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Osgoode Hall Legal Studies Research Paper Series, No. 7, Volume 13, Issue 2, 2017. Forthcoming in the Canadian Bar Review.
Darcel Bullen, Legal Counsel and Business Agent, Service Employees International Union, Local 2
Lorne Sossin, Dean & Professor, Osgoode Hall Law School, York University
Excerpt: Introduction and Part 3 + postscript
[Footnotes omitted. They can be found in the original via the link above]
The focus of this study is accessibility and inclusion in legal education. Bringing together conversations about broadening financial and structural access to legal education, we seek to broaden the institutional responses to the CBA’s call for accessible and innovative legal education in the Futures Report by making the case for a Flex Time Juris Doctor (JD) program. This paper explores how more flexible models of JD programs can foster a more diverse and inclusive learning community for law students.
The first Part of the study situates the discussion about access to legal education in a historical context by outlining the existing financial accessibility and inclusion models. In Canada, the range of flexible legal studies generally is limited to a part-time or extended-time program of study that is only available as a retroactive accommodation to students experiencing barriers to full-time study who may be mature, low-income, sole support caregivers, or from other under-represented groups in legal education. While there is not a mid-sized city in the U.S. without part-time law school programs, intentionally designed flexible legal education remains non-existent in Canada with exception to graduate level legal education where professional, part-time LL.M. programs have been flourishing for over twenty years. Without long-term solutions to the front-end burdens and barriers to accessing legal education (for example, through lowering tuition), providing greater flexibility in how students can obtain legal education provides an attainable and meaningful pathway to greater access and inclusion in Canadian Law Schools. We situate this examination in historical and comparative perspective in light of part-time legal education models in the U.S., which reflect some of the benefits of legal education accessibility, as well as pointing to a range of cautionary tales about programs whose students allege isolation from the main currents of student life and intellectual engagement at law school.
The second Part of the paper moves from the existing models of legal education to consider one which has not yet been attempted in Canada and attempts to answer the calls for financially accessible legal education – a Flex Time JD program. The introduction of a Flex Time JD program in Canada offers promise in the face of the barriers recognized in the CBA’s Futures Report.
Drawing on the research gathered in Osgoode Hall Law School’s Accessible JD Working Group over the last two years, including surveys of potential law students, the third Part of this paper examines the potential features of a Flex Time legal education program. We observe that if a flexible legal program can meet the diversity, family status, ability, and financial accessibility needs of present and future lawyers, then a Flex Time JD has the potential to enhance both the accessibility and quality of legal education.
Part Three: Developing a Flex Time JD
In this section, we outline the key reforms to the existing JD model by which it could accommodate the goals of the Flex Time JD outlined above –those goals include enhancing financial accessibility and social inclusion in legal education on the one hand and enhancing the quality of the Law School experience on the other.
For each potential reform, we consider the extent to which it advances these twogoals, and the extent to which it could, if implemented, give rise to objections on equity, efficiency, efficacy or effectiveness grounds (though these are note intended to exhaust the grounds of concern which may be raised in the circumstances of particular programs).
Operationalizing a Flex Time JD could be accomplished in a variety of ways, including (but certainly not limited to) the mechanisms discussed below.
1) Remove or alter the minimum and maximum credit thresholds
This model for a Flex Time JD likely constitutes the most modest change. The JD program itself would remain unchanged, but the floor and ceiling for credits would be altered or removed entirely so students could take classes at their own pace and extend or accelerate their path toward a JD at their discretion. This reform allows for mass customization – every student can ensure the length of their JD reflects their own needs, preferences and priorities.
Key risks include equity and effectiveness. Students may perceive those students only doing a course or two at a term at an advantage as they can focus their studies in a more concentrated way in those areas. By the same token, those extending or accelerating their time may feel at a disadvantage by not following what may continue to be perceived as a “normal” track. Law student recruiting for summer positions or articling, for example, are tied to perceived progress through a three year ninety credit JD program (or combined program with another degree over four years). With respect to the effectiveness of the legal education, there are few relevant studies on the impact of accelerating or decelerating the pace of the legal education or how best to provide for the service needs and academic success of a law student population pursuing legal education at different speeds across different years of the program. Additionally, experiential, oral advocacy, research and writing and public interest graduation requirements all must be modified to fit these different circumstances. The administrative impact may make a complete removal of maximum and minimums not feasible.
