So long, tenure. The American Bar Association's Council of the Section of the Legal Education and Admissions to the Bar has tentatively embraced two plans that would eliminate tenure as an accreditation requirement.
During a two-hour discussion on Aug. 9 about revising the ABA's law school accreditation standards, proposals to maintain existing protections for faculty tenure or to extend job protections to clinical and writing faculty found little support.
Instead, the council voted to proceed with proposals to drop the tenure requirement, although one variation on that idea would provide some form of job security for law school faculty.
Many council members argued that the existing tenure requirement for doctrinal faculty had driven up the cost of legal education and tied the hands of administrators seeking new ways of running law schools or to oust underperforming professors.
"The biggest financial issues we have right now are our fixed costs, and our fixed costs come from tenured, salaried professors," said council member Maureen O'Rourke, dean of Boston University Law School. "The solution is not to give everyone tenure, but to give no one tenure. Frankly, we don't need 200 law schools that look like Harvard Law School and value the same things as Harvard Law School. Somewhere down the line, the students got lost."
The council considered four options because a committee revising the accreditation standards could not settle on one. This issue has been the most controversial on its slate.
Option A would keep the existing system in place: The ABA would require tenure for full-time doctrinal faculty and clinical professors would have job protections comparable to tenure.
Option B would require law schools to offer some form of security of position for all full-time faculty, but that system could fall short of tenure. Schools could offer different job protections for different categories of teachers, such as clinical professors and writing instructors.
Option C would require some form of job protection—not necessarily tenure—with all types of faculty having the same protections.
Option D would represent the largest departure from the existing rules. Law schools would not have to offer a specific form of job protection, although they would still have to prove to the ABA that they could attract competent faculties.
The council quickly eliminated options A and C for lack of support. Option B earned the most votes in a straw poll, followed closely by D. The council then decided to send both B and D out for public comment before formally adopting one or the other.
No one outside of academia understands why tenure exists, argued Edward Tucker, a council member and accountant, adding that tenure offers a level of job protection unheard of in most other professions. Moreover, it's not the proper role of the ABA to require such an extensive protection for law professors, he said.
"If a law school wants to have tenure, that's their right," Tucker said. "But to have it as a standard for accreditation…interferes with the way things should be happening. As a requirement, I believe tenure screws the whole thing up."
Raymond Peirce, a partner at Nelson Mullins Riley & Scarborough and a former law dean, said law school administrators need more flexibility to manage their schools and faculty than the existing ABA rules allow.
The tenure system had its defenders—primarily law professors. But nearly all of the judges, practitioners and deans aligned to support stripping away existing protections.
Many of the tenure supporters argued that the system ensures law faculty have freedom to express their views in the classroom, outside the classroom and in faculty governance issues. That freedom could be compromised in the absence of tenure protections, they said. Those concerns are amplified among minority faculty members, said Cynthia Nance, a professor at the University of Arkansas.
"There is a great deal of concern about the voices that are divergent or dissenting, particularly about issue of race and diversity," Nance said. "Without some kind of security, some of those voices would be lost."
Clinical faculty—most of whom lack tenure because the ABA now only requires tenure for doctrinal faculty—often suffer political attacks for the cases they bring or decline to bring and are vulnerable to job reprisals, several council members argued.
"Access to academic freedom is really critical, particularly where we are trying to teach students how to practice law and how to be courageous about practicing law," said council member Jane Aiken, associate dean for clinical programs at Georgetown University Law Center.
Additionally, neither of the two surviving proposals would alleviate what is essentially a caste system between doctrinal, clinical and legal writing faculty, said Kate Kruse, director of clinics at Hamline University School of Law and president of the Clinical Legal Education Association. Under the existing system, legal writing instructors enjoy even fewer job protections than clinical faculty.
"I don't think they really understand the consequences of this decision for the politics of law schools," Kruse said following the meeting. "This entrenches the interests that already have power. It doesn't protect the people with the least amount of power in the institution."
The council could formally adopt one of the proposals during its next meeting in December, but all the revised standards still must be considered by the ABA's House of Delegates. That is unlikely to happen before the ABA 2014 annual meeting next August, said Barry Currier, the ABA's managing director for accreditation and legal education.
Even if the ABA changes its rules to no longer require tenure, many law schools still would maintain a tenure system. Some universities have their own tenure mandate, said law professor Michael Davis of the University of Kansas. Moreover, the ABA's proposed new rules simply represent the minimum job protections law schools must have, and don't limit schools from providing more, several council members said.
@|Karen Sloan, a reporter at The National Law Journal, an affiliate, can be contacted at email@example.com.