CLEA Corner: Good News

CLEA President Alex Scherr reports on some important changes made by the Council on Legal Education and Admission to the Bar in the ABA Standards relating to security of position and participation in governance for clinicians:

Three CLEA members attended the decisive meeting of the Council in Santa Fe on June 18: myself as President; Susan Kay as Vice-President; and Margaret Martin
Barry as one of CLEA’s long-time advocates before the Council. The Council’s actions represent an important change in the language of some key interpretations. While these changes leave work to be done, we feel that they represent a solid and positive step forward for clinicians.

Specifically, the Council had before it two proposals to change interpretations to Standard 405(c), which requires that clinicians receive a form of security of position that is “reasonably similar to tenure”, and participation in governance that is “reasonably similar to those provided to other full-time faculty.”

The proposal for SECURITY OF POSITION, as sent to the Council, consisted of an Interpretation of the Standard that provided that a five-year contract, with no presumption of renewal at the end of the contract, would satisfy ABA Standard     405(c). This proposal, although an improvement over the Accreditation Committee's practice of viewing the Standard as satisfied by a three-year contract with no presumption of renewal, was very problematic because of the lack of any reference to a presumption of renewability.

        Instead of this language, the Council adopted the following
Interpretation:

        "For the purposes of this Interpretation, 'long-term contract' means at least a five-year contract that is presumptively renewable, or other arrangement sufficient to protect academic freedom."

Here's how the Council came to this result. A small but significant number of Council members picked up on CLEA's arguments about the need for protection of clinicians' academic freedom and argued that the proposed Interpretation did not go far enough in that it did not protect academic freedom by providing for a presumption of renewability.  Other Council members acknowledged the need for protection of clinicians' academic freedom but felt that Deans have to be
afforded flexibility in structuring clinical contracts so long as freedom from political interference is assured.  Still other Council members expressed reservations about mandating a five-year term given the comments the Council received that state law in some states prohibits a law school from offering contracts that are longer than one year.

In the end, there appeared to be a majority of Council members willing to build in a provision for a presumption of renewability and retain a five-year term as the norm. At the same time, this majority also recognized that state-law limits
on the length of a contract or other factors might warrant some other type of contractual arrangement if such an alternative arrangement could be shown to be adequate to protect clinicians' academic freedom.  At that point, a couple of Council members urged that the Council refrain from adopting the proposed language about presumption of renewability and protection of academic freedom and instead extend the process (by either sending the measure back to the Standards Review Committee for reconsideration or else sending the proposed language out for comment to the entire academic community for review by the Council at a much later time) but these proposals were defeated.  The Council then unanimously adopted the language quoted above.

Under the language as adopted, a five year presumptively renewable contract meets the Standards.  The Council confirmed during debate that a shorter-term, presumptively renewable contract would also satisfy the Standards, under the “other arrangements” clause. Other contractual arrangements might also satisfy the “other arrangements” language, but only if the law school could justify how those alternate contracts protected the clinician’s academic freedom. Finally, many Council members noted that the new interpretation provided grounds to address concerns about a school’s failure to protect a clinician’s academic freedom through the ABA accreditation process.

The Council’s debate thus shifted the basis of the discussion firmly towards concern for academic freedom. In particular, a group of Deans had written in opposition to the Committee’s proposed changes, indicating that the earlier proposals would ‘micro-manage’ law schools, and would in particular constitute
an unwarranted intrusion on a school’s ability to structure its own employment contracts. This group of opposing Deans had argued that clinicians’ concerns amounted to nothing more than special pleading for job security. The Council turned away from this formulation of the problem. Instead, the Council accepted that the view that protection of clinicians from political interference is a key justification for assuring them security of position.

In short, the clarifying language adopted by the Council reflects a substantial change in the landscape of ABA regulation of clinical security of position, and a solid victory for clinicians. For the first time, “presumptive renewability” or an alternative specifically consistent with protecting academic freedom constitutes the only way to provide clinicians with “security of position reasonably similar to tenure.” Moreover, the language sets a solid bar for length of term: it explicitly designates a five year, presumptively renewable contract as in compliance with the standard. A school must justify any “other arrangements” both against this length and stability of contract, but by reference to protection for a clinician’s academic freedom.

