Thursday, January 9, 2014

Law Schools and Tenure

Taxprof has posted a link to Karen Sloan’s article in the National Law Journal describing a panel discussion at the AALS Annual Meeting. The discussion, which drew a huge crowd, was about  the ABA proposal to eliminate its tenure requirement for law schools.

I was there, and was impressed that so many speakers were applauded for their stance that tenure should remain in the ABA Standards for Approval of Law Schools.

Currently, Standards 405(a) and (b) require:

(a)   A law school shall establish and maintain conditions adequate to attract and retain a competent faculty.

(b)   A law school shall have an established and announced policy with respect to academic freedom and tenure...

I did not speak that day, and probably would not have gotten any applause if I did. I do not think that accreditation standards should require a specific type of job security, and I believe that the ABA’s proposed changes should have very little impact, if any, on existing tenure systems. It is important to note that academic freedom and tenure are separate in the Standards, because they are separate things. Tenure is simply a contractual relationship between the institution and the faculty member. It does not guarantee academic freedom, and can mean different things at different schools. A private religious institution, or a for-profit law school, might define “cause for revocation of tenure” in a much more expansive way than a state university would.

Since law schools can and do define tenure in different ways, why should tenure itself be required in the Standards? Academic freedom for faculty is clearly a more important consideration, and the ABA will continue to require schools to have policies regarding academic freedom.

Furthermore, the proposed Standards do not prohibit tenure; they simply do not require tenure as the only way to create stability and security for faculty members. My university has no plans to move away from a tenure system, and I would bet that is the case for the vast majority of universities with law schools.

Maybe the real key to the discussion is Standard 405(a), which requires the school to create conditions to recruit and retain a competent faculty. When I was founding dean at the Charleston School of Law, my governing board did not want to have tenure. We were a stand-alone school, and they reasoned that they should be able to contract with our faculty in a way that best suited the goals of our institution. They argued that the Standards only required an announced policy regarding academic freedom and tenure, and that they could meet that Standard without actually granting tenure.  

I fought hard to have a tenure system. It was the biggest fight I had with the board in my time there. Aside from the 405(b) considerations, my primary concern was that it was going to be extremely difficult to attract good faculty members if we did not have plans to offer tenure. In fact, before we came up for ABA approval we lost a great faculty member (who is now a dean), because the founding board said it did not want a tenure system. In the end, the board approved a tenure-track that is very much like the tenure-track at most law schools.

That being said, if a school can attract and retain competent faculty members, and it offers job security and academic freedom, why should it be required to offer tenure as a matter of accreditation? We talk a great deal about innovation in our profession. Why are we so resistant to allowing other schools to try new ways of doing things, even if we would not choose the same path for our own schools? The proposed Standards simply allow that opportunity.

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