Should the American Bar Association require law schools to maintain a tenure system?

The committee reviewing the ABA’s accreditation standards doesn’t think so. It has floated a proposal that would eliminate the term “tenure” from the ABA standards covering job security and academic freedom. The committee also wants to kill a requirement that law schools provide clinical faculty members with job protections similar to those enjoyed by full-time professors.

Organizations that represent law professors and clinical faculty have lined up in opposition to the changes. They argue that tenure is key to protecting academic freedom and maintaining high quality legal education.

“The security that comes with tenure is the only way to ensure that faculty will remain free to teach, research, participate in governance decisions, and speak on matters of public concern without fear of reprisal,” reads a letter that the Society of American Law Teachers (SALT) has submitted to the Standards Review Committee. “Changing the accreditation standards to weaken the requirements regarding tenure would have enormous and unfortunate implications for the quality of legal education.”

The ABA subcommittee examining job security and academic freedom has concluded that the existing standards don’t require law schools to maintain a tenure system in the first place, despite interpretations to the contrary. The standards say that “a law school shall have a comprehensive system for evaluating candidates for promotion and tenure or other forms of security of position….”

The proposed standards would clarify that law schools are not obligated to offer tenure but make clear that schools must protect academic freedom, according to a note from the subcommittee that drafted the new rules.

Standards Review Committee Donald Polden, dean of Santa Clara University School of Law, said that critics have rushed to judgment and that the committee still has months of work before it will produce a final draft.

“There have been a few people who have argued that what we are doing is an attack on tenure,” said Polden. “The reality is that the current standards do not require law schools to have tenure.” He noted that the authorities that accredit medical schools and pharmacy schools do not require tenure.

SALT members would like to see job protection for faculty expanded rather than rolled back, said past president Carol Chomsky, a professor at the University of Minnesota Law School. “It’s not enough to say, ‘We’re protecting academic freedom.’ The existence of tenure is critical in enforcing academic freedom for faculty.”

The subcommittee also would strike a requirement that law schools afford clinical faculty and legal writing instructors “a form of security of position similar to tenure.” Clinical faculty and legal writing instructors are not eligible for tenure at many law schools.

“These arguably intrusive mandates are not the proper providence of an accreditation agency,” the subcommittee wrote.

Clinical faculty are abuzz over the proposed changes, said Claudia Angelos, a clinical law professor at New York University School of Law and a member of the board of directors of the Clinical Legal Education Association (CLEA).

“It’s a subject of great concern,” she said. “The concern, at the heart of it, is about the future of legal education, and the importance of what we do and the quality of legal education. We worry about the stature of the work we do and the ability of our peers at law schools to participate in the discussion.”

The fight over law school tenure has been bubbling under the surface for years. The American Law Deans Association in 2006 submitted a letter to the U.S. Department of Education calling for the removal of the ABA’s authority to control which positions should be tenured, arguing that its requirements have become overly burdensome and restrictive, not to mention costly.

The issue was thrust back into the spotlight this month when the ABA subcommittee released its draft changes. The timing of the release — which was made public three days before the larger Standards Review Committee met last weekend to discuss numerous proposals — prompted some criticism. CLEA President Robert Kuehn in a letter called the timing “troubling” because it left little opportunity for people to submit comments before the full committee took up the matter.

The full committee discussed the tenure proposals last weekend but took no action. No final action is expected before 2012.

Angelos said that the discussion of the proposals during the weekend meeting was underwhelming. “None of the conceptual issues were discussed at all,” she said.

Polden said that the committee did not intend to spur a public hearing when it released the draft proposal.

“This was just a draft for the committee members,” he said. “It’s a long, long process.”

Karen Sloan can be contacted at ksloan@alm.com.