Jan. 5, 2006

Legal Pressure

Of all college faculty members, clinical law professors may run the greatest risk of drawing the academic-freedom infringing ire of administrators and policy makers by involving clinics in controversial lawsuits. And yet, it is clinical faculty members who do not get tenure.

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Law professors who spoke Wednesday at sessions of the annual meeting of the Association of American Law Schools, in Washington, agreed that clinical faculty members are more in need of protection than classroom instructors, when it comes to academic freedom.

Robert R. Kuehn, director of clinical programs at the University of Alabama School of Law, traced interference with clinical decisions back to 1968, when the local bar and state legislators objected to faculty members from the University of Mississippi Law School getting involved in cases that aided desegregation. “Back then it seems like most of the interference with academic freedom was political,” Kuehn. “Now it’s mostly about money, and state funded schools are targets.”

Kuehn said one of the common power plays these days is for the state to threaten an institution’s funding when a law clinic represents people suing the state. Kuehn, formerly director of the Tulane Law School Environmental Law Clinic, has certainly felt the hand of the man over his head. In the late 1990s, the Tulane clinic, on the behalf of local citizens, successfully deterred a chemical company from building a massive plant in a predominantly minority area. Kuehn said figures as high up as the governor wanted to “shut him up.” That instance actually resulted in the Louisiana Supreme Court putting new limits on law clinics, to the delight of then-governor Mike Foster.

Often in such cases, he said, even law deans who have approved a case will feel the pressure and go back on their word. And non-clinical faculty members might not be good battle partners either. John Bonine, a University of Oregon law professor who co-founded the first environmental law clinic, said that, if the paycheck appears to be on the line, “don’t expect your own faculty to support you.” In 1993, the University of Oregon School of Law, following criticism from the timber industry, moved the environmental clinic off campus, where it was then run by a public interest law firm. “Some of our [non-clinic] faculty members quietly led the charge against us,” Bonine said.

Unfortunately for clinical faculty members, Kuehn said that academic freedom arguments “have not gained much traction with policy makers…or the public.” Thus, he added, clinical professors, who very often do not have tenure, generally end up leaving an institution, either by choice or pressure, when controversy arises. “Every clinician is one angry alumnus, one angry policy maker, or one unsympathetic dean away from a problem,” Kuehn said.

Still, according to an unscientific survey, clinical faculty members generally feel that they are being left to their own devices. According to the survey by Bridget McCormack, an assistant professor at the University of Michigan Law School, 122 of the 147 clinicians who responded said they either had no concerns about interference, or their concerns are small enough that they don’t change either coursework or cases because of them. The other 25 respondents said they make some changes, with 15 of them saying the changes are significant. Fourteen of the clinicians said they had actually experienced direct interference, and 13 of those said it involved the cases they chose to work on.

Joan S. Meier, a professor of clinical law at the George Washington University Law School wanted to know how far she could expect academic freedom, in so far as it serves to protect anyone, to shield her. “Is it an academic freedom issue if you’re attacked for something you say outside the classroom?” she asked.

David M. Rabban, a professor at the University of Texas School of Law, said that it’s an academic freedom issue if the opinion expressed “is related to your expertise, which should be construed broadly.” Still, he said, an institution should not take action against a professor who, for example, condemns the war in Iraq. “That should be protected by the free speech,” he said.

“So what does academic freedom get you?” Meier wondered. The general answer seemed to be: it depends on who jumps to your defense. Still, even when clinicians get pushed around by politicians or administrators who want to choose their cases, Bonine, for one, thinks they should have no fear. “Fighting these battles is fighting for freedom,” he said. And as for worrying that the struggle could be a career stopper: “You will not be road kill when you’re done,” Bonine said. “You’ll be a hero.”

— David Epstein

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