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A group composed of 110 law deans is seeking to strip the American Bar Association of its power to determine which positions at their schools should be tenured. The American Law Deans Association (ALDA) has submitted a letter to the U.S. Department of Education calling for the removal of the American Bar Association (ABA)’s authority to control tenured positions among law professors, clinicians, library directors, writing instructors and deans themselves. ALDA has also hired a Washington law firm to represent it at a hearing before the Education Department in June. The deans’ letter reflects a concern among many law school administrators that the ABA’s accreditation requirements have become overly burdensome and restrictive. “It doesn’t mean that they should all drop tenure. It means law schools should be able to do what they want,” said Saul Levmore, president of ALDA and dean of the University of Chicago Law School. But Susan Kay, president of the Clinical Legal Education Association (CLEA), opposes the change. Kay, who is also associate dean for clinical affairs at Vanderbilt University Law School, said that the ABA has done a “tremendous job” of balancing the interests of all law school educators. Without the tenure protection of the ABA, she said, creative or controversial clinical programs at schools could be compromised. “It would become a market-driven system,” she said. The letter filed by ALDA is a response to the Education Department’s request for public comments regarding the authority of the ABA as the accrediting body for the nation’s law schools. The 21-member council of the ABA’s Section of Legal Education and Admissions to the Bar is the specific body empowered to grant or deny accreditation. Made up of law deans, faculty, attorneys, judges and laypeople, the council is in the process of seeking to renew its certification from the Education Department to retain its accrediting authority, a process it must go through every five years. ABA President Michael Greco said in an e-mail message through a spokesperson that the ABA had not received a formal copy of the law deans’ comment, but that the ABA will file a response before the Education Department’s certification hearings, which begin on June 5 in Washington. Responding to any comments outside the formal process would be “inappropriate,” the statement said. Expected to represent ALDA at the hearing is Michael Goldstein, a partner at Dow, Lohnes & Albertson in Washington. When ALDA filed its comment with the Education Department last month, Levmore also sent a memo to the group’s members, saying that the comment was submitted on behalf of ALDA’s board of directors. His memo said that while some deans may welcome the ABA’s “more stringent requirements with respect to terms and conditions of employment,” the filing represented the group’s majority view that the ABA should not determine which jobs are tenured. Included on ALDA’s 14-member board of directors are law deans at Harvard University, University of Pennsylvania, University of Michigan, Northwestern University and other top schools. Part of what prompted ALDA to file the comment, Levmore said, was a concern that the ABA’s accreditation has become increasingly influenced by “interest groups that make it their cause” to push for changes that benefit them. But Claire Germain, president of the American Association of Law Libraries, said that the influence her group has with the ABA is overestimated. “We don’t have, as an organization, so much power over the ABA,” said Germain, who is also the director of the library at Cornell Law School. Indeed, it is the law deans’ group-not clinicians and library personnel-that may hold too much sway over the ABA, according to CLEA. In August, CLEA submitted its own comment to the Education Department about its “particular concern for the role and influence of law school deans.” CLEA’s comment was written by the organization’s president at the time, Alexander Scherr, associate professor and director of civil clinics at University of Georgia School of Law. CLEA’s membership includes about 650 legal educators, mostly clinical education teachers. CLEA’s comment went on to say that it “has consistently noted the efforts of deans to lessen or eliminate the appropriate efforts of the [ABA] to assure full participation by clinical faculty in the life of the law schools and the future of legal education.” Growing divide? The law deans’ recent comment sent to the Education Department illustrates what may be a growing divide between the ABA and the law schools it governs. Although several individuals, including law school deans, university presidents and judges, wrote to the Education Department supporting the renewal of the ABA accreditation council’s certification, the ALDA comment represents a contrary contingent that is becoming increasingly vocal. “There is a dissatisfaction with the level of activity on the part of the bar association in terms of oversight,” said Michael Schill, dean of the University of California at Los Angeles School of Law. He added, “There’s concern that the bar association may be trying to influence schools in ways that are separate from the role that it is supposed to play in ensuring quality of education.” One of those concerns is that the accreditation standards create cost barriers for lower-tier and regional schools, which operate with far smaller budgets than more renowned schools. Critics contend that across-the-board standards for facilities, faculty and services are a hardship for smaller schools, which, despite perhaps being less attractive to potential students, are forced to charge high tuition to cover their costs. But John Sebert, consultant on legal education to the ABA, said that the standards do not include specific quantitative requirements. “We don’t, for example, force a small school to have a large library, and we accommodate flexibility in format,” Sebert said in an e-mail message. Another concern is the consistency of the accreditation process. In a comment sent to the Education Department in December, Southern New England School of Law Dean Robert Ward called for more objectivity and transparency in the accreditation process. The school has unsuccessfully sought accreditation since the 1990s. “[T]he ABA left us with the sense that we were trying to hit a moving target,” Ward wrote. In addition, CLEA’s comment in August to the Education Department expressing concern about the influence of law deans also asked for more transparency and fairness in the accreditation process. Sebert, however, said that the ABA takes “great pains” to make sure that the standards are applied consistently. He said that the ABA has just completed a three-year process to revise the standards so that they provide clearer guidance to law schools. “Despite those efforts, we do not claim to be perfect in attaining consistent application of those standards,” he said. “On the other hand, there also are substantial differences in the facts with respect to every school.” In ALDA’s recently filed comment, its primary assertion is that the accrediting council’s control over tenure is not connected to its authority under federal law to assure the quality of education at law schools. ALDA also argues that the tenure requirements “improperly intrude on institutional autonomy.” Although ALDA asserts that the ABA should not have a say in the terms and conditions for employment of all law school professionals, the groups’ comment focuses on tenure for clinicians and library professionals. Regarding clinical professors, ALDA’s filing states that the ABA’s requirement of tenure or long-term contracts for these professionals leads to fewer appointments and limits the development of new clinics at a time when more schools are trying to implement such programs to provide more practical education for their students. Clinical programs at law schools have increased dramatically since the publication of the MacCrate Report in 1992, the result of an ABA task force formed to address the gaps in legal education and practical skills. Since the report’s release, more law schools have implemented clinics to assist the indigent in routine legal matters. And in recent years, law schools have established more creative programs that focus on transactional practice, patent law, securities work, gender issues, gay and lesbian matters and more. ALDA’s comment to the department asserts that the long-term employment requirement for clinicians is leading to fewer unconventional clinics because law schools want to avoid “locking themselves into commitments that are not in the long-term interests of the school.” But Kay, with CLEA, asserts that the ABA’s standards for clinicians protect schools from political interference that controversial programs may attract. She further argues that allowing each institution to set its own terms and conditions of employment would be especially detrimental to controversial clinics in state schools, where political pressure could be more acute. With regard to law library directors, ALDA maintains that the ABA’s authority to require law schools to grant tenure to these employees amounts to an “abuse of power” by the ABA as an agency of the U.S. government. ALDA asserts that the ABA has translated the advocacy of the American Association of Law Libraries, a group of about 5,000 library professionals, into prescribed conduct by requiring that law librarians be eligible for tenure. Germain, president of the American Association of Law Libraries, said that ALDA’s comment does not take into account the fact that most law librarians also teach research or substantive courses. She added that giving tenure to library directors is directly related to the quality of education. “If you take away tenure, you take away the incentive for schools to think long and hard about hiring decisions,” she said. The Education Department hearings are scheduled for June 5 to 7.

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