Should We Pay Law Students for Clinics and Externships?

Pay athletes Pay law studentsThe NCAA just wrapped up another hugely successful March Madness tournament. A hugely profitable one too. While these numbers are from last year, they likely haven’t changed too much since then. In 2014, the NCAA tournament brought in $700 million to the NCAA. Of that $700 million, $498 million was divided among all the Division 1 schools. Even more profitable?

In 2014, CBS and Turner Networks made over $1 billion off of the Tournament. In fact, March Madness television revenue out-earned the NBA, MLB and NHL playoffs combined.

Of course, college basketball players do not make anywhere close to that much money. The argument has long been that the college athletes get (1) full academic scholarships and (2) national media exposure that can lead to, however unlikely, (3) multi-million dollar professional contracts. That, according to many, should be enough.

Does the Fair Labor Standards Act Apply to Interns?

But the tide might be changing. There is a very loud national debate going on right now about whether companies have been violating Fair Labor Standards Act by not paying their interns. Closer to home, Northwestern football players are awaiting an NLRB decision on whether they can unionize. College athletes might even be able to get money from the NCAA’s use of their likenesses. And, in light of recent racial issues in America, there’s a renewed focus on the implications of, in the case of basketball and football, primarily white administrators profiting off of primarily black college athletes.

So should college athletes get paid? That debate is going to make its way through our court system in the upcoming years. And somewhere in that debate, I wonder if the lawyers arguing for and against are going to mention another form of unpaid labor provided for academic benefit – law students working in clinics and externships.

Fee-Generating Clinics

Recently, the Chicago Daily Law Bulletin published an article about IIT Chicago-Kent School of Law’s semester-long intensive clinic. Third-year students will have the opportunity to take the clinic, and no other courses, for the entire semester. While this is an excellent initiative, that continues the trend at Kent and other law schools over the past several years, one thing is unique about Kent’s program – the clinic is fee-generating.

Unlike clinics at other law schools, 8 of Kent’s 12 legal clinics are fee-generating clinics. In 2013 Kent’s fee-generating clinics had around 200 students and brought in $2.1 million dollars. According to Kent, the fees sustain the clinic and allow the school to target more qualified educators. Moreover, students learn to make judgment calls about cases that may make more economic sense to take on than others, a valuable, real-world skill.

Of course, there is no denying that experiential learning is one of the best ways to learn the practice of law. And clinics don’t just educate law students; they also provide free (or low-cost) legal services to communities in desperate need of aid. At the same time, clinics are expensive to run, making Kent’s decision economically sensible.

But should the law students who work on these cases (likely several law students over the lives of these cases) get paid if the school obtains fees from their work? And we’re not simply talking about fee-generating clinics like the ones at Kent. We’re also talking about when schools sue for statutory fees in litigation. If the school receives the fees, those presumably go back to the school. But the individual students who did the work over the years? They get experience, of course, and the benefit of a well-run clinical program. But again, they don’t receive any money.

Unpaid Law Student Externships

Educational experience or paid experience. Which matters more? That question came up yet again recently, this time with unpaid law student externships.

For years, the ABA Section on Legal Education (in charge of accreditation standards for law schools) has enforced Interpretation 305-2 which says the following: “A law school may not grant credit to a student for participation in a field placement program for which the student receives compensation.”

Last year, the Section opened debate on whether the Interpretation should be revoked. The decision was made to keep it in place. According to the managing director of accreditation and legal education: “No one pays you to go to class. You pay for the educational experience, and maybe it’s just best to leave it that way.”

If you have a moment, it’s fascinating to review the comments submitted for and against paying law students for externship work. With a few exceptions, the law school professors who wrote in were unanimously against allowing law students to receive academic credit for paid externships. Conversely, with one exception I could find, law students were unanimously in favor of allowing academic credit for paid externships.

The faculty comments generally focused on the same issues: (1) schools would have less control over the externship employers, (2) the educational experience would be greatly diminished, and (3) students will only take jobs that can pay them, rather than valuable government or public interest jobs that cannot.

As for the financial benefit to the students, the faculty seemed less concerned about that issue. One professor wrote: “As a practical matter … a job earning $3,500 or so per semester puts little dent in a $200,000 student loan debt. But the loss of the educational experience provided by well-supervised, educationally-oriented externships can never be recouped.” Another professor added: “[P]ermitting paid externships will be little more than a drop in the bucket for a small percentage of students.”

Unsurprisingly, the students disagreed. The comments submitted did not admit to the negative outcomes from being paid for externship work for which they also received academic credit. Quite the opposite. Students argued that law schools would maintain the same control over the law student and the externship site as they have now; students who wanted to pursue public interest and government work would not be forestalled from doing so, and students who find paid externships should not be penalized and unable to obtain academic credit simply because the externships are paid. As for that $3500 “drop in the bucket,” according to law students at Suffolk University:

Students pursuing externships should have the opportunity to receive compensation for their work if they are so fortunate. Students forfeit their time to broaden their education in pursuing these externships and allowing them to collect a nominal wage to offset gas prices and costs of living is not unreasonable.

Because of the work of the ABA Law Student Division, Interpretation 305-2 has been sent back to the ABA Section on Legal Education for reconsideration. It might be a year or more before the ABA provides its final response. Meanwhile, some law students are generating very small amounts of income for their schools through unpaid clinical work. And all law students are being told that they cannot receive both academic credit and money for legal jobs that will off-set, however slightly, their thousands of dollars of law school debt. In essence, law students are being given a message similar to that given to student-athletes and unpaid interns everywhere: “It’s not about the money. It’s about the education and the experience and the opportunities that arise.” But as the national unpaid labor debate continues, and the decisions come rolling in, the question becomes how much longer that message can survive. These students are the future of our profession. Where should our profession stand in this debate?

Commission intern Lindsey Lusk of the University of Illinois College of Law contributed to this post.

Michelle Silverthorn

Michelle Silverthorn

Former Diversity & Education Director at Illinois Supreme Court Commission on Professionalism
After spending seventeen years living in the Caribbean, Michelle undertook a number of around-the-world detours before ending up at the doorstep of the Commission, including four years as a general litigator in New York and Chicago. She remembers pretty much everyone she’s met in her travels but she would especially like to meet again the passengers on a January 2001 flight from Miami to JFK. At the pilot’s request, they donated enough money for Michelle, who had her wallet stolen, to get back to college safely. She would very much like to tell them all thanks.
Michelle Silverthorn

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Michelle Silverthorn

Michelle Silverthorn

Former Diversity & Education Director at Illinois Supreme Court Commission on Professionalism
After spending seventeen years living in the Caribbean, Michelle undertook a number of around-the-world detours before ending up at the doorstep of the Commission, including four years as a general litigator in New York and Chicago. She remembers pretty much everyone she’s met in her travels but she would especially like to meet again the passengers on a January 2001 flight from Miami to JFK. At the pilot’s request, they donated enough money for Michelle, who had her wallet stolen, to get back to college safely. She would very much like to tell them all thanks.
Michelle Silverthorn

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