By Elliott S. Milstein

One of my colleagues, on his way to teach class one day recently, said sardonically, ?Well now it is time to go mislead my students.? I laughed with him because, of course, neither of us believes that we are misleading our students. We understand that our work as law professors permits us to aspire to improve the legal system in a number of ways, but most importantly through what we teach our students. Each of us does that in our own way, expressing our own understanding of what is important to teach, what values we hope to transmit, what skills we expect our students to master and what perspectives on the law and on practice we want them to appreciate.

While we count on others on our respective faculties to complement what we do, bringing other points of view to our students without undermining our own, there is often disagreement among us over the contents and methodologies of the curriculum. And, of course, that disagreement is sometimes played out in the faculty appointments process and in debates over curricular change. And even though we often complain that those arguments are unpleasant, those of us who devote our professional lives to legal education believe deeply that institutional decisions about what is to be taught to prospective lawyers are matters of consequence.

Participation in the deliberations over the direction of our law schools and in the intellectual communities they constitute is integrally connected to our work as law reformers, critical thinkers, legal scholars and teachers and our responsibility as citizens of a democracy. This is true whether the issues involve what research is valued, what pedagogies are respected, or what curriculum will be offered. We depend upon the concept of academic freedom to protect the integrity of our scholarship and our teaching, to permit us, as it were, to speak truth to power in those contexts. For the same reasons we also need to rely on its protections to allow us to contend for what we believe within our own circle. And this is the point of the tiresome debate over the faculty status of clinicians, still going on in some schools nearly thirty years after it began.

Our goals as scholars and as teachers lead us to want both to shape the future and to prepare our students for it. And because those students will be among the major players whose decisions, actions, and expectations will determine what the legal system will become, we believe that what they learn in law school will have a direct impact on the ways that law, legal institutions, and the legal profession can operate to produce a better society. Indeed, those of us who believe that struggling for fairness, equality and freedom is the highest calling of a lawyer ask ourselves whether our lives would be more meaningfully spent as lawyers rather than as teachers. Choosing the latter is an affirmation that preparing others to do that work extends our mission beyond what we could accomplish alone.

When modern clinical education began to grow during the late 1960?s and early 1970?s, it was seen as a threat to the Langdellian orthodoxy that then ruled legal education and many faculties resisted it. Everyone, including its strongest proponents, saw clinics as experimental, a fact that led some to believe that it was a fad that would fail. What ended instead, as a result of criticism from multiple perspectives, was the allegiance to a required curriculum and the Socratic case-book method as the singular path to the law degree. At the same time, the clinical experiments continued, some getting adopted as innovations both inside and outside the clinic. The theories about lawyering that have resulted became the base for the diverse achievements of clinical scholarship. Indeed, I have always liked the metaphor of the clinic as law school laboratory, a place where theory is derived from experience, tested in the real world, and revised in the harsh light of reality. And as faculty puzzle over the appropriate balance among doctrine, practice, and theory in their courses and in the curriculum, the best clinics, particularly in schools where there is cross-fertilization between clinical and non-clinical faculty, have become places to integrate seamlessly all three.

But even though nearly every law school now has some form of clinical education, and even though clinical teachers have produced an extensive bibliography of solid scholarship, and even though most clinics have transcended the expectation that they would only do skills training or be legal services programs, there are still law schools that inhibit the full potential of their clinicians by not including them as full participants in the intellectual and political life of their institutions. Clinical teachers in such circumstances do not receive the full measure of peer and material support for their scholarship, nor are they permitted at the table to contend along with their non-clinical colleagues for resources and legitimacy. Furthermore, those who are not eligible for tenure do not have the same measure of academic freedom as do their tenured colleagues.

Because clinical teachers supervise students representing poor and disenfranchised people and groups in occasionally controversial matters, they are more likely to need the protection of academic freedom than do other faculty. And, each time there has been an attempt from outside the academy to impose some penalty upon a law school, a legal clinic, or a clinical teacher for a position taken in litigation, the academy, including the AALS, has stood solidly behind the freedom of the faculty member to take the particular action, regardless of the tenure status of the clinician who is involved.

However, our Association has a clear policy linking academic freedom and tenure 1  and recently successfully opposed a proposal that would have removed the requirement of tenure from the ABA?s Standards for the Approval of Law Schools. We understand that it is desirable for law professors sometimes to take positions that are unpopular with potentially powerful adversaries, and we claim that only the protection that tenure provides ensures that we are free to do so. I wonder whether the position taken by some that non-tenure track clinical teachers are nevertheless adequately protected by academic freedom doesn?t substantially weaken the argument that we need tenure for the others.

It is also true that clinical teachers who are employed on renewable contracts will periodically depend upon the approval of their colleagues and their dean for reappointment. Surely a person in such a status is not able to express his or her opinion as freely in debates over internal issues as colleagues who are tenured. And, when they are denied participation in debates about the future of their law schools, their unique perspectives on law, legal practice and legal institutions are easily marginalized when decisions are made. This is surely an anachronism that should end. The AALS, by hosting an annual professional development conference for clinical teachers for nearly 25 years, by the work of the Section on Clinical Legal Education and the Committee on Clinical Education, and by its co-sponsorship of the Clinical Law Review, has played a key role in shaping the intellectual quality of clinical education. As the learned society of legal education it has helped make clinical teaching a learned vocation. What it has not done is to insist that member schools predominantly staff their clinical programs with tenure track faculty members. Instead of that, we have begun a project to consider a Statement of Good Practices Regarding Clinical Faculty and have named a committee, to be chaired by Professor Avi Soifer of Boston College Law School, to recommend how we should proceed. It is my hope that through this way the AALS will find a way to convince law schools whose clinicians have irregular appointments to welcome them as full participants in the legal education enterprise.

* This article appeared in the November 2000 AALS Newsletter