Extended or part-time programs provide modest additional flexibility while retaining the concept of minimum and maximum credit limits. At Osgoode and the University of Toronto, for example, the extended time/half-time programs envision students taking approximately half a full time load per term in the program. The University of Saskatchewan part-time law studies program illustrates the present status quo of existing flexibility:
Applicants are generally expected to study law on a full-time basis. However, part-time status may be granted on a discretionary basis in certain circumstances. Applications for part-time status are assessed on a case-by-case basis.
The part-time program is available to assist applicants who have family commitments, disabilities, health needs, occupational obligations or financial needs which prevent full-time study. It is also available to applicants who have not been in an academic institution for a significant number of years. The program is not intended for those who want to test their interest in law or who would prefer a light course load. Part-time students are required to attend classes at regularly scheduled times, and therefore must be available to attend classes during the day time.
Applicants who wish to be admitted on a part-time basis must submit a written statement giving reasons why they are unable to pursue full-time studies. Those admitted as part-time students must complete the first year of the three-year Juris Doctor degree before they can change their status to full-time.
In First Year Part I, students must take a minimum of 12 credit units and a maximum of 18 credit units. First Year Part I students are required to take Legal Research and Writing 243.0, one of the substantive courses connected with the Legal Research and Writing program, plus either one or two other full-year courses or one or both of the two half-courses in Constitutional Law [Constitutional Law 231.3 (Division of Powers) and Constitutional Law 233.3 (Charter of Rights and Freedoms)]. In addition, students are required to participate in the dispute resolution component of first year. In
First Year Part II, students must complete the remaining first-year courses.
If students can access existing course offerings at existing times at a different pace, one goal of the Flex Time JD is met, but others remain unfulfilled.
We suggest that this status quo is on its own insufficient to advance key aspects of the Flex Time JD. This approach does not address the inability of some students to take courses as currently scheduled – particularly in the First Year program where there is less flexibility and more required elements. Additionally, this approach assumes Flex Time legal education will attract students with the same learning needs and interests as full-time legal education, and this assumption may be false. That said, this model likely has the fewest costs and therefore represents for many Law Schools a sustainable and important first step down the road of a Flex Time model.
This kind of shift can also create important momentum by attracting more law students seeking greater flexibility. For example, if Flex Time legal education succeeds in attracting more diverse law students, more mature law students, and students with more work and/or care experience, it is reasonable to suggest that such students may seek more variety in the format and timing of their courses than the present cohort of full-time students.
Additionally, the idea that full-time legal education is the norm, and that part-time programs exist as an accommodation – a deviation from the norm – is itself, in our view, a deficiency of the model. A growing cohort of law students are seeking and expecting more flexibility, and once this shift starts, it may create the momentum for further injections of flexibility in the design of the JD program.
2) Digital and other Flex Delivery of JD Courses
An additional model for a Flex Time JD is to offer courses at different times and in different formats which can be accessed more flexibly. The classic model of the U.S. part-time law degree was referred to as “Night School” as it typically features evening classes, to accommodate the expectation that most if not all students were engaged in work or care responsibilities during the day. New variations on this theme have featured accessing courses through video-conference software of Skype so that a student could “attend” a Law School class from home or other locations.
“Courseware” such as Blackboard and Moodle, in addition to course websites, listservs, cloud-based sharing of documents (e.g. Google docs) chat spaces and social media platforms (e.g. Facebook groups), further allow course materials, discussions and assignments all to be accessed from any location with an internet connection.
