Devonshire, P; Brailsford, I --- "Defining pedagogical standards and benchmarks for teaching performance in law schools: contrasting models in New Zealand and the United Kingdom" [2012] LegEdDig 23; (2012) 20(2) Legal Education Digest 23

• Defining pedagogical standards and benchmarks for teaching performance in law schools: contrasting models in New Zealand and the United Kingdom

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Defining pedagogical standards and benchmarks for teaching performance in law schools: contrasting models in New Zealand and the United Kingdom

P Devonshire and I Brailsford

The Law Teacher, Vol 46, No. 1, 2012, pp 50-64

In the last two decades the tertiary sector has had to adapt to the role of a service provider in an increasingly market-driven environment. There has been a huge shift from the 1970s when domestic students in the United Kingdom typically received local education authority grants for maintenance and remission of tuition fees. From that perspective university attendance did not present the kind of financial risk students are facing today. The recent withdrawal of central government teaching grants has forced many United Kingdom universities to consider recovering the shortfall directly from students. Such measures reinforce a growing perception of students as ‘consumers’ or ‘customers’. Similarly, attendance at New Zealand universities represents a major financial commitment, with students typically applying for student loans for living expenses and payment of fees.

In turn, universities must both attract and retain students in a competitive market where teaching quality is factored into the equation of value for money. In the United Kingdom, the Student Charter Group has recently submitted its final report to the Minister of State for Universities and Science. The report recommends that every higher education institution should have a Student Charter or similar high level statement to set out the mutual expectations of universities and students. In developing good practice across all higher education institutes it is recommended that charters should give explicit undertakings in respect of the provision of continuing professional development for student-facing staff. This further consolidates the pioneering work of the Higher Education Academy’s Professional Recognition Scheme in raising the status of teaching in the tertiary sector and establishing benchmarks for performance.

The identification and benchmarking of teaching standards is also being driven by strategic alliances and collaborations between the universities themselves. For example, the University of Auckland is a member of Universitas 21, with affiliated universities in the United Kingdom, Europe, Pacific region, Asia and North America. The U21 group’s Teaching and Learning Network shares good practice across a range of areas including curricular and pedagogical reform, the teaching–research nexus and student engagement.

Staff who are new to teaching law in both the New Zealand and British university systems face engagement with similar teaching and learning workshop topics, staff development activities and postgraduate qualification opportunities. Moreover, professional development in both countries is generally grounded in the same student and learning-centred approaches. However, the New Zealand and British programs differ in one respect, namely they operate within different compliance regimes.

Using the University of Auckland as the exemplar for New Zealand, new teaching staff are required to attend a three-day intensive teaching and learning course provided by the institution’s Centre for Academic Development (CAD) during their probationary period. Workshop topics include teaching large classes, working with small groups, encouraging active learning, diversity in the classroom, effective e-learning, course and curriculum design, assessment and receiving feedback on teaching. These courses reinforce the university’s expectation that teaching will be ‘research-based, innovative, challenging, responsive to the needs of diverse learners, and underpinned by sound disciplinary and pedagogical expertise’.

In order to develop new lecturers’ teaching competencies, several other professional development opportunities are available to staff on a voluntary basis from the small team of academic developers. These include classroom teaching observations, assistance developing teaching portfolios, help designing new courses, and peer mentoring. Academic staff increasingly ‘teach’ in different university contexts (conventional lecturing, conducting seminars and tutorials, overseeing group-based projects, supervising graduate students, working with educational designers, developing online learning resources, to name but a few), making professional development a challenging endeavour for both academic developers and participants. One-off workshops for teaching staff can supplement the mandatory induction programs and complement ‘learning on the job’ within their home departments.

In response to the pre-existing ad hoc nature of academic staff development, the University of Auckland’s CAD has, since 2006, offered a two-year part-time Postgraduate Certificate in Academic Practice for teaching staff desiring a formal, internationally recognised tertiary teaching qualification. Auckland’s program involves 600 hours of study over the two years with participants completing coursework modules (30 points on ‘Learning, Teaching and Assessment’ and 15 points on ‘Academic Citizenship and Professionalism’) plus an independent research project (15 points). Twenty-eight staff had graduated from the program by the middle of 2011 (including two law lecturers), indicating that the certificate is completed by a small band of teaching and learning enthusiasts. However, these graduates from the program are increasingly taking up leadership roles, such as chairing departmental teaching and learning committees within their schools and departments, successfully applying for teaching improvement grants and publishing within the domain of the scholarship of teaching and learning.

