. First, what has the Association done of importance over the past ten years, and what should it be doing in the future? Second, what has happened in legal education in the last decade, and what are its challenges for the near future?
Improving membership review. Let me begin with the Association. Most of you are familiar with the services it provides: the professional development workshops, the faculty directory, the annual faculty recruiting conference, and our participation with the ABA in the sabbatical inspection process. Several years ago, we made a conscious decision to drop the use of the term ?accreditation? in describing our involvement in the inspection of our member schools. The ?Accreditation Committee? became the ?Membership Review Committee,? and it began to shift from operating in a regulatory mode to a more cooperative, peer-review model. My sense is that this shift has been desirable, but has not gone far enough. I have appointed two special committees to examine whether we can make further movement in this direction. One of them, headed by our 2001 President, Mary Kay Kane, is developing a statement of the Association?s core values and reviewing our bylaws and regulations to see whether they are all necessary and relevant to those values. I hope that some simplification and reduction will result. The other special committee, headed by Associate Dean Allan Easley of Washburn Law School, is reviewing the way we communicate with schools that have experienced a sabbatical inspection. We?re hopeful that we can make those communications more useful and less prescriptive to our members.
None of this is to say that we will or should relax our standards in the areas of greatest importance. We are, after all, the learned society of legal education. Our standards have helped many law schools improve over the years, and have established a level of performance, higher in a number of ways than that required by the ABA, that our member schools can and should aspire to meet. It is still possible, in theory at least, for a member school to have sanctions imposed upon it ? even expulsion from the Association. But it has been more than a quarter of a century since we have imposed sanctions on any law school. We believe and hope that we are in the business of helping, not reprimanding, and we hope our member schools will continue to be responsive to our counsel, as they have nearly always been in the past. We want to continue to give law schools assistance and incentives to improve the education and scholarship they provide.
Sexual orientation nondiscrimination. I want to take a few minutes to tell you the story of the Association?s efforts in one particular dimension ? one that has consumed a good deal of our time and resources, but that I believe has had a very real and important positive impact on the way some of our students experience their legal education. In 1990 the AALS House of Representatives voted to include, for the first time, sexual orientation as a prohibited basis of discrimination in the treatment of faculty and students. Consistent with that decision, the Executive Committee amended our regulations to require that employers who use our placement facilities must also affirm that they don?t discriminate on the basis of sexual orientation.
I don?t think there?s any doubt that most law faculty and administrators believed that, in general, this step was the right thing to do. Some compared it to the Association?s leadership 40 years earlier in taking a position against racial discrimination at a time when there were no federal statutes and few state statutes prohibiting it.
But at the same time, our prohibition on discrimination based on sexual orientation raised two problems. The first was its impact on religiously-affiliated law schools ? particularly those related to religions that had strong doctrinal positions in opposition to homosexual conduct. Many of them were worried that the new bylaw would force them to choose between compliance with AALS standards and conformance with the teachings of their sponsoring churches. Very quickly a task force was created to consider ways of dealing with this incipient conflict. It was composed of representatives from the gay and lesbian community and from several of the religiously-affiliated law schools. Its recommendation was a compromise: religiously-affiliated schools could not discriminate on the basis of sexual orientation, but they would be permitted to discriminate on the basis of sexual conduct, to the extent that their sponsoring religions required.
This result did not please everyone on either side of the issue, but it provided a workable approach. Over time ? now nearly a decade ? our religiously-affiliated member schools gradually worked and reworked their own positions. The Association was not eager to reach an impasse with any school, and never did so. Through a patient process of communication and negotiation, these schools came into compliance, and they did so without causing a rupture with their sponsoring religions. There are still a few details to be worked out with a few schools, but I believe it is accurate to say that every religiously-affiliated law school in the Association is in fundamental compliance with our core nondiscrimination requirements. Along the way, these schools were required to think carefully ? in some cases, perhaps for the first time ? about the way they treated their gay and lesbian faculty and students. I believe those faculty members and students are treated more fairly and equitably today as a result.
