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87 University of Cincinnati Law Review 77 (2018/19)
Spencer Rand is a Clinical Professor of Law at Beasley School of Law, Temple University. He teaches Poverty Law as a writing seminar and directs a law clinic in which he and his students serve low-income Philadelphians with severe illnesses and chronic disabilities.
Excerpt: Part III [Footnotes omitted. They can be found in the original via the link above]
III. USING THE RECENT TREND OF COMPETENCIES TO PUSH TEACHING THROUGH A SOCIAL JUSTICE LENS
A. Social Justice is a Competency
Competencies are “in.” At the behest of educational experts and the governing entities that monitor professional and non-professional schools, schools are designing their curricula by determining the specific competencies students need to graduate from their schools and become competent professionals. Schools must ensure that their curriculum covers the designated competencies they consider important to becoming a good lawyer. They must then design learning outcomes to achieve those competencies and measure whether their students have achieved them. Teachers must therefore design individual class syllabi with goals and objectives that are designed to teach students specific competencies and schools must teach all required competencies. Only then can the school be certain it is effectively teaching students, whether it is teaching them knowledge, a skill, or a professional value.
Law schools are accepting and adopting this strategy. After an exploration by the ABA’s Section on Legal Education and Admissions to the Bar’s Outcome Measures Committee, the ABA’s Standards and Rules of Procedure for Approval of Law Schools were amended to specifically set out competencies that schools must aim to teach students. The guidelines give some leeway to law schools to individually decide other competencies particularly important to their schools. Law schools are publishing lists of learning objectives they will teach through their curriculum and teachers are designing class goals to teach these learning objectives to their students.
Perhaps the most comprehensive look at professional schools about this form of teaching has been performed by the Carnegie Foundation, which examined engineering, medicine, nursing, pastoral, and law schools. In each of these disciplines, the Foundation’s authors found school training lacking in different ways. For example, the Foundation found law and pastoral education to be lacking in teaching practical skills versus theoretical ones. For engineers, they found that practical and theoretical courses are divorced from each other, finding that theory is put before practice and that their separation makes it harder for students to learn either. For doctors, the Carnegie Foundation found that medical training fails to teach how doctors function humanistically, calling this process “professional formation, that is, the discussion of becoming a physician that has less to do with fund of knowledge and technical skills and more to do with the character, disposition, and automatic choices, the moral compass, of the trainee.” Each school is left with a prescription for how to teach professional competencies better.
However, each of the Foundation’s reports contain some similar prescriptions, the following five of which are relevant to teaching social justice. First, professional school is not just about teaching substance and practice skills, but also about professionalism and incorporating all three together. The Foundation calls them three distinct apprenticeships. Professional school should teach (1) “habits of the mind” including substantive knowledge and the way that professionals in a profession think; (2) “habits of practice” including skills; and (3) professionalism, defined as “internaliz[ing] the values, ethical commitments, and sense of personal responsibility.” Each of the three apprenticeships are distinct from the others, and teaching is incomplete without making sure all three are taught.
Second, if teachers and schools want to know if their students have what it takes to perform at the next level, they have to measure whether the teaching activities designed to give students specific competencies are in fact teaching those competencies. It is easy to assume that social justice or any other competency has been learned by students because they have done activities that they think teach that competency. By passing a certain number and type of substantive law classes, performing practice skills in certain settings like moot court, or handling cases in a clinic, one might assume that they are mastered. However, success in these areas is not always well measured and when it is, the measures can be inappropriate proxies for demonstrating that students are ready to practice.
The ABA’s Outcome Measures Committee found that law schools are not bad at measuring some things that they particularly value, like acquiring substantive knowledge. Law schools look at whether students pass the bar exam as a prime measure, which measures a certain knowledge base, although it can leave out some skills and professional assessment. Law schools also look at how many students obtain jobs, with and without further training. But generally, the Committee found schools were bad at measuring whether skills and professionalism have been learned. In many cases, they found that law schools were assuming law students were developing competencies based on time spent in class learning about professionalism without assessing whether students had learned them. This is similar to a problem the Medical Carnegie Report found with medical schools. That report found it wrong for medical schools to assume that doctors are competent by using the outcome measure that they have been practicing medicine in residency for three years, without some way of assessing the knowledge, skills, and professionalism they have developed.