Digital delivery may also lend itself to be combined with problem solving and client simulation pedagogies. Australia National University’s JD program, for example, combines a problem-solving curriculum with digital and distance based access. Ryerson and the University of Ottawa each have piloted digital virtual firms as a model of legal education through the Law Society of Upper Canada’s Law Practice Program (LPP).
While digital and distance formats allow maximum accessibility from multiple and shifting locations, and may create opportunities for virtual communities, they also miss much of the lived experience designed to take place in physical environments around the Law School and University. If such options are designated only for Flex Time law students, moreover, this distinction may give rise to stigma or a “second tier” impression for Flex Time students, just as “night school” legal education in the US often is referred to as less rigorous and of lower quality than “day programs.”
Where Flex Time students also have disproportionately high numbers of equity seeking students, or students from segments of society underrepresented in the legal profession, the impact of this stigma or “two-tier” Law School concern are exacerbated. A similar dynamic may arise if “on-line” law school courses are juxtaposed with “in-person” courses. For this reason, it may be important to introduce digital courses in which all students (full time and Flex Time) register or hybrid models where on-line and in-person elements are designed with different learners (full time and Flex Time) in mind.
There are significant costs associated with the start-up of digital/simulation models of legal education but also savings which may flow over time. While digital legal education is unlikely to be less expensive than in-person legal education, it may be structured and funded on a revenue neutral model over a sustainable time horizon, particularly as more widely adopted and mature digital platforms drive cost down. For example, the introduction of “clickers” was hailed as a major pedagogical technological advance in the late 1990s allowing for instant polling at significant expense for the hardware and software involved – today, greater instant polling functionality is available free of costs on a range of widely available apps for smartphones.
3) Summer Term
A number of Canadian Law Schools have summer courses, or allow students to study abroad in summer programs for credit in their JD program.
The University of British Columbia Faculty of Law, for example, offers two summer “terms” covering the mid-May to mid-June, and late June to late July periods, and include a range of core courses available to JD and Masters students. Additionally, some programs offer summer courses open to students from other Law Schools – for example, the University of Victoria has a “summer session” open to any JD or graduate student in “good standing” from any “recognized law school.”
A summer term may help achieve the goals of the Flex Time JD in at least two ways. First, by offering a further span of time in which to each credits, students can spread the approximately thirty credits needs annually over three terms requiring less intense Fall and Winter terms. Second, summer courses may lend themselves to greater experimentation along the lines of the alternate delivery models of the second model (for example, through intensive delivery methods or remote access recognizing the different scheduling challenges and preferences of students not engaged in full-time study during that period).
Summer terms can be structured to spread existing course offerings over three terms and use classrooms and Law School infrastructure which otherwise often lie fallow in the summer, so also have the benefit of modest, if any, additional costs to a legal education program. Students themselves may incur greater costs if summer programs overlap with summer job opportunities but again this can be addressed through the scheduling of summer courses or through permitting self-selection so only those with compatible work and care schedules seek out summer course offerings.
While a summer term cannot in and of itself achieve the Flex Time goals, it represents an important incremental step toward a JD program better able to respond to diverse students interests and goals.
4) Flex Time Cohorts
As we note above, many Law Schools already have extended time or part-time status for students – often as a response to students who entered the full-time program but cannot complete their JD on a full-time basis. This model is distinct from a Flex Time cohort, where a program is designed and delivered specifically for a group of students expected to complete the program over a longer (or, shorter) period than three years. For upper year students, the logistics of such status turns primarily on the first model discussed above – lowering (or raising or removing) the minimum number of credits students must take in a term. First year programs, however, are more complicated, as many aspects of this program interrelate and so become more difficult to spread over two or more years or to accelerate.