The other major issue posed by our nondiscrimination requirement has proved to be more complex and less tractable ? the exclusion of the U.S. military services from recruiting students at our member schools. Because of its so-called ?don?t ask, don?t tell? policy, the military services obviously could not provide the affirmation of nondiscrimination that our regulations demanded in return for the use of our placement facilities. That meant they were excluded. Some people in legal education took the view that this was an unfortunate and undesirable result on its merits, since it obviously imposed an additional burden on law students who might be interested in military careers; they had to go to their university central placement office or some other location to meet with recruiters.
But irrespective of the merits of the policy, it produced a large and unwieldy political backlash. Law schools that were internally quite willing to exclude the military found themselves targets of a wide variety of outside forces. Various schools found themselves the object of insistence that they permit military recruitment within their walls by university provosts, general counsels, presidents, boards of trustees, governors, and state legislatures. This insistence took a multitude of forms, and in some cases may have been instigated by law schools themselves. The Association?s Executive Committee found itself picking its way through this barrage of objections to its policy. In cases in which it believed that the objections were genuine and beyond the law schools? control, it in effect granted waivers, but when doing so required that the school in question, upon allowing military use of its placement facilities, engage in other activities that would ?ameliorate? the message sent by the military?s presence.
Over time, a good deal of ?common law? developed within the Executive Committee about what sorts of ?higher authority? objections would warrant it in granting a waiver, and what sorts of ?ameliorative? activity by the law school receiving the waiver would then be considered sufficient. No two law schools were alike, and parsing the differences among them was time-consuming and complex. At its peak, this sort of debate easily occupied more than half of the entire time of the Membership Review Committee and more than half of the time the Executive Committee spent on membership review topics. Some members of these committees were less than comfortable with the slender distinctions they were required to draw.
The U.S. Congress stepped into this thicket by enacting what was popularly known as the ?Solomon Amendment.? In essence, it denied the benefit of federal grant and contract funding to any law school that refused to permit military recruiters access to its facilities. In addition, such schools would also lose some (but not all) federal student grant and work-study funds. In 1997, in response to this statute, the Executive Committee concluded that any member school believing that this loss of funding would seriously disadvantage it would be permitted to allow military recruiters in the law school, again on the condition that it provide ?amelioration.?
The Department of Defense toughened the impact of the Solomon Amendment in 1999. Previously it had applied only a unit-by-unit basis in a university setting, so that a law school?s exclusion of military recruiters would have had no impact on the rest of the campus. But the new DoD regulations eliminated that unit-by-unit approach, and instead decreed that if any unit (such as a law school) excluded the military, the entire university would be subject to loss of federal grant and contract funding. For all law schools that are part of larger universities, this approach simply made continued exclusion of military recruiters impractical, since doing so would carry a huge price tag ? in some cases many millions of dollars.
The Executive Committee responded in 2000 by giving, in effect, a blanket waiver of its regulation to all law schools, permitting them to allow military recruiting if they provided suitable ?amelioration.? Indeed, the vast majority of our member schools now have military recruiters using their facilities. The focus has shifted to ?amelioration,? and that is the good news at the end of my rather convoluted tale. Amelioration, as the Executive Committee has applied it means two things: first, that the law school must post a public notice explaining that the miliary recruiters are allowed to use the placement facilities because of the Solomon Amendment, and that their policies with respect to sexual orientation are in conflict with the Association?s and the law school?s own policies. Second, the school must go beyond merely posting a notice, and take some affirmative steps to ensure that they?re providing an accepting and welcoming climate for their gay and lesbian students.
There?s no express rule stating what those steps must be; that?s a matter for each school to work out. A school?s activities may or may not have anything directly to do with the presence of military recruiters. The point is that nearly all AALS member law schools must think seriously about the environment that their gay and lesbian students face, and must do something to ensure that that environment is not hostile or inimical to the education and life of those students. Some schools have probably taken a perfunctory approach to this requirement, but many have been creative and displayed a genuine desire to improve matters. The Executive Committee has not attempted to second-guess the member schools with respect to the quality of their amelioratie efforts; we have assumed that they will act in good faith.