Law schools continue to have credit requirements with some mandatory topic distribution as a guide for graduating law students, which is basically a time spent requirement. If law schools think there is more to being a lawyer than book knowledge and want to be sure that skills and values have been instilled in students, schools must do something to describe the competencies they want to teach. Additionally, they must find an appropriate way to demonstrate that those competencies have been achieved.
Third, professionalism can be focused on directly as a competency that needs to be taught. This is a bold concept. It implies (1) that there are collective mores of a profession that can be identified; (2) that it is right and possible to protect those mores by teaching and instilling them into students; and (3) that if there is a desire to change the mores of a profession, the members of the profession can instill them in new generations in a way that substitutes new mores for existing ones. All these statements ring true. As described above, the ABA and other organizations have collective statements of mores that are generally accepted, including working toward social justice. Teaching these mores as professionalism is possible, as this article describes. Further, if the bar or others think law students should learn certain mores that exist or are aspirational, it can see that they are adopted by law schools.
While these things are possible, the Legal Carnegie Report is particularly harsh on law schools failing to teach the social justice part of professionalism now. It describes that to teach professionalism well, schools must teach “individual and social justice” and that law schools fail when they do not teach “a commitment to the public good as central goals of their teaching.” It notes that law schools do this poorly and, by leaving out a social justice component as part of professionalism, they imply social justice is not important.
Fourth, professionalism cannot be taught in isolation but must be incorporated into substantive and skills-based classes. One of the clearest places the Foundation describes this is in engineering education, where engineering educators seek to add a moral dimension to engineering teaching by outsourcing the work to classes taught by non-science teachers on non-science subjects including ethics. Engineering classes do not incorporate the learning taught in those other classes. To the Foundation, this practice, along with a disconnect between knowledge-based and practice classes, results in the need for a total reform of the curriculum to connect theory to practice and to ensure that all classes include discussions of professionalism. This is clearly applicable to law schools.
Although not outsourced, law schools put most professionalism teaching into Professional Responsibility classes that can be, but may not be, spoken of in the rest of the curriculum, and put most social justice teaching into clinical and out-group courses. This practice marginalizes professionalism concepts and obscures how to apply professionalism lessons in actual practice.
Others looking to teach social justice with substantive and skills-based classes note that by not incorporating social justice in all classes, it is possible schools are failing to teach the substance and skills students need to do social justice work. Substantive law teachers might not teach law that is helpful to addressing power imbalances if they do not consider social justice ramifications with their students.Skills teachers might teach the wrong skills because it is not their goal to teach skills needed to give voice to those with less voice and advocacy techniques used to empower the disempowered. Skills and clinical class teachers might not teach strategies of litigation important to social justice lawyering. This includes skills like writing “thick complaints” describing social justice goals which are unnecessary for a successful complaint, but could help as an organizing strategy for the community or as a litigating strategy if the intent of the suit is only partially about winning the case. Incorporating social justice into course curricula corrects this problem and helps students think about the law on which they want to focus and the skills they want to develop to do social justice work.
Among other things, incorporating social justice in the entire curriculum allows for social justice to permeate the law school and allows for projects like a social justice credo. [The larger paper discusses having students develop their own definitions of social justice for themselves by writing a credo describing what it is and steps they will take to will practice with their definitions of social justice in mind. Each law professor is asked to address some part of the credo in class and students hone their own definition throughout law school. The credo is discussed in-depth in the next section and available in the original.] Although a credo could be used in other ways, like having a class that focuses on social justice use a credo to make social justice relevant to that class, this puts the credo back into a likely marginalized course taken by few. It does not allow for students to see how social justice applies in the substantive, skills, professionalism, and other classes they take. It does not incorporate a social justice credo into a critical part of the law school curriculum that students constantly see.