To be sure, work still remains, even under this new language. A five-year, presumptively renewable contract clearly satisfies the Standard; but questions will arise about what “other arrangements” will satisfy that same standard. During Council debate,  questions also arose about the strength and content of the presumption of renewal. The Council chose not to resolve these specific questions, leaving their resolution to the accreditation process and to future inspections.

In our view, this language shifts to law schools the burden of justifying their arrangements for security of position forclinicians, and in doing so they must reference protection of academic freedom. CLEA’s ABA Relations Committee and Board will now turn to planning how to address the issues raised by the new interpretation.

The proposal for GOVERNANCE RIGHTS, as sent to the Council, entailed an Interpretation that required law schools to give clinicians “participation in faculty meetings, committees and other aspects of law school governance . . . in a manner reasonably similar to other full-time faculty members.” This language replaced language that required only the “opportunity to participate.” The proposed Interpretation also contains no specific language with respect to voting rights. The tenor of the Council discussions was that clinicians should participate in voting to the same extent as other faculty members. However, the council chose not to mandate “voting”, out of a concern that it would be impossible to regulate all of the different ways in which schools arrange for voting for its faculty. The Council adopted this proposal without substantial debate.

CLEA had already taken a position in support of the Committee’s approach, and the Council’s adoption of the language without debate represents a separate, solid advance. Here again, work still remains, to assure that clinicians obtain full participation in the life of their schools.

Both of these new interpretations now go to the House of Delegates at the ABA Meeting in Chicago in early August. The House can either approve them, or send them back to the Council for reconsideration.  Given this, CLEA’s work is not done. CLEA’s ABA Relations Committee will meet within the next 10 days to consider the new language carefully, and to assess what approach CLEA should take towards the August meeting. I invite you to let us know your views about the new language, in particular to any member of the CLEA’s Committee, the membership of which is listed below.

I can’t end without expressing thanks to all those who played a role in moving these changes, and to highlight how CLEA’s work contributed to this result:

– In January, the CLEA Board acted quickly to make advocacy on these issues its top priority for the year.

–  Pursuing this charge, CLEA’s ABA Relations Committee formulated a position for CLEA that provided a firm and flexible basis for pursuing this result, throughout the spring and up to the evening of the Santa Fe meeting. Members of that Committee included Jay Pottenger, Margaret Martin Barry, Peter Joy, Gary Palm, Susan Kay, Antoinette Lopez, Michael Pinard,Paula Williams and myself.

– Various members of this Committee also attended all of the public hearings, speaking both publicly and privately to advance CLEA’s concerns, including Jay, Margaret, Peter, Susan, Gary, Antoinette and myself.

– CLEA’s efforts to rebut the rush of decanal opposition, led by Jay Pottenger, and pursued by many clinicians at some risk within their schools, proved of great value. During the Council meeting, Council members could successfully point to
the differences in opinion among deans about the proposed changes as grounds to consider a reworking of the Committee’s proposals.

– Over 300 CLEA members signed a petition in support of CLEA’s position in Chicago and shortly afterwords. The list of CLEA signatures appeared verbatim in the materials distributed to each Council member: over 10 pages of signatures from clinicians and clinical supporters across the country, the most numerous expression of individual opinion before the Council.

- The Society of American Law Teachers (SALT) acted quickly and decisively to help us, writing and hand-delivering a letter of support for CLEA in Chicago, stating its strong support for CLEA’s position.

Finally, the work of the Council’s Standards Review Committee deserves acknowledgment. CLEA sought more than the Committee was prepared to recommend. But the Committee proved able to resist the rush of opposition from deans earlier in the year, and to offer both proposals and commentary that laid the groundwork for the Council’s handling of the issues in Santa Fe.  In this context, the work of Martin Burke as Chair, Bob Dinerstein as Vice-Chair and Richard Neumann as a committee member is particularly notable.  The discussion of the proposed revisions was thoughtfully and clearly presented by Martin Burke in Sante Fe.