Proposals Outlined in ABA Special Committee Reports on Accreditation Standards Could Lead to Significant Reforms in Legal Education

The ABA's Section of Legal Education and Admissions to the Bar has released two special committee reports that could be influential in reforming legal education in the US, namely, Interim Report of the Outcome Measures Committee and Report of the Special Committee on Security of Position, and one report, Preliminary Report of the Special Committee on Transparency, that does very little to improve openness and accessibility in the accreditation process. Each report, summarized below, addresses issues and makes recommendations that could have significant consequences for academic law libraries and the practice of law librarianship in the legal academy if eventually adopted. Without a doubt, these proposals will become topics of conversation at AALL's annual meeting next month.

Interim Report of the Outcome Measures Committee (May 2008)

Noting that the US legal education system has lagged behind other professions in moving from input-based to output measures in the accreditation process, the Outcome Measures Committee recommends that the Section of Legal Education and Admissions to the Bar re-examine the current ABA Accreditation Standards and reframe them, as needed, to reduce their reliance on input measures and instead adopt a greater and more overt reliance on outcome measures because such a move (1) is consistent with the latest and best thinking of U.S. legal educators and legal educators in other countries; (2) would comport with the best thinking and practices of accreditors in other fields; and (3) would be a "long overdue course correction to bring the Standards and Interpretations" in line with the outcome-based terms set forth in the existing Preamble to the ABA Standards and Rules of Procedure for Approval of Law Schools.

The Committee writes:

[A] shift to an outcome-based approach will likely give rise to a number of new, complex issues in interpreting or applying existing Standards or Interpretations. For example, if the implementation of an outcome-based approach requires a faculty that is well-qualified to teach and assess students’ learning of professional skills and values, there may be significant implications for the existing Standards and Interpretations on attraction and retention of clinical teachers and legal writing teachers, which are currently the subject of study by the Special Committee on Security of Position. If the development of professional skills and professionalism gains a more significant role in the law school’s curriculum, we may be witness to an increase in the use of adjunct resources. If that is true, it may be appropriate to reconsider ABA Standard 402 and Interpretation 402-1 which limit the counting of additional teaching resources to 20% of the full-time faculty.

Notwithstanding these likely difficulties and costs, the Outcome Measures Committee believes that the time has come to move in the direction of an outcome-based approach in the Standards and Interpretations. This does not mean, of course, that such an approach should – or even could – be implemented all at once. Large-scale change is often incremental. If a new outcome-based approach is phased in, over a period of time, the enhanced use of outcome measures during the initial stages will produce data that can inform the ways in which outcome-based measures are framed and implemented in later stages.

Report of the Special Committee on Security of Position (May 2008)

The Special Committee drafted model job security standards and interpretions as replacements for Standard 206(c), covering deans; Standard 405 (c), covering clinical faculty members; Standard 405(d), covering legal writing teachers; Standard 603(d), covering law librarians, and Standard 405(b), covering all other faculty members, while protecting the interests that the current "security of position" provisions were designed to protect namely, academic freedom, attraction and retention of well-qualified faculty, and ensuring that law school governance decisions that can affect curriculum will have the benefit of the comments of sectors of the law school faculty whose knowledge and perspective otherwise might be unrepresented. In doing so, the Committee's "Alternative Approach" eliminates distinctions based on types of faculty positions, recognizes the importance of output measures in assessing accreditation compliance in this area, and, for the first time in the Standards, explains what academic freedom means.

Here's the language on the Committee's draft standards and interpretations:

Standard # 1. Academic Freedom

(a) To ensure the development of a sound educational program, a law school shall have an established and written policy with respect to the protection of the academic freedom of its faculty members and shall provide procedures to ensure that its policy is followed, including rules that prohibit the nonrenewable, denial of promotion, or loss of a faculty position unless a representative group of faculty agree that the determination is not a violation of academic freedom and that offer the affected faculty member the opportunity to present any claims to the faculty making that determination.

(b) A law school shall provide protection for the academic freedom of its full-time and part-time faculty in exercising their teaching functions.

(c) A law school shall provide protection for the academic freedom of its full-time faculty in pursuing their research interests.

(d) A law school shall provide protection for the academic freedom of its full-time faculty in pursuing their governance responsibilities.

(e) A law school shall recognize the academic freedom of its full-time faculty when exercising their right to make public comments outside the school.

Interpretation 1-1. The term "faculty" as used in Standards # 1-3 includes all individuals who have teaching and/or research responsibilities in the law school, regardless of their titles, their field of study, and any administrative responsibilities they may bear.

Interpretation 1-2. Any faculty position within a law school that is part of a traditional tenure system is presumptively one that is designed to protect academic freedom.

Interpretation 1-3. For full-time faculty positions in the law school that do not carry traditional tenure, the law school bears the burden of establishing that it provides sufficient protection for academic freedom. A school cannot meet its burden without presenting evidence of, at a minimum, explicit acceptance of the 1940 AAUP Statement of Principles on Academic Freedom and Tenure and its 1970 Interpretive Comments in any employment relationship with those faculty members together with an established procedure involving a representative group of faculty to review the performance of those faculty for appointment, renewal, and termination.

Standard # 2. Attracting and Retaining a Competent Faculty

To ensure the development of a sound educational program, a law school shall establish and maintain conditions that are designed to attract and retain a competent full-time faculty.

Interpretation 2-1. Any faculty position within a law school that is part of a traditional tenure system is presumptively one designed to attract and retain a competent faculty.

