Change and innovation in the delivery of legal education: are we managing it well?

Patricia Leighton, Manchester Metropolitan University

This paper catalogues and evaluates the nature and extent of key changes in the delivery of legal education and addresses the management of change within law schools, focusing on the impact of change on the work, development and opportunities of those who work there.

The aim of this paper is to explore the impact of change in aspects of legal education on the work experiences of law teachers and the way they are managed. The particular focus of the paper is to question whether some of the current and proposed strategies, for example moves to increased use of IT, self-directed learning and distance learning, have been sufficiently analysed in terms of their implications for staff management. At the same time the paper argues for a rigorous analysis and, if appropriate, challenge to some education policy developments.

Take a specific example. There has been much discussion of the likely impact of fees on, say, university funding and viability, access to higher education and diversity in the student population. There has been little or no consideration of the impact of fees on staff-student relationships and mutual expectations. More importantly, the impact of fees and likely consequences for course delivery, learning support and institutional accountability, most pertinently, for the employment contracts of lecturers and others has been entirely neglected.

Change and employment conditions

A glance at other recent policy initiatives affecting the labour market reveals a need for caution and reflection. For example, it is now well recognised that the requirement for compulsory competitive tendering (CCT) from 1983 in the public sector has not only led to generally declining conditions of employment for the workers affected but that this decline has had a disproportionately adverse affect on women workers.

Similarly, the enthusiasm for ‘flexibility’ affecting virtually all employment relationships in the UK has had to be radically curbed in recent years. The consequences of fixed term and zero hours contracts becoming more widespread, longer working hours, widening skill demands and the like are now recognised. The incidence of stress, demotivation, disloyalty is growing and, many believe, are inevitable consequences of ‘flexibilisation’.

The worrying aspect of such phenomena is that the causal changes were introduced quickly and without proper piloting and evaluation. It is likely that had these processes been undertaken the outcomes described above could have been foreseen. Such outcomes are in no way confined to the UK. However, in other part of the EU the response has been speedy and principled. In effect, legislation and other measures have been introduced to ensure a fair balance as between the employer on the one hand, as user of ‘flexible’ workers, and, on the other, for the employee (Wilhagen, 1997).

An essential context for this paper is, therefore, labour market changes and labour market policy by government, especially in the 1980s. The argument made here is that the experience of these changes requires now that all proposed reforms should be subject to sceptical and rigorous scrutiny. In an educational context, by way of illustration, we have had the rapid (and sudden?) introduction of modularisation and semesterisation. Although modularisation can be supported as a logical, necessary and internationally recognised means of course development, delivery and comparability, the rise of semesterisation has been far more controversial. Where did the idea come from? Who promoted it? Why has it taken a particular form in the UK? Most importantly, where are the mechanisms which piloted, reviewed and reflected upon whether it has proved successful? These are important questions because, as Harris and Tribe (1995) have shown, the relentless pressure on assessment, with consequent pressure on staff, is but one of the (unforeseen?) consequences of semesterisation.

The wider ‘people agenda’

Ask any managing director of a major UK company, especially one in the service sector, about the secret of their success or their plans for the future and they will likely say “People are our greatest asset!”. There will then be the predictable calls for investment in staff development, involvement in business plans, measures to reward and motivate staff etc. Some organisations will seek tangible evidence of the success of their staffing policies. They will aim to achieve Investor in People accreditation or one of the many human resource management awards and then provide regular presentations at major human resources conferences or workshops. The amount of energy and effort expended in demonstrating ‘people friendly’ policies can be awesome!

In amongst these leading edge employing organisations it is rare to find employers in the public sector, even rarer from education. And yet, the higher education sector alone employs at least 1 million staff and, at a minimum, 60% of the budget of any education institution is people-related. They, of all employers, should see the wisdom of investing in staff, not only to improve service delivery but to enhance the ‘bottom line’ by reducing waste, especially through labour wastage and skills and quality loss. And yet, so often we hear reports of low staff morale and agitation.

The people agenda in legal education

Turning to the specifics, it is useful in the process of analysing the current situation to explore it from two perspectives. This process draws on recent research findings relating to the education sector generally and law teaching in particular. The first perspective is that of the perceptions and views of lecturers; the second is an analysis of data and trends.

Lecturers perceptions are obviously conditioned by a number of factors; length of employment in education, age, gender, type of institution employed in, other work experience and personal values and aspirations, for example. Anecdotal evidence suggests that many staff lament the passing of a ‘golden age’ in legal education when departments and courses were expanding, innovation was possible and encouraged, job opportunities were considerable, student numbers were manageable, teaching groups small, students better educated, well motivated and articulate. There was, it is said, a strong sense of development, direction, certainty and security.

