Government interference with law school clinics and access to justice: when is there a legal remedy?

• Author: Joy, Peter A.
• Position: Government Speech: The Government's Ability to Compel and Restrict Speech

INTRODUCTION

Government interference with law school clinics resulting in the denial of low-income people's access to justice is not new. Recent events remind us that it is unlikely to fade away. Just last year, a law school clinic representing clients against the interests of a large poultry company spurred some legislators to introduce a budget amendment to withhold funds from the University of Maryland unless its law school disclosed information about its clients and how clinical programs at other law schools operate. (1) In Louisiana, the state legislature considered a bill to bar law school clinics that receive public funds, including private universities such as Tulane, from suing companies or government entities unless the legislature specifically approved each lawsuit. (2)

In both instances, the state legislators sought to restrict how the law schools could educate their students, and, in Louisiana, whether certain clients and legal claims could have legal representation by law school clinics. These proposals prompted many, including the American Bar Association (ABA), (3) over 450 law professors, (4) and fifty deans, (5) to object to one or both of the proposals. (6) The president of the ABA criticized the proposed Maryland legislation as "an intrusion on the attorney-client relationship," (7) and the Louisiana legislation as "[d]epriving the poorest citizens of these vital [legal] services." (8)

Both legislative efforts failed, (9) but would there have been legal recourse if either had passed? One may think that such governmental intrusions into educational programs trigger academic freedom claims and possibly other legal rights. But when it comes to academic freedom, the individual faculty member tends to conflate the norm of academic freedom on university campuses regulating relationships between the individual faculty member and administrators with legal rights. This may lead the typical professor to believe that the First Amendment provides robust protection for academic freedom, when this belief does not necessarily translate into reality in the courts.

For example, the Maryland legislature did pass an alternative budget amendment that does not withhold funds, but does require the University of Maryland School of Law to report on its environmental law clinic cases over the past two years by listing each case and non-privileged expenditures. (10) The chair of the House Appropriations Committee said that the law school had received the message, "We'll be watching." (11) One of the state senators who opposed the government interference characterized the legislative action as "better than it was, but it's still a pretty big abridgement of academic freedom." (12) He added that the language was a threat: "If you guys are getting involved in issues that we don't like, or you're bothering people that we do like, we want you to shut up." (13)

Dean Phoebe Haddon of the University of Maryland School of Law addressed the government's interference by sounding a similar theme that the government also interfered with how the clinics do their educational work. She said, "There is a specter of intimidation that could affect how the clinics choose clients or accept cases." (14) The former director of the University of Maryland's Environmental Law Clinic, Rena Steinzor, added: "It's not acceptable, because it is an effort to chill and intimidate us for taking cases that cause trouble in Annapolis." (15)

Yet, the University of Maryland is not taking legal action to challenge this requirement, and it is unlikely that it will. First, there does not appear to be a cognizable legal claim that would prevent the legislature from accessing non-privileged, non-confidential client information. (16) Second, there is the practical matter that the state legislature funds the university. Even if the university could prevail on this matter, university administrators may decide that the threat of future funding cuts is too great a risk when weighed against the burden of the reporting requirement. (17)

As the Maryland situation illustrates, government interference with law school clinical programs is both real and complicated. While there is a growing body of scholarship examining interference in clinical programs from a variety of perspectives, (18) scholars have paid little attention to the idea that government interference may result in the denial of legal rights to clinical faculty, law schools, and universities, as well as threatening access to justice for the clinic clients--individuals and communities otherwise unable to afford legal representation.

This Article analyzes government interference in clinical programs and suggests some legal remedies that may be available to challenge this interference. Part I begins with a brief explanation of clinical legal education methodology and the role law school clinics play in providing access to justice for tens of thousands clients each year. Part II provides an analysis of academic freedom, both as a norm on university campuses and as a legal principle. Part III analyzes instances of government interference, with an emphasis on those governmental actions that triggered legal actions seeking remedies. Finally, I conclude with lessons learned about the types of remedies most available when the government interferes in clinical programs.

1. CLINICAL LEGAL EDUCATION AND ACCESS TO JUSTICE

   Law school clinical programs teach law students by providing legal assistance to poor and other marginalized clients. Under the supervision of faculty, law students interview clients and witnesses, analyze client problems, provide legal advice, negotiate with lawyers for opposing parties, conduct legal research, prepare legal documents and pleadings, perform transactional work, and represent clients before administrative agencies, courts, and other tribunals.

   A law school clinic is both a law office and a classroom, and a clinic client's legal problems, including the client's legal claims and defenses, become the teaching materials that faculty use to instruct law students in the lawyering skills and professional values they need to become effective, ethical lawyers. In many ways, a law school clinic is the laboratory where students learn how to apply the analytical thinking and legal theory they learned in the classroom to solve client problems. (19)

   Today, there are clinical programs of some form in every ABA-approved law school. (20) In addition to educating law students, the clinical programs also provide access to justice for clients in need of legal representation. A recent national survey found that students in law school clinics provide more than 2.4 million hours of free legal services to more than 120,000 clients in a wide variety of cases each year. (21) Law students represent children, the elderly, domestic-violence survivors, disabled veterans, families facing home foreclosures, nonprofit organizations, small businesses, and others. (22) Clients with civil legal matters would not otherwise have access to legal assistance, and the state would have to pay for the defense of indigent clients facing criminal charges if clinic representation was not available to them. (23)

   By providing needed legal representation to individuals and groups who would otherwise not have legal representation in civil matters, law school clinics serve a critical role in making access to the courts, and therefore access to justice, available to tens of thousands clients each year. (24) This access to the courts and the opportunity to participate in legal processes has been called "a fight that protects all other rights." (25)

   Some have also argued that the clinic clients and cases become the teaching materials that clinical faculty use with law students, in the same way that classroom faculty use textbooks. (26) But unlike faculty teaching and students learning in the classroom, clinic client representation sometimes involves students and faculty who represent individuals and community groups in matters involving powerful interests. As the Maryland and Louisiana legislative actions demonstrate, sometimes the powerful interests employ strategies and tactics aimed at eliminating the legal representation of their opponents by law school clinics. Not only does such governmental interference threaten access to the courts for clinic clients, but the interference also seeks to control educational decisions about the types of cases selected for teaching students. Inevitably, government interference in such decisions raises academic freedom concerns.

2. ACADEMIC FREEDOM AS A NORM AND LEGAL RIGHT

   Academic freedom on university campuses regulating relationships between the individual faculty member and administrators is much more developed as a norm than it is as a legal right that courts protect. Academic freedom first emerged as a principle within academia in the United States when the American Association of University Professors (AAUP) issued its Declaration of Principles on Academic Freedom and Academic Tenure in 1915. (27) The 1915 Declaration announced that academic freedom for faculty consisted of "freedom of inquiry, and research; freedom of teaching within the university or college; and freedom of extramural utterance and action." (28)

   In a later 1940 statement, the AAUP expressed the norm that academic freedom guarantees professors "freedom in the classroom in discussing their subject" provided they do not "introduce into their teaching controversial matter which has no relation to their subject." (29) Matthew Finkin and Robert Post explain that this norm of academic freedom for each teacher is necessary because "students cannot learn how to exercise a mature independence of mind unless their instructors are themselves free to model independent thought in the classroom." (30)

   As a constitutional concept, academic freedom is ill-defined and illusive. (31) First, it is not enumerated as a freedom or...