Law school professors' tenure in danger?

The American Bar Association is moving ahead with changes in its accreditation system that faculty members fear could erode tenure protections for many professors and further weaken job security for clinical faculty members, many of whom don't have tenure to start with.

A special committee of the ABA last week released the latest version of proposed guidelines on academic freedom — just days before an ABA committee met Saturday to discuss (but not alter) the draft language. In the weeks before the draft was released, many faculty leaders had urged the ABA panel not to do the two key things its draft does:

• Remove language from the ABA standards that has been interpreted by faculty members as requiring law schools to have a tenure system. (The ABA panel that wrote the revisions now says that tenure was never a requirement and that it is removing references to tenure for reasons of clarity — although that interpretation of current policy is being met with skepticism.)

• Remove specific language requiring law schools with clinical professors and legal writing professors to offer them specific forms of job security short of tenure.

The ABA panel recommending the changes has stressed that the accreditation requirements still insist that law schools protect academic freedom, and that many law schools would not necessarily change their tenure or other job protection procedures. The report accompanying the most recent draft characterizes the protections for clinical faculty members that would be eliminated as "intrusive mandates" that "are not the proper providence of an accreditation agency and provide approved law schools with latitude and flexibility to articulate and implement policies to attract a qualified faculty and protect faculty academic freedom."

Many law professors think otherwise. They are angry not only over the recommendations, but the fact that the new draft came out immediately after so many groups had issued lengthy statements in favor of preserving existing protections. "They are trying to ramrod through an ill-advised proposal," said Michael A. Olivas, a professor of law at the University of Houston. The proposal is "the worst of all worlds, disguised as administrative tinkering."

Olivas is president-elect of the Association of American Law Schools, although he said he was speaking for himself, not the association. Many of the association's leaders, however, share his concerns. In recent weeks — just before the ABA committee came out with its new draft — a series of impassioned letters were sent to the panel. Robert A. Gorman, an emeritus law professor at the University of Pennsylvania, wrote to the committee that tenure was particularly needed for law schools.

"The research, scholarship and teaching of the law professoriate commonly deal with matters of public moment and controversy, more so than is the case in most other parts of the university; and the style of teaching is typically more challenging, argumentative and indeed on occasion confrontational," Gorman wrote. "Reliance on tenure as a buttress for academic freedom is thus particularly justified for law faculty."

After Gorman's letter circulated, another was sent endorsing it — by 11 other former AALS presidents, among them two former deans of the law school at the University of California at Berkeley and a former law dean at New York University (John Sexton, currently the university's president). The American Association of University Professors came out against changing the tenure protections. And the Clinical Legal Education Association has come out against the changes and the timing of the latest proposal. (Links to many of the letters opposing the changes can be found on the ABA site.)

With all these legal luminaries opposed to change, why is it going forward?

The push started several years ago, and was led by David Van Zandt, the dean of Northwestern University's law school. Van Zandt said at the time that characterizing the changes as an assault on tenure was unfair. He said that it was wrong for the ABA as an accrediting group to require a tenure policy — and that institutions should decide such matters. "Sometimes some people portray this as an attack on tenure," he said in 2007. "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."

After a period of some momentum, the move to change the standards stalled — but now is proceeding with the new draft.

The current policies say that for a law school to be accredited it must have "an established and announced policy with respect to academic freedom and tenure...." That language would be replaced — under the new draft — with this: "A law school shall have an established and announced policy with respect to the protection of academic freedom of its faculty members and shall provide procedures to ensure that its policy is followed...."

While the initial push to change the standards came from those saying that tenure was an inappropriate requirement, the new draft says that tenure was never really a requirement at all, so removing the reference to it doesn't change things in a material way. "[T]he current standards do not require approved law schools to have systems for tenuring of any or all of their faculty members and this draft retains this feature," the report says, adding that some have seen a tenure requirement as "implied" by the current language, but that this isn't really the case. "Interests of greater clarity and transparency require that the revised standards explicitly state whether or not schools must provide tenure rights and for whom on the law faculty. So, this draft retains, explicitly, the current policy that tenure rights are not required as a matter of accreditation policy," the report states.

It notes that there are numerous references to the importance of academic freedom and its key role in legal education.

While publicly the ABA leaders pushing for change say that they are not against tenure or law professors, supporters of tenure have noted a steady stream of criticism of law professors that emerges whenever the issue heats up. The National Jurist, a publication for law students, recently ran an article called " When Law Profs Slack, the Students Suffer." And that prompted coverage in a The Wall Street Journal blog: " Are Law Professors Just Plain Lazy?"

Olivas said that he believes that a small group within the ABA leadership "just doesn't believe in tenure" and wants to change the system. This is more than a little ironic, Olivas said, noting that ABA's leaders include judges and law firm partners — two categories of people who themselves enjoy a kind of tenure, the latter "tenure with real money."

He said that the declarations of support for academic freedom are empty. "Academic freedom doesn't anchor tenure. Tenure anchors academic freedom," he said. So the panel is recommending that academic freedom be preserved while "undercutting" the very system that has protected it.

Rights of clinical faculty

Another key issue in the changes concerns the rights of faculty who may not be on the tenure track — in law schools, clinical and legal writing faculty members are most commonly in this category. Clinical law professors run programs in which students are supervised as they take on legal cases — frequently on controversial issues — and law schools are regularly attacked over the choice of such cases.

Some lawmakers in Louisiana and Maryland pushed legislation this year to crack down on these legal clinics. In Maryland, a clinic at the University of Maryland offended the poultry industry by representing environmental groups. In Louisiana, the target was a law clinic at Tulane University that has done environmental work that angered business interests there.

The language that the ABA panel wants to remove from the requirements says that law schools "shall afford to full time clinical faculty members a form of security of position reasonably similar to tenure, and non-compensatory perquisites reasonably similar to those provided other full time faculty members."

Gorman, the Penn professor, said in his letter that removing protections for clinical law professors was a move in the wrong direction.

"Nor should it be necessary to explain that of all faculty categories, it has been the clinicians whose teaching — most especially, in the form of live-client litigation clinics — has placed them in the position that is most vulnerable to criticism and pressure (often of the most coarse and intolerable nature) from persons, corporations and legislators who are discomforted by the work of the clinic," he wrote. "It is precisely the clinical faculty member for whom academic freedom is a vital concern and not merely an abstract slogan, and for whom tenure provides a crucial guarantee that instruction can be carried out in the best interests of our students, and of the public."

Olivas said he was bothered by the way the current standards let law schools place clinical and writing faculty in a separate class, with some protections but not the same as tenured faculty members. He criticized the ABA for moving to end the limited protections these non-tenure faculty members have, rather than moving them to an appropriate equal status with other professors. "There should be no bright line distinction between the two" kinds of faculty members, he said. "If clinical education and legal writing are appropriate parts of legal education, they should have the same protections, the same resources and the same faculty governance and all the academic freedom that is provided, including tenure. They need it more."

A spokeswoman for the ABA said that it would take at least 18 months, should various association panels endorse the changes, for them to take effect.

(Published by USA Today – July 27, 2010)

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