Interpretation 2-2. For faculty positions that do not include the possibility of a tenured appointment, the law school bears the burden of showing that it has established sufficient conditions to attract and retain competent faculty. In assessing whether the school has met that burden, the following may be considered:

1. evidence of faculty retention and success at attracting new competent faculty to those positions over a seven-year period;
2. evidence of a system ultimately resulting in eligibility for a separate form of tenure or for long-term, presumptively renewable contracts for the faculty members involved, including a process by which those contract renewals include the review and recommendation of other faculty and the development of standards by which the contract faculty members are assessed;
3. evidence of other perquisites similar to tenured faculty, such as those that offer faculty a role in institutional governance and that provide sufficient training and support to enable faculty to develop their talents and knowledge and thereby enhance their contributions to the educational program;
4. any other evidence relevant to showing that the school has established a climate encouraging the attraction and retention of competent faculty who are not in a traditional tenure-track system.

Interpretation 2-3. This Standard does not preclude a law school from having a limited number of fixed, short-term faculty appointments in a program or having an experimental program of limited duration.

Standard # 3. Faculty Role in Governance

To foster the development of a sound educational program, a law school shall ensure that all full-time faculty members are allowed to participate in law school governance involving academic matters, such as curriculum, academic standards, methods of instruction, and faculty appointments, so that the faculty has the primary responsibility for determining educational policy. Governing boards should exercise their power adversely to the faculty in these areas only in exceptional circumstances.

Interpretation 3-1. Any faculty position within a law school that is part of a traditional tenure system is presumptively one that accords an adequate faculty role in governance in the institution.

Interpretation 3-2. For faculty positions that do not include the possibility of a tenured appointment, evidence that those faculty members are afforded meaningful participation in faculty meetings, committees, and other aspects of governance exercised by tenured faculty generally may demonstrate compliance with this Standard.

Interpretation 3-3. This Standard does not preclude a law school from determining that faculty members not in tenured positions have limited voting rights on certain matters, such as faculty appointments.

The Committee took no position on recommending the implementation of the above model standards but noted four positive features and three areas of concern that need to be studied and considered before adoption of this Alternative Approach.

Positive Features:

"First, it makes clear the reason why the rules exist, thus fostering more transparency in regulation."

"Second, a functional approach allows greater flexibility to institutions to develop their programs and faculties in ways that meet the underlying objectives of the Standards and that may be deemed by them to best achieve their academic missions, but without necessarily conforming to one formula. In this way, the approach may encourage experimentation and foster the goal stated by the Accreditation Task Force of affording schools opportunities for 'innovation and uniqueness.'"

"Third, this approach does not distinguish between types of faculty positions. By stating the rules in this way, it may allow them to be applied to new types of faculty arrangements that may evolve in the future and thus avoid the need to change the rules to accommodate new positions or to make difficult decisions about who does or does not qualify for treatment under a particular faculty category."

"Fourth, this approach avoids the current appearance of inequity in the Standards insofar as the present rules accord different treatment to different faculty positions without any clearly stated reasons for the distinctions."

Issues for Further Study:

"First, bright lines or precise rules are easier to enforce and thus provide clearer guidance to law schools as to what is expected, as well as lessen the potential for unequal enforcement because they narrow the discretion of the Accreditation Committee in determining compliance. Thus, it was suggested that because the Alternative Approach is so different it might be dislocating to schools, at least in the short run, raising the question whether the gains are worth the cost. In particular, some noted that the categorical rules about specific subcategories of faculty that currently exist may have captured specific values or concerns related to those faculty that might be lost if the Alternative Approach were utilized."

"Second, the current rules evolved because earlier, general Standards language, albeit not the language of the Alternative Approach, had been deemed to exclude many faculty, causing problems in some law schools. It was noted that only through precise rules for faculty outside the traditional tenure-track had it been possible to force some schools to move forward in their skills programs. Thus, a question is whether legal education has now reached a point of recognizing the value of all faculty in ensuring a quality program so that the ABA no longer needs precise rule protections. If not, would adopting the Alternative Approach encourage law schools to return to a situation where some faculty members are more marginalized than others? Evaluating that risk was identified as an important inquiry before making any changes."

"Third, some felt it is important to consider the impact of abandoning specific faculty category rules on the relationship between law schools and their parent universities. . It was noted that university rules often have constrained law schools in their treatment of clinical and legal writing faculty. Some universities have had difficulties in valuing skills training as a legitimate part of higher education. Thus, if clinical and legal writing faculty are not specially protected in the Accreditation Standards, even if law schools generally have embraced skills training, some universities might pressure law schools that have merged many of those faculty into tenure-track or tenure-like appointments to retreat to less secure contract arrangements for those faculty."

Preliminary Report of the Special Committee on Transparency (no date)

In 2007, the Section of Legal Education and Admissions to the Bar's Accreditation Policy Task Force considered how the accreditation process should be structured and administered to assure appropriate transparency while also safeguarding confidentiality for any information and aspects of the process that should be confidential. In summary, the Task Force agreed that the accreditation process should be more open than they are today, and that the default position should be one of openness and accessibility. The Special Committee on Transparency's Interim Report leaves much to be desired. It dances around such issues as improving student involvement in the accreditation process and disclosing more information to consumers; it recommends looking into the possibilities of website improvements, instruction in the site inspection process, staffing, etc.

Specific Recommendations. The Committee recommended that unredacted accreditation decision letters and follow-up correspondence between a school and the Accreditation Committee be available prospectively on the Section's website, password-protected, to deans of approved law schools and, as determined by each dean, to other faculty members "for use in the accreditation process."

The Committee also recommended that the Standards Review Committee consider clarifying Standards 202 and 203 "soon" because "many schools do not appreciate the difference between the planning entailed in a strategic effort and the self-reflection and analysis required in a self-study. ... The situation is complicated by the fact that Standards 202 and 203 are not self-defining, and it is not clear what is expected in this area by the Accreditation Committee when it reviews a school."

[JH]