Editor’s Note:  Conservative elements in society and in academia have, until recently, rejected distance learning as a viable alternative to traditional education. This paper documents progress made in the legal profession to admit distance learning courses toward the Juris Doctor degree and standards that are applied to ensure that standards are met.

The Reluctance to Embrace Distance Learning as an Essential Component of the Law School Curriculum

Jeff Ershler

Abstract

This article examines the reluctance of law schools to embrace distance learning as an essential component of the law school curriculum. Recent reforms approved by the American Bar Association section on Distance Learning reveal that first year law students are essentially excluded from participating in distance learning. Moreover, the American Bar Association’s guidelines for technical requirements for the law schools and the willingness of law instructors to participate in on-line education are seen as obstacles to full inclusion of distance learning.

Introduction

The law school experience is decidedly an interactive experience. Students are almost always subject to an official attendance policy that requires their physical presence in the classroom on a regular basis with a limited number of acceptable absences. Often, the rationale for an attendance policy to is foster learning in a synchronistic real-time forum where students can discover the rationale behind legal arguments via the Socratic method.

Although distance learning has become a staple of higher education, law schools have been reluctant to embrace this new format. This method of delivery ostensibly permits a larger number of students to access courses who may be too far removed from the campus to attend, too busy to attend regular sessions, or who prefer taking a class on-line.

As part of the rationale for caution in proceeding with embracing distance learning, James White (1997), a consultant on Legal Education to the American Bar Association made the following statement:

“Educating a student for a Juris Doctor degree is professional education of a most distinct variety. It involves more than the mere delivery of information or simply learning facts, history or even logic. During a law school education a student is expected to participate in a learning community whereby he or she will ultimately learn, experience, and develop skills and knowledge that will advance the legal system, society and his or her career. This law school experience involves interaction with faculty not only in the classroom, but also in other places and at other times. Students also learn from each other by inquiry and challenge, review and study groups. In sum, law school is an educational process in which a student matures with the law and his or her ability to use and develop it.”

According to the American Bar Association’s section on distance learning (2002), currently there are not any law schools approved by the ABA that provide a J.D. degree completely via correspondence study. The ABA’s policy 304 (f) previously stated “a law school shall not grant credit for study by correspondence.” This policy seemed to preclude the utilization of distance learning as a method for delivering the law school curriculum. However, recent modifications to this policy make it clear that distance education, as a part of the law school experience, is now permissible. ABA Standard 304 (b) (2002) states the following:

“A law school shall require, as a condition for graduation, successful completion of a course of study in residence of not fewer than 56,000 minutes of instruction time, except as otherwise provided. At least 45,000 of these minutes shall be by attendance in regularly scheduled class sessions at the law school conferring the degree, or, in the case of a student receiving credit for studies at another law school, at the law school at which credit was earned. Law schools may, however, allow credit for distance education as provided in Standard 306. Law schools may also allow credit for study outside the classroom as provided in Standard 305.”

This newly approved policy still clings to the notion of establishing minimum requirements of physical presence in the classroom, but permits some of the law school experience to be on-line.

To explain the policy changes, the ABA detailed the new rules for distance learning and how these rules would be implemented. ABA Standard 305 states that a “law school may grant credit toward the J.D. degree for courses or a program that permits or requires student participation in studies or activities away from or outside the law school or in a format that does not involve attendance at regularly scheduled class sessions.”

The ABA further indicated that Standard 305 by its own force does not allow credit for distance education courses. However, Standard 306 (a) addresses this issue. The Standard reads:

“A law school may offer credit toward the J.D. degree for study offered through distance education consistent with the provisions of this Standard and Interpretations of this Standard. Such credit shall be awarded only if academic content, the method of course delivery, and the method of evaluating student performance are approved as part of the school’s regular curriculum approval process.”

Standard 306 (c1) and (c2) even permits the distance education courses to count towards the 45,000 minutes of classroom instruction time, provided that “there is ample interaction with the instructor and other students both inside and outside the formal structure of the course throughout its duration; and there is ample monitoring of student effort and accomplishment as the course progresses.”

However, there is a limitation to how many hours a law student may earn under a distance education program. Standard 306 (d) indicates “ a law school shall not grant a student more than four credit hours in any term, nor more than a total of 12 credit hours, toward the J.D. degree for courses qualifying under this Standard. Standard 307 (e) states, “No student shall enroll in courses qualifying for credit under this Standard until that student has completed instruction equivalent to 28 credit hours toward the J.D. degree.”  This Standard further limits enrollment to those students who have substantially completed their first full year of study. The fact that first year students are still required to be subject to the traditional curriculum reveals that the ABA is still loyal to tradition and not yet ready to embrace the full possibilities of distance learning.