These perceptions do have objective validity. Pratt (1997) describes polytechnics in the 1970s and early 1980s as innovative and confident. Staff there were equally positive (Whitburn, Mealing, Cox, 1976). Evidence from the old universities is not dissimilar. New law schools were established, many having distinctive features (clinical legal education at Kent, socio-legal emphases at Lancaster, interdisciplinary work at Sussex etc.) More pertinently, law teachers felt secure. They had tenure in the old universities. Similarly, there were stable terms of employment in the local authority run polytechnics and colleges. Pay, though never high, seemed to be keeping pace with, some at least, of the comparable professions. Occasionally, in the public sector there were major and sudden pay increases. This factor helped to sustain the feeling that although few became rich in higher education there was a defensible trade-off between lowish pay on the one hand but flexibility, opportunity and personal satisfaction, on the other hand. It may be significant that in the 1970s and 1980s most of the literature on higher education focused on policy development, funding, curricular issues, with few analyses of the profession of teaching in universities and polytechnics. These were largely descriptive and positive. (Becher, 1989; Triesman, 1994) with some less flattering accounts (Bradbury, 1984).

Research into law teachers themselves (Leighton et al, 1995) though limited, reflects this general situation. Law teachers attach the highest priority to ‘being a part of an academic community’, ‘contact with students’, and teaching and research. Most relevantly, there was a strong commitment to doing research, both in terms of complementing teaching and as an essential activity in its own right. The opportunity to reflect, develop ideas, to publish and generally contribute to legal analysis and to policy development was seen as of paramount importance.

Others valued the opportunity to act as consultants, to participate in community, political and related activities such as Amnesty and the Howard League for Penal Reform. In essence, although law teachers generally found their work rewarding they wanted to participate in activities beyond the lecture room. They also identified what practical changes would improve their professional lives, such as enhanced administrative support and more staff development opportunities. Interestingly, relatively few wanted fewer students or drastically reduced teaching hours – though, of course, this finding might simply reflect the need to keep a job!

The messages from that research were clear, across institutions and in all parts of the UK. They reinforced the impression that ‘being an academic’ is a special occupation, requiring time, reflection, personal contact and a subtle blend of motivation.

The 1980s onwards: all change?

It is difficult to underestimate the significance of these years. ‘Thathcherism’ required education to be brought into a competitive environment. The rise of the concept of the education ‘consumer’ with choice drove the agenda in all sub-sectors of the education service. All education institutions should be aware of employment, market places and budgets. The mechanisms to deliver this agenda have been complex and shifting. Nonetheless, funding criteria and processes have gained a strong hold which, coupled with the impact of the marketplace have caught many institutions, subject areas and individuals in a vice-like grip.

Arguably, an even more potent factor for change and stress has been the ‘explosion of pressure for accountability’ (Cuthbert, 1996, 15). Many have argued that this external pressure has challenged what many academics hold most dear. How can they now carve out ‘quality-time’?

With the rise of the Quality Assurance Agency (QAA) the trend is likely to intensify and likely lead to a growing sense of disempowerment. This is a particularly critical issue if ‘empowerment’ is especially valued by academics. Many are currently questioning the value of the QAA’s ‘benchmarking’ processes. Is this yet another example of ideas being implemented rapidly without full objective and proper evaluation of their impact and effectiveness? Who is monitoring the piloting of benchmark students? Will ‘bench marking’ curb the initiative, creativity and diversity which many law teachers hold dear? This is especially important when combined with the framework imposed on qualifying law degrees by the legal profession.

More directly, research confirms that the recent explosion in student numbers has not been accompanied by staffing increases or improved employment conditions (Harris et al 1997). The data is there on staff-student ratios and class contact hours, loads unthinkable in the 1970s. There is nothing unusual about law teaching in this overall picture. Similarly, research confirms the growing burden of assessment of students, without additional resources.

A further factor has been the impact of the Research Assessment Exercise (RAE) which has, apparently, put further pressure on teaching and learning resources and may well have been a causal link in increased student complaints and appeals. These, too, being additional strain for teaching staff.

Employer responses to financial pressures and change

There have been initiatives by some universities to ‘impose’ new employment contract terms of employment. These have, broadly, required more flexibility from lecturers, unmatched by enhanced pay and conditions. A ‘take or leave it’ culture has prevailed in some institutions, which claim the justification of declining public funding and the need to become more efficient and cost effective. Such policies have often been implemented by also claiming a legitimate pedigree from private sector employer responses to market and human resourcing challenges. The reality is that many institutions have introduced policies and practices in a crude way, which has been seen as exploitative by already poorly paid research, teaching and support staff. Deference to a valid human resources agenda is unconvincing.

There may well be an argument that the employment contracts of law teachers in many education sectors have failed to keep pace with the changing nature of education and its delivery. The traditional response of employee organisations has, perhaps reasonably, sought to retain the culture of the ‘golden age’ considered earlier. Law lecturers are not well paid, it is argued, so it is entirely unjustified to change their terms of work. This may or may not be a sensible strategy. It has not proved popular with education employers who see that their main objective is to survive and then develop. There has, then, been considerable tension in the area, much of which is today unresolved.