Fifth, professionalism includes learning about commitment to the public and understanding that one must be the public’s champion. No matter the professional school, competencies cannot only be about what makes graduates adept at what they do but should be about promoting an understanding that they must accept personal responsibility for the work they do. Professionals, including lawyers, must learn to use the power that their new knowledge and skills gives them both ethically and morally. Further, they must stand up for the public, developing a “professional spine.” In the Carnegie Foundation’s words, professionals must be socialized: “In every field we studied [law, engineering, divinity, nursing, and medicine], we concluded that the most overlooked aspect of professional preparation was the formation of the professional identity with a moral and ethical core of service and responsibility around which the habits of mind and of practice could be organized.”
The Legal Carnegie Report goes into more definition of what professional formation should look like for lawyers as it pertains to serving the public and social justice. Teaching professional formation means teaching about lawyers’ “identity and purpose, introduc[ing] students to the purposes and attitudes that are guided by the values for which the professional community is responsible.” Developing a professional identity includes not only behavior toward clients but also recognizing a public mission. Students must learn how to practice and “serve responsibly.” Teachers are charged with “[f]orming students able and willing to join an enterprise of public service,” by giving students the “preparation for accomplished and responsible practice in the service of others.” Teachers must also ensure that students leave school understanding that serving the community is one of their “core commitments” as a lawyer. Many law school teachers have accepted this, describing social justice work as part of the moral responsibility of attorneys, calling it part of attorneys’ “moral obligation to advance the law’s justice mission to alleviate the effects of oppressive legal and socio-political power structures in society.”
In sum, the competencies law schools have a duty to ensure their graduates achieve include (1) the competency to see law through a social justice lens and (2) the ability to take active steps to work toward social justice. The public’s needs must be understood and students must be equipped to address them. Social justice teaching can and must be done throughout the entire curriculum to have a real impact on students and their work.
There may be some who question whether ABA and the Carnegie Foundation mean social justice when they talk about public service or if they are referring to a more amorphous statement that protecting the public matters and attorneys should figure out how to do it. However, law schools and the bar have a duty to define how lawyers should aim to perform meaningful public service. “Doing” social justice is impossible without defining it, as students cannot be prepared to practice any competency that is too fuzzy, like “doing good” or “helping the community.” For the reasons described in Part I of this paper, social justice is a definable concept involving power imbalances that must be addressed. In a world where law schools are being asked to define competencies and learning objectives based on them, law schools are in a great position to promote social justice as a competency lawyers need. Lawyers need to teach and practice knowledge, skills, and professionalism which are incomplete without the ethics and moral relevancy that a social justice lens provides.
B. Teaching a Social Justice Competency.
Teaching to competencies is not new in all areas of law school teaching. For many years, clinical teachers and some skills teachers have set explicit goals toward developing practice competence. This is clear in the textbooks that clinicians use and assign to their students and the pedagogical articles clinicians and skills teachers write. Many of those works focus on teaching goals of developing effective practice skills, like interviewing, counseling, investigating, and advocating. They describe practice models supporting social justice goals. Other texts and articles give tools for understanding out-groups from different cultures that often have less power than others and ways to transfer to and share lawyers’ power with clients who have struggled with power imbalance in their communities as well as power imbalances between them and their lawyers. Some of these promote representation styles designed to make sure that social justice values predominate, including teaching students to give the power to define problems and choose legal options to clients, and to suggest putting clients on the front lines of legal struggles to empower them.
Competency based teaching has also been used in non-clinical classes. It is common in non-law school curriculums at many levels, from kindergarten through grade schools to college and graduate school to continuing professional education classes. Although it may seem easier to describe goals and objectives in clinical and skills classes, the same methods are used and described for substantive knowledge topics. By determining what a student must be able to do upon graduation, a substantive knowledge course can look at what knowledge it should impart; design activities that are likely to impart that knowledge, which could be lectures, discussions, or activities; and measure what knowledge the students have at the end of the semester, perhaps by a test. Although some substantive knowledge teachers and others balk at teaching to competencies this way, they must do so no matter what they believe, as ABA requirements demand it.
