Paychecks and Learning Not Mutually Exclusive: ABA Should Allow Students to Receive Both Compensation and Credit for Qualifying Externships

Catriona Lavery
J.D. Candidate, UCI Law 2015

No one likes to talk about money. It’s tacky. But when the average law school graduate carries more than $100,000 in debt upon graduation, it’s time to talk.

The ABA Law Student Division has been talking and then some, and I commend its student representatives for their advocacy on law school affordability. One project in the works is their proposal to remove the ABA ban on students receiving both academic credit and monetary compensation for externships. This prohibition is formally known as Interpretation 305-3 in the ABA Standards for Approval of Law Schools, 2013–2014.

In February, the Student Division succeeded in convincing the ABA Standards Review Committee to delete this prohibition from its proposed standards. The proposal then went to the ABA Council of the Section of Legal Education and Admission to the Bar, which voted to submit the proposal to the legal community at large for notice and comment. The deadline to submit comments is April 18, and a hearing will take place on April 25. The Committee will take a formal vote on the matter this summer or fall.

This proposal is a welcome step toward educational affordability in a time of unprecedented unaffordability. UCI Law costs about $1,500 per unit for California residents. If a student has the opportunity to defray part of this cost, such as the cost of a four- or six-unit externship, the ABA should be supportive. Allowing students greater opportunities to earn money while in school would particularly help students from low-income backgrounds, thus increasing diversity in law schools and in the legal profession generally.

The primary rationale behind Interpretation 305-3 is a fear that compensation would interfere with the educational quality of externship programs, but this fear is unfounded. In fact, compensation would likely enhance the education experience, not diminish it. Students would feel a greater obligation to contribute valuable work if they knew someone was paying for it. They would have an economic incentive to perform well, not merely an academic incentive to satisfactorily complete an externship course taken pass/fail. The results of a recent Student Division survey support this argument. It found that most students felt more accountable and held to a higher standard in paid legal employment than they did in unpaid externships.

At the very least, the same amount of learning would take place. Consider, for example, a summer internship with a local legal aid organization. Every year, students must decide whether they want to receive academic credit or whether they should apply for grants through organizations such as Equal Justice Works and the Public Interest Law Fund. Students working for the same organization, completing the same internship, may choose differently. Practically speaking though, their work and experiences will be substantially the same.

Furthermore, deleting Interpretation 305-3 would have no effect on the other ABA rules regarding externships. Every externship, completed for compensation or not, would still need to comply with Standard 305’s requirements that a law school faculty member evaluate the student’s academic achievement, that the law school approve the externship in advance, and that the externship program have a clear statement of goals and methods, adequate instructional resources, methods for training externship supervisors, periodic on-site visits, and opportunities for the student to reflect on his or her experience.

Some might argue that allowing students to receive externship credit for paid work would open the floodgates to externships with for-profit firms and companies, placing a greater burden on law school externship programs because it would require them to investigate whether a paid opportunity should qualify as an externship or is merely a job. Underlying this concern is the simple fact that this might be a difficult determination to make. However, this investigative work is something Standard 305 already requires externship offices to perform for countless unpaid opportunities. If the ABA believes that externship offices can adequately determine which unpaid positions are worthy of academic credit, they should be able to do the same for paid ones. Also, Interpretation 305-4 requires that resources for externship programs increase as student participation grows. If the floodgates do open, the ABA mandates that externship programs receive increased support.

We all agree that law school is too expensive; the more controversial question is what to do about it. Allowing students to receive both credit and monetary compensation for externships would be a great place to start.