******************** THIS BLOG HAS MOVED TO WWW.LEGALINSURRECTION.COM ********************

This blog is moving to www.legalinsurrection.com. If you have not been automatically redirected please click on the link.

NEW COMMENTS will NOT be put through and will NOT be transferred to the new website.

Wednesday, May 12, 2010

Clinical Law Profs Don't Even Count As 3/5ths Of A Person

The Obama administration is beginning to push back against the accusation by four law professors that Elena Kagan had a discriminatory hiring record while Dean of Harvard Law School.

I highlighted these claims -- and the paucity of logic behind them -- in my prior post, So Why Am I Already Defending Elena Kagan?

Harvard Law School Professor Randall Kennedy correctly notes in a post today at HuffPo that hiring is not the exclusive province of a Dean, and that faculty politics and committees play a central role. It reminds me of the old quip that "academic politics is the most vicious and bitter form of politics, because the stakes are so low."

The thrust of the claim is that Kagan did not hire any tenured or tenure-track minority law professors during the six years she was Dean.

In defense, the Obama administration notes that Kagan hired three minority clinical law professors during this time period (emphasis mine):

[The White House] emphasizes that Kagan did not have the final say in hiring at Harvard, where such decisions are made by committee. The memo also argues that Kagan made other appointments and promotions that enhanced diversity, including moving two minority professors to tenured positions. Three of the 12 clinical professors hired were minorities.
This raises a good point, which I thought about when the controversy first arose, but didn't write about because it seemed too much like inside baseball.

For those of you who do not know (and I get a lot of e-mails asking me about this), the term "clinical law professor" signifies a professor who works with students on real client cases as part of the learning experience, usually in conjunction with classroom teaching. The hope is that by integrating client representation into the educational process, law schools will help students learn more about the practice of law, both from a skills and ethics standpoint.

Clinical law professors typically have spent many years or decades practicing law and often were leaders in their legal field before joining a law school.

Clinical legal education is a strong focus of the American Bar Association, which has promulgated standards which not only require law schools to provide clinical education, but also require law schools to provide protections for clinical law professors in terms of academic freedom and job security.

It is not simply a matter of tenure versus non-tenure. ABA rules require that law schools provide the functional equivalent of tenure, usually through long term presumptively renewable contracts, to clinical faculty. Many law schools also provide for tenure for clinical faculty.

The treatment of clinical faculty varies from law school to law school, and obviously from academic professor to academic professor.

But I am entirely comfortable with the generalization that legal academia looks down on clinical law professors. Twenty years of legal practice representing real clients counts for far less in academia than 20 publications.

So, it is not entirely surprising that the four law professors who have attacked Kagan's hiring record chose not to count clinical law professors. Not even as 3/5ths of a law professor.

The fact that the four law professors consciously excluded the hiring of minority clinical law professors in their calculation of Kagan's diversity record says a lot about the class snobbery masquerading as racial sensitivity which permeates so much of our political and academic landscape.

Related Posts:
Kagan Said She Meant What She Said About Gay Marriage
Why Do They Hate Elena Kagan?
So Why Am I Already Defending Elena Kagan?

Follow me on Twitter and Facebook
Bookmark and Share


  1. Having voluntarily left academia a number of years ago, I'd say a big ol', "Yep," is warranted.

    I sometimes counted as a double minority -- a female over the age of 40.

  2. Great illustration - how many people got the reference to the US Constitution? Thanks, again. You are right on target. I personally don't think the woman is qualified, and that there are too may things in her background that make her unqualified. However, that is not my decision. Hopefully the Senate will do its job and ask the questions that need to be asked.

    And, thank God you are NOT "just 3/5ths of a person"!!! We need ALL of you to keep up your commentary on the issues facing us at lightening speed!

  3. Very funny post....love the irony

  4. Designating a professor as "clinical" or "adjunct" or "visiting" or any other adjective beyond that of professor is labeling in the extreme and the unnecessary. Any future attorney worth his salt would want to take a clinical course to capture up to the minute methods, etc. used in actual practice. Academics who decry the status of these kinds of law professors need "clinical" help with Medieval Professional Labeling and Marginalization Syndrome. It ranks right up there with those who believe the best public servants have been schooled at Harvard or Yale Law. A lot of good talent is missed. It's like not allowing women to serve on the supreme court.

    My favorite academic senior faculty syndrome is the Faculty Blind to Retail Function of Educators Syndrome. Sufferers are Senior faculty members who will not deign to teach freshman classes. In doing so, they miss helping to inspire and select good student talent for the growth of their discipline never mind department. It's bad business. Education is in the retail business. When senior faculty turn entry level students totally over to Teaching Assistants, it lowers the inspiration factor in grabbing the imaginations of future majors.

    The University of Rochester (when I went there) had some of its best professors on the front lines of new student recruitment - freshmen classes.

  5. Way off topic, and I apologize, but a few days ago I posted a comment jokingly blaming the Gulf oil spill on Dick Cheney using very tortured logic. Today, Chris Matthews made the argument for real.


    These guys are SO predictable.