To teach social justice as a learning objective to give students proficiency in the competency, students must be able to identify the issue when they see it. This involves knowing what social justice is, seeing the issue in the world and in the law, and framing what they are studying or doing through a social justice lens. In other words, they must be able to manipulate the concept of social justice to what they are learning and later doing. Just like law school teachers want their students to use analysis and content from their classes on other cases in the future and skills teachers want their students to transfer those skills to their career, teaching social justice means teaching students to manipulate social justice concepts in class so they can apply them in the future. To use the language of competencies, students are developing foundational knowledge of what social justice is and critical thinking tools to evaluate what they are learning so they can integrate what they learn into their work.
Therefore, classes designed to teach social justice could have the following goals and objectives:
Goal 1: Students will develop a working definition of social justice.
Teachers cannot teach to an amorphous goal and assess whether they have taught it well. It is easy to have students talk about social justice as a feeling that they know it when they see it. Such discussion is not helpful. Teachers must help students define social justice for themselves.
There are teachers who shy away from teaching a definition of social justice because they fear inadvertent or advertent indoctrination of students or that students will just mimic their values while taking the class, not learning anything. For that reason, educators hesitate to give a strong definition of social justice. As was well put by Julie Lawton, “there is a danger in imparting morality, instead of teaching students to contemplate and analyze morality—unlike substantive areas of law, there is less objectivity or settled precedent from which to teach.”
However, the goal is not indoctrinating students but getting students to develop their own sense of social justice within a broad range of parameters that includes addressing power imbalance. Part of this includes having teachers express their own views about social justice. This allows students to see that teachers have allowed social justice to color their practice and it gives students permission to do the same. Teachers should take steps to ensure that students do not think they have to accept their teachers’ views. This can be done by valuing the students’ definitions and discussion in class. Further, effective social justice teachers will be sure to teach many sides of issues, including views held by people who see the world differently than the teacher.
Objectives to accomplish that goal follow:
Students will critique definitions of social justice. In doing so, they will deploy critical reasoning skills by analyzing different ways social justice has been described and determine for themselves which versions address power imbalances that must be addressed. They will also determine which of them are usable, meaning they will determine if the definitions lead to considered actions in a way that is effective in practice.
Students will express their own definition of social justice. This could be a private expression on paper to a teacher or a public one they share and have critiqued by others in class.
Students will revisit their credo and modify it appropriately. The credo will consist of their edited definition of social justice that they will apply after law school.
Goal 2: Students will apply social justice concepts to law they are interpreting or applying.
Teachers must make clear that social justice does not sit in the background, but that students must apply social justice principles to the work they do. This means that students must not only read statutes and cases for their plain meaning, but should evaluate them. They must express what is right or wrong about how laws are written or applied. For example, if one is learning about an unconscionable contract, it is not enough to learn that if you can prove a fact about how a contract was formed, the contract is invalid. Students should also be thinking about social justice aspects—should parties with less power be protected? Why? Is it a common issue? Are low-income individuals, minorities, women, or some other groups usually on the wrong end of these contracts? How can this be addressed?
These objectives can follow:
Students will express how the law they are addressing is just within their concept of social justice and how power imbalance could affect its application. This could be done as part of class discussion or in writing.
Students will provide alternate ways a law could be written or applied to comport with social justice. This could be done as part of class discussion or in writing.
Goal 3: Students will learn ways that lawyers act as agents of change in their area of law and how students themselves can do the same.
The point here is not to make lawyers into heroes. There are plenty of definitions of social justice that describe having clients and communities be the decision makers, some of which make them the primary actors as well. However, social justice is important to lawyers no matter the role–whether it includes helping non-lawyers advocate for things or whether it is more active. Law students need to know that they can and must act to help the less powerful.
