The committee updating the American Bar Association’s law school accreditation standards hopes to wrap up its initial review by the end of 2013, but the group remains nowhere near a consensus regarding job protections for law faculty—perhaps the most controversial item on its agenda.
The 14-member Standards Review Committee spent much of its most recent two-day meeting in Washington weighing the merits of three job protection and academic freedom proposals before opting to draft a fourth idea for future consideration.
"It was a very fulsome discussion," said committee chairman Jeffrey Lewis, a professor at Saint Louis University School of Law. "We want to have a full plate of options in front of us."
Rather than submit just one proposed standard to the ABA’s Council of Legal Education and Admission to the Bar, the committee likely will recommend one proposal but provide several alternatives so the council can decide whether it wants to maintain, increase or decrease job protections.
The committee’s approach has been a sore point for some legal educators since 2010, when former committee members interpreted the existing "security of position" standard to mean that having a tenure system had never been a requirement for accreditation, contrary to what many legal academics believed. That interpretation spawned fears that the ABA would erode job protections.
The committee has worked through a number of different draft standards since then.
The first idea essentially would maintain the existing standard—declaring that law schools shall provide for "tenure or a comparable form of security of position for full-time faculty." Clinical faculty would have "a form of security of position reasonably similar to tenure," but not legal-writing teachers. Some clinicians and legal writing instructors have argued that the existing rules have created a caste system.
The second proposal is to move away from any tenure requirement. Schools would afford all full-time faculty some form of security of position, but each would decide what system that would be. (The interpretation of the standard stipulates that schools at minimum must have a system of long-term renewable contracts of at least five years.) Schools could adopt different rules for different types of faculty.
"In this proposal, tenure is the safe harbor," said Barry Currier, the ABA’s managing director for accreditation and legal education. "You can go without tenure, but if you do, you have to prove that you are attracting and retaining a competent faculty and protecting academic freedom."
The third idea is similar to the second, in that some form of security of position would be required, although tenure would not mandated. However, schools would have to maintain the same system for all full-time faculty, including legal writing and clinical faculty. "That would be a big change," Lewis said.
But that proposal could open the door for a law school to do away with tenure for all faculty members rather than extend tenure to those who haven’t been eligible in the past, said University of Minnesota Law School professor Carol Chomsky, a past president of the Society of American Law Teachers.
"In a perfect world, we think that tenure is critical for academic freedom and participation in governance and that equal treatment across all full-time faculty would be a good thing," Chomsky said. "But you could end up with no tenured people."
In addition to the three existing proposals, Lewis said, the committee may consider a fourth alternative under which law schools would not be required to guarantee any security of position. He said he hopes that the committee would arrive at some sort of consensus during its next meeting in July.
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