When the Association first decided to exclude military recruiters from law schools, nearly a decade ago, I believed we were a very small tail attempting to wag a very large dog. The majority of the Executive Committee felt that we had an obligation to make the statement we made by excluding the military, irrespective of its likelihood of affecting national policy. Our original policy has had, after many twists and turns, a good result, although perhaps not the one that anyone would have predicted when it was adopted. We have gone beyond the formality of nondiscrimination, and are expecting our member schools to take steps that will ensure a positive learning and living climate for all of our students, irrespective of their sexual orientation. In that respect, I believe we have done some real and tangible good ? perhaps more than enough to justify the labor we have invested in the effort.
Legal education: from whence have we come? I?ve been discussing what AALS has been doing and expects to do to improve legal education. Let me turn now to the broader questions: From whence has legal education itself come and where should it be going? First, a bit of historical perspective. There can be no question that legal education is of far higher quality than it was when I began law school nearly 40 years ago; indeed, it is noticeably better than just a decade ago. Clinical and skills training offerings, which were meager indeed when I was in law school, are plentiful and healthy today. From the earliest encouragement and funding provided by the Council on Legal Education for Professional Responsibility (CLEPR) in the 1960s and 70s to the MacCrate Report in 1992, we have been prodded to make skills training an integral part of our programs, rather than an afterthought. In this we have been largely successful, and our students are the beneficiaries, as they will eagerly testify.
Law schools have also developed a greatly heightened sense of the importance of public service, especially to people who cannot afford conventional legal services. The Equal Justice Project carried out by Elliott Milstein as AALS President in 2000 has been a major stimulus in this direction.
One of the most exciting and useful developments has been the growth in training for alternative dispute resolution. Not much more than a decade ago, most law students would hardly have gained an inkling in law school that there was any forum other than conventional litigation for resolving civil disputes. Today we have experienced a revolution in that respect, and many students will graduate having had serious training in dispute resolution ? training that will redound to their clients? benefit.
Without question our colleagues are more able and better prepared to teach law than was the case in the past. We are able to be almost embarrassingly selective in our hiring. Many of our colleagues now have advanced degrees in other academic specialties and are able to bring those skills and tools to bear on the problems of the legal system. While we are inundated with law journals today, we must admit that some remarkably creative and interesting scholarship is being produced. In the classroom, as well, the so-called Socratic Method has become just one of many tools we use to keep our students? interest and involvement at a high level. I believe that the quality of teaching has never been so high as it is today. A good deal of credit must be given to our 2001 President, Mary Kay Kane, for her support of better teaching, and especially our workshops on New Ideas for Experienced Teachers and for New Law Teachers. There are also more of us ? some 9,000 full-time law teachers last year, as compared with only 7,400 ten years earlier. Our faculty- student ratio has improved, allowing us to move somewhat away from the traditional mass-production of legal education in large classes.
AALS regards gender, racial and ethnic diversity as one of its core values, and I personally subscribe to that value enthusiastically. We have made slow but steady progress in terms of the diversity of our faculties and student bodies. Let me offer some numbers to illustrate our increase in ethnic diversity. In the 1990-91 academic year, minorities accounted for just 10 percent of all full-time law faculty. Ten years later that figure had climbed to 13.8 percent. In terms of raw numbers, the improvement is even more impressive: there were 1250 individuals of color in the professorate last year as compared to 740 ten years earlier, an increase of 68 percent. More than 7 percent of our faculties are now African-American, and more than 3 percent are Latino.