Objectives to accomplish that follow:
A. Students will identify the role the law plays in people’s lives in connection with learning or applying that law. It is not enough to teach the problems that people are facing due to power imbalance. Students must identify whether (1) the law codifies that imbalance, (2) its application brings on that imbalance, (3) if law is absent in addressing the imbalance, or (4) what could be used to help address it. They may decide that lawyers need the help of organizers or that the problems really must be addressed in a way that does not involve the law that much. Students may even decide that they want to use the tools of organizers to help their clients. However, if the law must or can be used, they must identify how the law fits into the problem or solution. This could be assessed in discussion or a written analysis of what is being learned in the class.
B. Students will identify the role lawyers play in addressing social justice issues within the law learned or in the application of that law. Unless students learn that there is action they can take as lawyers, including in which stages of the problem and in what ways they can be effective, they will do nothing more than identify problems. They must learn when and how to act. In classes where students apply law, they can learn by doing and reflecting on how what they did applies in other contexts. Although it would be more difficult in a skills class without a real problem, compared to a clinic where students see the effects of the law they are applying, both provide an opportunity to address the situation and people affected or likely to be affected, and how their actions can help in the future.
In classes where substantive law is taught, when and how to act could be taught in discussions on legislative or case common law history in the area. This could include looking at points where law allows for lawyers to intercede on an issue, and ways laws could be revised to consider the needs of those with less power, perhaps through court, administrative, or legislative advocacy.
C. Why Schools Will Teach a Social Justice Competency.
Some schools have written social justice competencies already. More law schools can. A social justice credo is one way to evidence that competencies, like the three described above, can be written into law schools’ descriptions of the learning outcomes and the competencies at which they aim.
One problem of getting law schools and law teachers to teach these competencies, goals, and objectives is that there must be buy in from faculty. This may be more likely at schools where teachers want it to happen or where teachers are given incentive from the school or other stakeholders to make it happen.
One way to do that is to hire teachers interested in social justice and make social justice teaching explicit in the school’s mission. Although many have not, many have. Loyola Law School, Los Angeles’ mission declares that it will train lawyers who will demonstrate, through their practice and public service, the deep concern for social justice. They go farther to say that social justice also means admitting students who are often disempowered, so they can be a part of the bar furthering social justice. Santa Clara Law School has an intellectual property focus but demands that its students learn that they must be excellent lawyers who are ethical and committed to social justice. The University of Notre Dame Law School, Catholic University School of Law, Northeastern University School of Law, and Thomas Jefferson School of Law all discuss social justice in their mission statements. CUNY Law School’s Philosophy and Mission statement and the UDC David A. Clarke School of Law’s description of its school make a social justice mission implicitly clear. When a school’s mission promotes social justice, it likely hires teachers to teach toward social justice, attracts students who want to incorporate social justice, and has a curriculum incorporating it. Although some of the schools mentioned above do not do so, one would expect that these schools could be encouraged to write school wide learning objectives that demand that students learn to apply social justice lenses and ask its teachers, through establishing class goals, to do the same.
Another way to promote social justice teaching is to incentivize it by having the ABA require social justice teachings in its accreditation standards. ABA regulators that review law schools every seven years could make clear that one of the things they assess when they review law schools is the teaching of social justice. This could be done through an interpretation or a rewriting of their Standards. Right now, Standard 303(a)(1) requires that law school teachers teach ”the values and responsibilities of the legal profession.” As discussed infra, the bar has made several statements that access to justice is important, implying that social justice is one of the bar’s values and goals. Standard 303(b)(2) says that schools should provide substantial opportunities to do pro bono and other public service activities. If the ABA’s Section on Legal Education and Admission to the Bar informed law schools that it was looking more into social justice learning or were to amend their Standards to make social justice teaching a requirement, it would be taught. Social justice would be considered a primary competency which law schools would derive learning objectives around. Schools would assess the way teachers teach in tenure, contract, and other employment decisions by having them prove they are teaching to this competency, making it likely teachers would do so.