States have become the guardians of the decision making process of who is eligible to become members of the bar. However, states have been reluctant participants to accredit law schools, and have relied heavily on ABA recommendations (2002) for accrediting. ABA policy seems to permit the use of distance learning courses with some limited exceptions. An argument has been forwarded that states could, therefore, jeopardize the legitimacy of the process of allowing individuals to become members of the bar who have participated in distance learning programs without giving careful scrutiny to the legitimacy of those programs.

States could circumvent this problem in at least two ways. States could participate in the accrediting process. However, a more realistic proposal is for states to delegate the power to ABA accredited law schools to establish review committees that could pre-approve distance learning courses as part of the standard law curriculum.

An exception has been carved out that seems to permit some utilization of distance education as a component of obtaining a J.D. The exception has been called experimental. (White, 1997).

One rationale for not utilizing distance learning as a tool in teaching law is the workload required for instructors. Instructors are beginning to get frustrated with the seemingly unwritten double standard that exists in distance education. An instructor simply has to do more work to make their product palatable to the masses, than they would if a course was taught in the traditional classroom setting. As the ABA’s interpretation (2002) of Standard 306-4 indicates, “law schools shall take steps to provide students in distance education courses opportunities to interact with instructors that equal or exceed the opportunities for such interaction with instructors in a traditional classroom setting.”

Instructors must also be more available and carefully balance their other professional responsibilities with the student’s needs for contact. It may be that law school instructors are not willing to put forth the extra effort required of a distance learning facilitator.

Another justification for not utilizing distance learning may be the profession’s unfamiliarity with utilizing a new form of teaching technology. Given the traditional reliance on the current paradigm for delivering instruction, or their prior experience with utilizing computers and distance learning technology, institutions that deliver the law school curriculum may not be familiar with how to utilize the contemporary resources to conduct an on-line class. Moreover, prior to implementing any distance learning program, the ABA, in their interpretation of Standard 306-5 (2002) requires law schools to have the technological capacity, staff, information resources, and facilities required to provide the support needed for instructors and students involved in distance education at the school. This Standard also requires law schools to establish mechanisms that assure that faculty who teach distance education courses and students who enroll in them have the skills and access to the technology necessary to enable them to participate effectively.

These goals could be readily met with the appropriation of funding to employ a distance learning team to manage the school’s technologic resources and offering a few in-service courses of the variety that higher educational institutions regularly offer to introduce distance learning to faculty members. By nature, law instructors are an intellectual group; they should cultivate the opportunity and adapt quickly.

However, a more plausible rationale for the decision not to utilize distance learning in law school is the insistence of following the traditional method of instruction; utilizing the synchronistic experience of real-time Socratic methodology to help students derive the meaning of their discipline.

Technologic advancements have created on-line platforms that are well developed and permit the instructor of law to overcome the objections to using distance learning. Synchronistic real-time instruction is a reality for many instructors in higher education.

Particularly telling, is the absence of scholarship or inquiry devoted to examining the nature of why law schools are still reluctant to embrace distance education. At the 2000 Center for Computer Assisted Legal Instruction Conference on Distance Learning (2000), most of the seminars focused on strategies for implementing a distance learning program, but failed to focus on the important issue of whether or not law schools will actually utilize distance learning as a tool.  There was not a single seminar devoted to examination of how to encourage law schools to embrace distance learning.

Given the technologic improvements in distance education, and the creation of new policies that permit distance learning, there must be further investigation as to why law schools are reluctant to take advantage of this opportunity. More importantly, it is worth considering why the ABA has failed to take a position of true inclusion with respect to distance learning programs.

Bibliography

2000 Center for Computer Assisted Legal Instruction Conference on Distance Learning, (2000). Retrieved December 18, 2002 from http://www.cali.org/conference/2000/SESSDESC.HTM

Distance Education at American Bar Association Approved Law Schools, American Bar Association, Distance Learning Section. (2002). Retrieved December 17, 2002 from http://www.abanet.org/legaled/distanceeducation/distance.html#ABAdistance

House of Delegates concurrence with the Standards and Interpretations proposed by the Council of the Section of Legal Education and Admissions to the Bar, American Bar Association (August 13, 2002). Retrieved December 18, 2002 from http://www.abanet.org/legaled/standards/proposed.html

White, James P. (May 6, 1997)  MEMORANDUM D9697-59 to the Deans of ABA Approved Law Schools.

About the Author:

Jeff Ershler is adjunct faculty in the criminal justice program at Lynn University, Baton Rouge, Florida. He can be contacted at email: JErshler@lynn.edu.