Real - Life Learning: Teach Students the Ways of the Adminstrative World
by
Casey Jarman

Much to my surprise, Administrative Law has become one of my favorite courses to teach. It tends to be a class focused on agency procedures and the political and legal interactions among the three branches of government. During the course, we address issues that arise in the context of such seemingly mundane and straightforward procedures as public notice, opportunity for comment, and access to public information; we also explore notions of agency capture, the role of the courts in both facilitating and checking agency power, social justice implications of how agencies carry out their business, and the role of lawyers in the implementation of agency agendas. While it is possible to adequately cover these issues in class using solely the standard casebook methodology, I have found that the public nature of agency decision-making makes this class ideal for sending students forth into the milieu of agency hearings to find out firsthand how the concepts they learn in class play out in the "real world."

In this article, I describe what has now become a standard (and increasingly popular) assignment in my Administrative Law class: requiring students to attend an administrative hearing of a federal, state, or county agency during the course of the semester. In addition to attending the hearing, students must prepare and hand in written testimony at the hearing; giving oral testimony is optional, but I encourage them to do so. They must then turn in a copy of their written testimony to me, along with a written report (see box below).

The students are responsible for finding a hearing at which the agency accepts written public testimony. Their report and copies of their testimony are due the last week of classes.

This assignment is typically worth 30 percent of the final grade. I weight the assignment this way to let students know that I consider this experience an important part of the course and to discourage procrastination. Because agencies often hold hearings irregularly, I strongly suggest to the students that they start looking for hearings early in the semester; doing so also gives them adequate time to research and prepare their written testimony. I put on reserve in the law library a handout on drafting written testimony, as well as examples of sample testimony. (Student questions to me on drafting testimony decreased about 75 percent once I started making the handout available.) Also, at a student's request, I will read and critique drafts of written testimony prior to the hearing; however, few students take advantage of this opportunity.

As the semester progresses, I check their progress by asking what, if any, hearings they have identified and encourage oral reports to the class once the students has attended a hearing. These oral reports illustrate the variety of experiences that can occur at an administrative hearing. Some attend controversial hearings with hundreds of participants and hours of heated testimony; others find they are the only ones at the hearing other than the agency staff. In the latter case, the students often engage the staff in a discussion after the hearing to gain a better sense of whether their experience is typical for the agency.

By having to attend hearings, students experience firsthand the frustrations and the benefits of agency process. They discover that hearings are often held at inconvenient times and in inconvenient locations with limited parking. As one student reported: "I arrived at the office about ten minutes before the hearing began. (I would have been there earlier if not for the frantic minutes I spent searching for a legal parking space in that part of Kakaako)."

Some students are surprised to learn that between the time they picked up the material pertinent to the hearing and the hearing itself the subject matter of the hearing was amended. For example, last semester two students prepared testimony on a permit to place a particular cellular phone service antenna at one location. They discovered at the hearing that both the configuration of the antenna and the placement had been changed without notice to the public. What appeared from reading the statute to be clear, straightforward requirements of public notice and opportunity for comment took on new meaning for these students.

Students also learn which agencies are helpful in supplying information to prepare for the hearings and which seem to view the public as an annoyance. The following student received an important lesson in access to public information while completing the assignment:

"Getting the information necessary to write my testimony proved to be a very educational experience. At the DLNR, a secretary or receptionist standing near the counter immediately asked if she could help. I told her the date of the hearing, the application number, and asked to see the public record. Seeming completely surprised and confused, she disappeared into the abyss of cubicles located in the rear of the office. Just as I began to think she was lost forever, she returned and informed me that someone would be with me shortly. After about five minutes, I was told by a gentleman that the application had been assigned to a planner, I think her name is Eileen, who was at lunch. I should wait 15 minutes and then ask 'someone' if she had returned, he said. I was very surprised and disappointed that information regarding the subject of a public hearing was not accessible during all business hours. Over the next 15 minutes, I saw two other women enter, stand at the counter, and wait to be helped. The three of us must have been invisible because neither the receptionist nor the other employees returning from their lunch asked if we needed assistance."

Not all students confront such uncooperative staff. Many are pleased when agency staff thank them for their testimony. Others would like to be more anonymous:

"An administrator for the Liquor commission told Kevin [another student] that we should sit in the front of the hearing room and submit our written testimony so it could be read into the record. The revelation that our written testimony would be read into the record sent waves of panic rippling through our group." [Six other law students attended the same hearing.]

Still others are dismayed when the agency makes a decision at the end of the hearing, obviously not having taken the time to read their testimony. As one student quipped: "So much for their responsibility to consider the whole record before making a decision."

All report that the experience, which some viewed with skepticism early in the semester, taught them valuable lessons that cannot be imparted in the classroom. I found the following comments by a student to be particularly compelling.

"I learned that I should have been prepared to testify even though the outcome was decided and there was nothing at stake. I kicked myself all the way home for not taking Commissioner Jervis' somewhat personal challenge to testify. The more I thought about it, the more embarrassed I was. The lesson here was that I was sloppy and too reserved. Even with the [seemingly] predetermined outcome, I should have used by best efforts to represent my school and myself. Concerned about my future as a litigator, I promised myself that from now on I would be better prepared and eager to present my arguments when asked."

If you believe, as I do, that clinical experiences can be a valuable addition to a standard law school class, I urge you to find opportunities in your community for students to experience the living, breathing reality of the concepts they are learning in the classroom. If so, you will find, as I have, that your teaching, the students, the law school, and the wider community will benefit.