Why are these numbers important? The one relationship that I think beyond dispute is that we cannot expect to recruit minority students if we do not have minority faculty, and in significant numbers. The students simply will not trust us, and will not commit three years of their lives to us, if they cannot see themselves reflected in some of our faces. Law students of color, in turn, are in my view one of the critical elements in finally putting to rest the racial conflicts that have so torn our nation over its history. Law remains the greatest gateway to leadership ? political, business, and institutional leadership ? in the United States. It is absolutely essential, not only for the sake of basic fairness, but to our well-being as a nation, that citizens of every color and ethnicity view themselves as having a fair opportunity to achieve leadership positions. We need to see our diversity efforts not merely as a game of numbers. Rather we must view faculty and students of color as an essential link in healing the ethnic divisions and distrust that have long been American?s greatest domestic problem. We have a long way to go, but legal education is making important progress along this path.
Now to conclude: where should we be going? I don?t pretend to be a prophet, but I believe I can see some areas in which we need improvement. Our skills training in litigation and in non-litigatory dispute resolution has taken huge steps forward. Our teaching of skills to transaction lawyers has not kept up. We need to apply the same creativity and a comparable allocation of resources to the training of our students who will practice in such fields as corporate law, tax, estate planning, and real estate. Opportunities for client-contact clinics are more limited in these fields, and we must think more carefully about how to provide useful learning experiences for our students.
With respect to classroom teaching, we are better than in the past, but not uniformly so. I am sometimes struck by an encounter with a faculty member who simply does not regard himself or herself as a lawyer. Such individuals have little or no interest in the legal profession and its practice, and they may well communicate that indifference to their students. We must remember that we have our positions in the professorate only because of our students. We are not research institutes. Our primary duty, to which all else including our scholarship must be subordinate, is to train people to be lawyers. When we quit doing that, people will quit paying us. I use the word ?train? advisedly here. It has acquired a bit of an unsavory connotation in some circles of legal academia, unlike our friends in medical education, who frankly and cheerfully acknowledge that they are in the training business. We must have an abiding interest in the legal profession, both as it is actually practiced and as it should be practiced, and we must communicate to our students the theories and skills they will need to succeed in it.
We need to continue to press one another with respect to diversity. While we have made progress, we are well behind the curve. The 2000 census data indicate that fully twenty-five percent of Americans have a minority racial or ethnic heritage, while the law professorate is just a little more than half of that. I do not wish to suggest that any sort of quota or fixed goal is appropriate, but only that to the extent we do not reflect the composition of the communities we serve, we will continue to have difficulty recruiting and retaining students from the whole of that community. We have some distance to go.
I?ll mention briefly two other areas in which we need to make serious headway. One is in the way we publish our scholarship. While some law schools have experimented with on-line publication of law journals, we have no nationally-recognized system for doing so. In my view, hard copy publication is archaic and inefficient, and fails to reach a large share of its potential audience. Electronic publication is clearly the way of the future, as a number of other academic disciplines have already discovered. We need to move more aggressively in that direction.
Finally, I would suggest that we have not yet fully come to grips with the fact that the clients our students will serve as lawyers are increasingly engaged in global enterprises and transactions. Even litigation, traditionally the most local of activities, often takes the form today of international arbitration. Thousands of small American enterprises which a decade or two ago would not have considered doing business across national boundaries are doing so today. We are not yet doing a good enough job of training our students to represent them. I hope to make our role in globalization the theme of the plenary session at next year?s annual meeting in Washington, and we will sponsor a world-wide conference for legal educators in 2004 that will examine the ?global curriculum.?
I haven?t touched on what many of you may believe are the biggest current issues in legal education: The fluctuating level of student applications, the fiscal impact of the economic recession, the shortfalls in state revenues, and the need to teach our alumni and friends that all law schools today need and deserve private support. These are indeed storms, but I am confident that we will weather them. This is an exciting time to be a law professor. I appreciate the opportunity to work with you, and wish you great success in 2002. Thank you.
* This article appeared in the February 2002 AALS Newsletter. It is a transcript of the the President's Address to the House of Representatives at the 2002 Annual Meeting.