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Threat to Tenure at Law Schools

By Andy Guess
Inside Higher Ed
May 4, 2007

The American Bar Association — at the urging of some law deans and to the dismay of many law professors — is considering an end to having tenure systems be one requirement for law school accreditation. A special task force of the ABA has been working on a set of recommendations about accreditation and will not submit its findings until next month. But reports about what the group may recommend, and what law deans have urged it to recommend, have been circulating in recent weeks — and e-mail has been flying among law professors.

At a meeting of the ABA Accreditation Policy Task Force last week, a preliminary vote found by a slim majority that they should recommend that most if not all terms and conditions of employment should not be part of the requirements for accreditation, according to Gary Palm, a retired clinical law professor at the University of Chicago who is a former member of the ABA’s accrediting body and who was present at the meeting. While the vote is not by any means final and does not definitively suggest any particular outcome in the final report, it does signal the split of opinion on the task force and the direction in which its recommendations were at least recently headed.

Members will not comment on the deliberations of the task force, whose report is due on June 9 — along with a separate report by the minority, Palm said. But its recommendations to the ABA’s accrediting arm, the council of the Section of Legal Education and Admissions to the Bar, will be closely watched. The issue of employment is not explicitly mentioned in the original mandate of the task force, but outside groups seem to have placed it on the agenda.

For some time, the American Law Deans Association has been advocating that the ABA stop regulating the employment contracts of accredited law schools. Currently, tenure and academic freedom are mandated for regular faculty, along with protections “reasonably similar to tenure” afforded to full-time clinical faculty members, and measures to protect the academic freedom of legal writing teachers. Library directors and deans are also required to have tenure or tenure-track faculty appointments. The law deans’ association itself does not have a position on tenure, but it stresses the autonomy of law schools to formulate their own employment policies and the gains in innovation that would come through loosening the standards.

In a transcript of an open forum held by the accreditation task force in January, David Van Zandt, the dean of Northwestern University School of Law and president of the law deans group, read from a statement: “ALDA urges the task force to recommend that the council remove from the standards all references to terms and conditions of employment and urges that the council do so as soon as possible,” he said. “To our knowledge, requiring specific terms and conditions has no precedent in the accreditation standards of other educational institutions and programs and do not for very good reason.”

The forum was held at the annual meeting of the Association of American Law Schools, where on the same day the general membership of the law deans association had decided not to endorse the position of the organization’s board. The board has been criticized in the past for representing its actions as those of the entire body. “There are several members in ALDA who believe it is not nearly as representative as it should be,” said W. H. Knight, Jr., dean of the University of Washington School of Law in Seattle and a member of the board who believes the ABA should “limit the scope of its inquiries” in employment matters. “It looks as if all American law deans are subscribing to one particular position when that’s not necessarily the case.”

Others have even disputed whether statements made on behalf of the board represent all of the board’s members. On March 8, 2006, the former president of ALDA and dean of the University of Chicago Law School, Saul Levmore, sent comments “on behalf of the Board of Directors” of the group to the Department of Education voicing its concerns about the ABA’s accreditation powers extending to the enforcement of “terms and conditions of employment that are extrinsic to educational quality.” Van Zandt told Inside Higher Ed that it was a “unanimous statement of ALDA’s board of directors,” but at least one member said he does not recall a formal vote, and another said he doesn’t believe it was unanimous.

Some observers see the law deans group’s position as a strategic move to undermine tenure. “The public record certainly suggests that this position would erode the requirement protections of tenure, tenure-track status, and professional security that various legal educators currently hold under the accreditation regime that has been in place for many years,” said Michael A. Olivas, director of the Institute for Higher Education Law and Governance at the University of Houston Law Center and a former member of the ABA council who left to join the AALS executive committee.

Van Zandt said that wasn’t the case. “Sometimes some people portray this as an attack on tenure,” he said. “The real issue is whether or not you’re required to have tenure by an outside body such as the ABA. Not that we don’t want to have that institution.”

One reason that tenure defenders are skeptical of the law deans’ position is that its chief proponent has faced scrutiny — under the current regulations of the ABA — over his institution’s employment conditions. Among the standards in question were whether the Northwestern law school, where Van Zandt is dean, allowed its clinical faculty enough security as well as participation in governance and whether its law library director had a secure faculty position per ABA requirements. In November, the accreditation committee found the school in compliance with its standards but requested an update on the search for a new library director by May 1. Van Zandt would not comment on the status of the proceedings.

“I think ABA’s ruling on Northwestern and other schools just increased attention to” the employment issue, Van Zandt said. He mentioned the legal clinic, which was under review by the bar association committee, as an example of what ALDA was advocating. “We’ve grown a tremendous clinic here. Would we have been able to do that if we had to tenure everybody? Probably not.”

“I have to be a tenured person. That’s not right. A school could have a dean who’s a business leader or a lawyer who a school might not want to give tenure to, and they should be able to do that,” he added.

A number of groups — those representing clinical faculty and law librarians, for instance — have submitted documents in opposition to ALDA’s position on employment requirements as well as the Northwestern ruling. The president of the Clinical Legal Education Association, Paulette J. Williams, wrote to the ABA council in March that “under the committee’s ruling” on Northwestern, “a law school can have one-day, at will contracts that have academic freedom protections; however, this is not consistent with the ‘form of security of position reasonably similar to tenure’” outlined in the bar association’s standards.

Palm said the task force remained sensitive to protecting academic freedom generally, and to the “special problems” of clinical faculty. But he remained skeptical that they were the only ones who had to worry. “Regular nonclinical teachers should be concerned about tenure,” he said, implying that if accreditation would stop requiring tenure, schools would not want to keep it on their own.

The enhanced scrutiny of the issue comes at a time when the bar association is feeling pressure on other fronts as well, as it seeks to retain its Education Department recognition as the nation’s law school accrediting agency. Groups opposing affirmative action have criticized the accrediting organization for its diversity standards, while some smaller schools have sued because of what they say is insufficient accommodation in the ABA’s regulatory obligations. “This is the perfect storm of problems for law-school accreditation,” Olivas said.

But in the end, the debate boils down to how to preserve academic freedom. The law deans group tends to “sweep very broadly in terms of focusing not only on clinical faculty but on tenure per se,” said Jonathan Knight, who handles academic freedom and tenure issues for the American Association of University Professors. “They’re entitled to those views about tenure as a proper concern of the ABA; whether the ABA should be in the accrediting business is up to the ABA, of course, but for us, the argument that academic freedom can be ensured by other mechanisms besides tenure has proven to be very much incorrect.”

Pauline A. Schneider, the chairwoman of the task force and a partner at the law firm Orrick, Herrington & Sutcliffe in Washington, wouldn’t comment on the proceedings, but said, “We continue to work to address each of the issues that we circulated for public comment and input.”

Andy Guess

The original story and user comments can be viewed online at http://insidehighered.com/news/2007/05/04/abatenure.