At the heart of the problem is an anomaly whereby law schools and law teaching has generally become more of a ‘business’, with targets being set by institutions. These may be to increase or at least maintain student numbers and to provide more flexibility and service for students. This does not sit easily with the reflective practitioner model described earlier. Worse; there appear few valid ways to influence developments or even to express problems. This may be anyway a hard task as universities, including law schools, have not sufficiently explained to employees and a wider public just what, precisely, their work is and how critical it is to economic, social and cultural well-being. We, maybe, took that for granted. We are not alone amongst UK professional groups with this problem – it’s just that we seem less indispensable than many!

Then there are the many changes to the way law is taught and assessed. This conference provides an opportunity to reflect on their nature and scope. Leaving aside the debates as to whether, say, workbooks, distance learning, student managed learning, the wider use of audio-visual aids and, indeed, technology generally are positive developments, it is hard to deny that the professional role of the law teacher has changed considerably. We have all had to learn new skills, including IT skills.

The evidence is clearly there to illustrate the fact that law teaching in further and higher education is also subject to growing external pressures, resource constraints and changing (and declining) employment conditions. Student numbers, class group sizes and personal contact have become critical issues. What is especially concerning is the fact that these issues are, at best, only hinted at in recent government publications and, at worst, entirely ignored. Universities and colleges continue to recruit staff, continue to be able to offer fixed term or casual contracts and low pay. So what’s the problem, some might ask?

There are some indicators of problems. First, there is a relatively high level of legal claims by lecturers, especially for discrimination, harassment, equal pay and constructive dismissal. These are indicators of frustration, low morale and probably poor staff management. Second, we have seen high levels of staff illness and early retirement. These are difficult matters to deal with, especially if there is no financial support from the education institution for sick pay, cover etc. There are few other occupations where personal, specific delivery of work is so critical, so the willingness of colleagues to ‘cover’ is crucial, as is goodwill more generally.

So, what to do?

The first thing is to accept that change is ‘endemic’ and the so-called ‘golden age’ will never be recaptured. The second is to see that the recent past, the present and the future pose challenges which many, especially younger staff, find interesting and positive. Teaching a large group in a stimulating way can be just as easily a challenge as an indicator of decline. Having more personal tutees can lead to better use of information systems and time. Providing students with more appropriate and focused advice can be achieved through a thorough role analysis of both academic and support staff. Where resources are stretched it is vital to play to strengths, minimise waste and seek to enhance the job satisfaction of all. Declining resources generally should lead to a rigorous exploration of the most effective use of all resources and a more focused response. For example, are we making the best use of support staff as well as IT? Are we wasting resources through duplication, mismatching skills to roles, inappropriate staff development, wasteful teaching and assessment strategies.

Third, consider what are the core values and strategies of what we do. The value of ourselves and what we do must be fully and carefully analysed. This will be a demanding activity. Research needs to be undertaken and there be wide dissemination of findings.

Fourth, we must explore and take the best and most appropriate strategies from best practice in human resource management. Many have written about the abuses of so-called ‘managerialism’. It would be foolish, however, to ignore the experience of the better employing organisations. We do need to focus on reward systems and we do need to explore an ideal model of a reward system for higher and further education and support initiatives like Higher Education Role Analysis (HERA). This aims to provide proper and objective job analysis so as to ensure parity and fairness in pay structures.

Finally, we must be cautious about ideas that make education cheaper; we must not throw in the whole towel to distance learning (valuable though it can be). We need to value people in valued institutions. It is also important to note that recent and planned reforms to employment law should have particular relevance for higher education. The 1998 White Paper (Fairness at work) signals improvement for those on temporary contracts, compensation levels at employment tribunals are set to rise and, generally, some of the most extreme and adverse consequences of the so-called flexible workforce should be tackled.

References

• Becher T (1989) Academic tribes and territories: intellectual enquiry and the culture of disciplines (1989)
• Bradbury M (1984) The history man
• Cuthbert R (1996) (ed) Working in higher education London: Society for Research into Higher Education
• Harris P and Jones M (1996) A survey of law schools in the United Kingdom (no longer available)
• Leighton P (1998) ‘New wine in old bottles or new wine in new bottles? The contribution of new university law schools to legal education’ Law and Society Spring (special edition)
• Leighton P, Mortimer T and Whatley N (1995) Today’s law teachers
• Pratt J (1997) The polytechnic experiment: 1965 -1992
• Triesman D (1994) The Association of University Teachers: the first 75 years
• Whitburn J, Mealing M and Cox C (1976) People in polytechnics

Last Modified: 12 July 2010