While it is difficult to generalise about all the British universities, the expectations placed on new lecturing staff appear (from the New Zealand perspective) more onerous. Taking the universities of Birmingham and Nottingham (both partners with the University of Auckland in the ‘Universitas 21’ consortium) as representatives of similar-sized research-led institutions, we can see that the initial contact with professional development requires more than simply attending induction workshops on teaching and learning. Birmingham requires staff to complete module one of its in-house Postgraduate Certificate in Learning and Teaching in Higher Education. The requirement is attendance at its Associate Program comprising an intensive five-day course (similar to Auckland’s three-day course) but supplemented with in-service activities and submission of formally assessed teaching portfolios. Upon completion of module one, staff can become an Associate of the Higher Education Academy (HEA). Birmingham staff with a substantive teaching role are encouraged to reach the status of an HEA Fellow by completing the second, longer module of the Postgraduate Certificate in Learning and Teaching in Higher Education.

At Nottingham University, academic staff with fewer than three years’ tertiary experience teaching in the United Kingdom are generally required to complete 30 credits on the Postgraduate Certificate in Higher Education (at this stage achieving HEA Associate status) within the first three years of their appointment. In addition to the assessed modules (15 credits each), staff are required to attend a two-day introductory event and a one-day conference. One difference between the Birmingham and Nottingham postgraduate certificate program is that the teaching portfolio is the capstone of the full 60-credit Nottingham certificate. Thus a staff member at Birmingham has to complete a teaching portfolio to meet the minimum requirements but only has to accumulate 20 credits, whereas at Nottingham there is no requirement for a portfolio to reach Associate status but there is the requirement to at least gain 30 credits. But one striking difference between New Zealand and the United Kingdom is the position of the HEA in overseeing and validating the local certificate programs: no such equivalent organisation exists in New Zealand.

The Higher Education Academy has actively promoted national professional standards for teaching and learning. In 2006 the HEA introduced the United Kingdom Professional Standards Framework for Higher Education. The Framework provides standards for initial professional development for teaching in higher education as well as continuing professional development. Four years later the Browne Report similarly emphasised the importance of initial teacher training and endorsed the role of the Framework in ensuring that individual institutions attain nationally recognised minimum standards. There now seems irresistible momentum for quality assurance based on a clearly identified need ‘for those undertaking teaching in higher education ... to demonstrate capability by being appropriately qualified, through, for example, the successful completion of a teaching qualification (i.e. a PG Certificate in Higher Education or its equivalent)’.

A recent survey of compliance with mandatory professional development for new teaching staff in the British university system indicates that the overwhelming majority of institutions which responded to the survey had imposed a requirement for new staff to successfully complete either all or part of a certificate program, with a few others expecting staff to engage with, but not necessarily complete, the program.

Recent articles in The Law Teacher provide testimony from recently appointed law staff at Bradford University of their initial reactions to mandatory professional development through a certificate program. The two viewpoints provided in the article by Lisa Cherkassky, Jessica Guth and Chris Gale neatly encapsulate the polarised views of new academics towards such programs. Lisa’s first reaction was a concern at losing valuable time that could otherwise be spent on preparing for actual teaching. As she had already obtained a formal teaching qualification, Lisa felt that completing the certificate would simply be ‘ticking an administrative box’. In contrast, Jessica was looking forward to the certificate program precisely because she did not have a teaching qualification and, despite some misgivings, was enjoying the opportunity to explore her existing interest in higher education policy in conjunction with her new interest in legal education. However, due to the other demands on her time, Jessica felt she was only able to ‘scratch the surface’ with many of the topics and took a strategic approach to doing the minimum to pass: ‘This was not because of any lack of engagement with or interest in the subject matter but simply a necessity that would allow me to get everything done’.

Given the overall benefits of mandatory longer term teaching and learning programs, it is submitted that New Zealand universities should similarly require probationary academics to undertake a minimum period of training and exposure to the scholarship of teaching. The proposed model is a five-year integrated program comprising three modules. The first should address the foundations of teaching and learning in higher education. This module should be compulsory for all newly recruited academics. The expectation would be that this module should be completed on a part-time basis over two years. The second and third modules should be optional. Naturally, encouragement should be given to those who wish to advance beyond the first module. To foster this, the compulsory coursework undertaken in the first module should count as a credit towards a postgraduate certificate in academic practice. The latter qualification would be awarded on successful completion of the second module. The third module should include a significant research project on an aspect of higher education learning and teaching. As an incentive, and in recognition of attaining this standard, a Master of Arts degree in academic practice should be conferred.

At the heart of the matter is the vexed question of professionalising university teaching. It is over 20 years since Ernest Boyer, in Scholarship Reconsidered, questioned whether or not university teaching was, ‘a routine [scholarly] function, tacked on, something almost anyone can do’. Lecturers have professional identities as academic researchers and in many cases, such as law, professional experience in their chosen field. These can be accounted for through acquisition of higher degrees or membership of professional associations. However, with higher education teaching the professionalisation process is not so clear cut, membership of the HEA notwithstanding. Research on the development of teachers in higher education indicates that professional standards are largely acquired from diverse and non-formal sources: doing the job itself; one’s own experiences of being a student; and conversations with peers. These findings validate Becher’s emphasis on the importance of non-formal and non-intentional learning in the professions, reflecting the view that far more learning takes place outside formal settings. This being the case, how should new law lecturers be trained?

