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Tuesday, January 5, 2021

Kuehn: The Disparate Treatment Of Clinical Law Faculty

Kuehn (2019)TaxProf Blog op-ed:  The Disparate Treatment of Clinical Law Faculty, by Robert Kuehn (Associate Dean for Clinical Education, Washington University):

In her recent presidential message, Abolish the Academic Caste System, the president of the American Association of Law Schools (AALS) called on law schools to address the caste system within law faculties by providing parity in security of positon and salary to non-tenure/tenure track faculty, such as the overwhelming majority of law clinic and externship instructors.[1] Data from the just completed Center for the Study of Applied Legal Education (CSALE) 2019-20 Survey of Applied Legal Education of  95% of law schools and 1,300 law clinic and externship instructors show widespread disparate treatment of clinical instructors (i.e., law clinic and externship instructors) and a lack of progress in providing parity between those who teach in law clinics and externships and those teaching doctrinal courses.[2]

In 1998, 46% of clinical teachers were in tenure or tenure-track positions.[3] Yet as the chart below indicates, the percentage of clinical faculty in tenure/tenure track positions, even when including lesser status clinical/programmatic tenure positions, has declined to just 29%, and decreased by more than 30% over just the last 12 years (temporary appointment clinical fellows excluded from all tables).

Kuehn 1

Though there have been notable exceptions at a few schools, law clinic and externship hiring has disproportionately been for contract positions since the 2010 downturn in law school applications and accompanying financial challenges.

This increasing pattern of hiring non-tenure track clinical faculty can be seen below when comparing employment status to years of clinical teaching. Forty-six percent of clinical faculty teaching more than 12 years are in traditional or clinical/programmatic tenure or tenure-track positions. In contrast, only 23% of those hired within the last four-six years and just 16% of those hired in the last three years are in tenure/tenure-track positions. Although some clinical faculty hired into non-tenure-track positions may be permitted to move later into tenure-track positions, those limited instances cannot account for the increasingly lower status among more recently hired clinical instructors.

Kuehn 2

Non-tenure status has consequences for clinical faculty, beyond the limited participation in faculty governance and lower prestige that generally come with appointments other than traditional tenure. The table below compares the salaries the over 70% of law clinic and externship faculty not tenured/tenure track with the salaries reported by doctrinal faculty at the same schools. These clinical faculty are paid, on average, $30,000 per year less than their doctrinal colleagues at similar points in their careers. Even when salaries of clinical faculty with traditional or clinical tenure/tenure track are included in the calculations, clinical faculty on average make over $20,000 less than their doctrinal colleagues.

 

Instructors

Median Annual Salary in $

3 years or less
(Assistant Professor)

6 years or less
(Pre-Tenure Associate Professor)

 6+ years
(Tenured Professor)

Law Clinic & Externship
(non-tenure/tenure track)

85,000-95,000

90,000-100,000

110,000-120,000

Doctrinal/Classroom

108,000

129,400

148,100

The disparate treatment of clinical faculty in tenure appointments is most pronounced at schools ranked higher in the U.S. News annual law school rankings. Among schools with at least half of their clinical faculty in tenure/tenure-track positions, only one school ranked in the top 25 primarily appoints clinical faculty to traditional tenure-track positions, yet over 36% of the 50 lowest ranked schools provide this status to their clinical faculty.

U.S. News
School Rank

Percent Schools Offering Clinical Faculty

Traditional Tenure

Clinical/Programmatic Tenure

1-25

5%

20%

1-50

12%

15%

Lowest 50

36%

4%

Some law school clinical education programs even treat types of clinical instructors differently, providing less security of position and salary to those who teach in externships. CSALE survey data show that externship instructors are less likely to have traditional or clinical tenure/tenure track when compared to their law clinic peers (25% vs. 38%) and are almost 15 times more likely to be primarily in an administrative position with only occasional teaching responsibilities and sometimes little training in externship pedagogy.

Employment Status

Percent Reporting

Law Clinic Instructors

Externship Instructors

Unitary tenure/tenure track

24

17

Clinical tenure/tenure track

14

8

Long-term presumptively renewable contract

34

29

Short-term probationary contract leading to long-term

7

4

Other short-term contract

17

12

Administrative position

2

29

Other employment term

1

2

Salaries of externship instructors also are considerably lower, with median annual salaries, on average, $20,000 less per year than those of law clinic instructors:

Instructors

Annual Salary in $

25th percentile

Median

75th Percentile

Law clinic instructors

90,000-99,999

120,000-129,999

150,000-159,999

Externship instructors

80,000-89,999

100,000-109,000

120,000-129,999

The latest CSALE survey shows that in spite of occasional stories about a school adopting tenure for its clinical faculty, the AALS president is right ─ the academy remains highly caste-like in its disparate treatment of clinical faculty, especially at higher ranked schools and even within clinical education programs at some schools. Indeed, if anything, progress toward parity appears to be slipping as an increasing percentage of new teaching positions in law clinics and externships are without the security of position and salary of doctrinal faculty.

The AALS has moved lately towards an Executive Committee comprised entirely of deans and former deans. If the members of the Executive Committee support their president’s call to end the caste system, they could act to do so at their own schools and call upon their fellow deans across the country to do the same.

[1] Darby Dickerson, Abolish the Academic Caste System, AALS News (Fall 2020), at https://www.aals.org/about/publications/newsletters/aals-news-fall-2020/presidents-message-abolish-the-academic-caste-system/.

[2] Center for the Study of Applied Legal Education (CSALE), 2019-20 Survey of Applied Legal Education (2020), at https://www.csale.org/#results.

[3] Richard K. Neumann Jr., Women in Legal Education: What the Statistics Show, 50 J. Legal Educ. 313, 328 (2000).

[4] 2018-19 SALT Salary Survey, SALT Equalizer (Nov. 2019), at https://www.saltlaw.org/wp-content/uploads/2015/03/SALT-salary-survey-2019-final-draft.pdf.

https://taxprof.typepad.com/taxprof_blog/2021/01/kuehn-the-disparate-treatment-of-clinical-law-faculty.html

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