For example, hiving off a separate First Year section or group as “Flex Time” students requires choosing particular times or delivery models for the course content which increase administrative complexity (including course calendar scheduling, academic success supports, experiential education programming, student services, career development and library resources, etc) and the risk of equity concerns as students both in Full Time and Flex Time cohorts may have concern about the benefits counterparts in the other cohort enjoy. Separating out cohorts also can give rise to stigma or the notion of a first and second tier of legal education experience noted above, which some of the U.S. “night schools” have experienced from time to time. Finally, to some, a Flex Time cohort within at least the First Year program will appear less a flexible or elastic model of legal education, but just a differently rigid option, with specific times and modes within which required courses must be taken – this is just as likely as the full-time model to work for some but not others in a diverse group of students. A Flex Time cohort may involve the greatest costs, given the administrative complexity of managing admissions and course requirements within a Flex Time cohort context, and the additional student services, library services, clinical education offerings, and other customization of the Law School experience to a Flex Time model (e.g. moots, pro bono or public interest placements, exchanges, student clubs and associations, etc).
That said, the notion of a cohort also has some distinct benefits. There are potential advantages of students in such a cohort relying on each other for solidarity and support, for a Law School to offer specific services (academic success and wellness, library research, legal writing, career development, etc) tailored for Flex Time students. Additionally, the cohort model may create opportunities to explore specific kinds of pedagogy designed for these students and distinct from pedagogy employed with full-time students. Finally, a specific cohort model may allow a law school to seek specific funding sources to support Flex Time legal education, ranging from Law Foundations with access to justice and inclusion mandates, government programs and donors seeking new avenues to support low-income or financially vulnerable law students.
As we learned during discussions of Flex Time legal education at Osgoode, however, many who support the idea of a Flex Time cohort also want many of the benefits (e.g. a summer term, digital delivery of courses, etc) extended to all students. In other words, as much as stigma remains a concern, so does limiting the benefits of Flex Time legal education only to Flex Time law students.
The inherent tension between whether Flex Time legal education should be the “same” legal education delivered in different ways, or an opportunity for innovation in creating distinct forms of legal education, remains a constructive (and potentially disruptive) aspect of the dialogue around accessible legal education. Given the cultural shift this entails, and the need to explore new funding models, a more incremental approach to Flex Time legal education may be advisable.
Regulation and Governance of Flex Time Legal Education
Virtually all the reforms set out above would involve at least two layers of governance – first through the Law School and University collegial governance for approval of changes to academic rules (assuming a model is chosen not already provided for in the rules) and through the Federation of Law Societies of Canada’s approval process. That latter process includes a “national requirement” of competencies but also sets out minimum standards for other aspects of an approved law school program in Canada, including the overall number of credits (presumptively ninety based on a model of three years of full time study) and the minimum degree of “in-person” instruction.
At first glance, it would appear some approaches to Flex Time legal education would have very little impact on governance (for example, where an existing course is taught at night) while others could have significant impact (for example, where a summer semester is created or a digital course that no longer accords to the metrics for assessing course credit – such as “contact hours” in a classroom).
Beyond academic governance, Flex Time models may also have an impact on collective agreements (which stipulate working hours and requirements of consultation and/or agreement prior to changes in any changes to the delivery of courses affecting terms and conditions of staff or faculty work) or on Law School budgets (some of which collect tuition by “term” rather than for each credit). It may be important to establish design constraints on the development of Flex Time JD models that satisfy other equity or policy considerations – for example, as part of Osgoode’s Accessible JD Working Group, we considered as a point of departure that the cost model of Flex Time and full time JD programs be similar, so that neither group of law students is asked the “subdidize” the other, or may feel their Law School experience has been deemed more or less deserving of Law School resources. Additionally, we took the view that even though tuition may be paid over a longer period of time for some, the actual cost of a JD would be identical for students who started the program at the same time, whether on a full time of Flex Time basis.
Our point here is simply that a shift to Flex Time legal education likely will involve not only operational planning and academic community support, but also may be a catalyst for revisiting other premises and frameworks for how Law Schools structure, staff and budget for their academic programs.
Osgoode’s Flex Time Working Group of Faculty Council proposed just this month introducing first-ever evening classes into the First Year program at Osgoode (which already has a range of evening courses in the upper year program) and this proposal was unanimously adopted by Faculty Council as an incremental step toward broader Flex Time JD options.
— Lorne Sossin, February 2017