Certificate programs cater to a wide variety of disciplinary backgrounds. The obvious limitation is that individual lecturers may want to know how best to teach in their own discipline. This emerged from a survey undertaken by the United Kingdom Centre for Legal Education (UKCLE) and subsequent discussion workshops. In particular, workshops directed to the development needs of new law lecturers revealed that this group doubted that generic higher education teaching skills could be transferred to the teaching of law. It was considered that there was something fundamentally different about law teaching.

In considering professional development needs, it must be questioned whether the pedagogy of law schools stands on a different footing from other disciplines. Law, as a discipline, has a unique social, political and economic interface. And unlike most fields, its normative principles are enforced by organs of the state. The teaching methodology for law necessarily reflects its distinct focus. There has been debate as to the relevance of the ‘signature pedagogy’ found in law, the ‘Langdellian’ case method, as the bedrock of law school teaching in the 21st century. Nevertheless, this and other discipline-specific teaching methodologies are remarkably enduring and continue to influence the teaching experience in modern law schools.

While generic staff development training provides a core of transferable skills, it is submitted that the demands of law teaching require subject-specific pedagogical knowledge. This approach is reflected by the Higher Education Academy which has acknowledged that many teaching areas have distinct and defining features. To that end, HEA created a network of 24 discipline based subject centres to which it provided a range of services. Within this framework, the UKCLE was established to promote the development of learning and teaching in law at both academic and vocational stages. Unfortunately, due to budget constraints HEA funding to the Subject Centre Network was withdrawn in 2011 with the result that the UKCLE ceased operations on 31 July 2011.

Although law training can schematically be divided into academic and vocational stages, both elements are evident in the structure and orientation of most law degrees. Such skills are underpinned by deductive and syllogistic reasoning associated with legal method. As Schauer notes: ‘Law Schools aspire to teach their students how to think differently – differently from ordinary people and differently from members of other professions’.

Moreover, there is increasing recognition of the social, moral and philosophical dimensions of law, particularly in its manifestation as a practising profession. While law degrees have historically had a clear theoretical bias, law schools today embrace a wider ethos that accommodates enquiry into the ethical and professional duties of practitioners and their role in the community. To that end the teaching of legal ethics has become an integral part of the law syllabus. This may in fact provide impetus for an understanding of law in a social context, albeit from a limited and selective perspective. In this regard it has, for example, been asserted that legal education within New Zealand law schools is profession-directed and profession-driven. However, the association comes at a cost. Keyes and Johnstone urge law schools to assert their autonomy in matters of curriculum, teaching and research, to ensure that the ambit of legal education is not distorted by the unrealistic expectation that all graduates require preparation for a life in legal practice. Indeed it is increasingly the case that law graduates will obtain employment outside the traditional realm of private practice and the Bar.

While the demands of law teaching are multifarious, the focus remains largely convergent and discipline-specific. Complementary skill sets are required for the delivery of law teaching in its academic, social and vocational aspects. Law teachers must be supported in this endeavour and this should be reflected in the content and orientation of discipline-specific continuing professional development programs. At the same time, such imperatives do not entirely eclipse the function – and indeed, desirability – of generic teaching support. Law teachers need multi-disciplinary skills and perspectives because, as noted above, many law graduates will never practise law. Teachers with a more general orientation may be better able to assess the wider implications of black letter law and prove more adept at introducing liberal perspectives to the law curriculum.

A salutary aspect of general teaching development programs is that they focus on the delivery of teaching and the nature of the learning experience. It is apparent that the quality of teaching is influenced by how, as much as what, a lecturer teaches. The fact that academic staff possess higher degrees affirms a level of understanding in their field without vouching for an ability to teach it. It is simply a question of due weight being given to the distinct applications and demands of law training. Beyond this there are undoubted benefits to learning about the art of teaching and its application across a spectrum of disciplines. To that end, generic training to a diverse cohort of teachers offers an opportunity for comparative insight and, with it, a sense of fraternity with those who share a common endeavour in the wider academy.

Quality assurance for teaching is central to the exercise of attracting and retaining students.

Finally, in considering the professional development needs of law teachers, it has been observed that there are unique features to the intellectual tradition of law and its interface with society and its institutions. Teaching programs of short duration in both the United Kingdom and New Zealand tend to be generic rather than discipline-specific. This reinforces shared cross-disciplinary values and provides a range of transferable skills. At the same time there should be greater emphasis on law-specific pedagogical training, to expose teachers to the distinct academic and vocational aspects of their discipline. This could most readily be accomplished if New Zealand universities adopt the proposed compulsory program, with advancement to higher stages on an optional basis. This aligns the scholarship of education with the distinct pedagogy of law. It is the best of both worlds. Or, expressed more colourfully, ‘It is being on the balcony and the dance floor at the same time’.