American Bar Association in Chicago. (Photo: Diego M. Radzinschi / NLJ)
The always-controversial matter of law faculty tenure will be back in the spotlight on Friday and Saturday, when the American Bar Association’s Council of the Section of Legal Education and Admission to the Bar is scheduled to consider the issue and several other hot-button topics at a meeting in San Diego.
The ABA is in the final stages of a six-year comprehensive review of its law school accreditation standards, and the council is under pressure to reach decisions on a number of touchy matters—not the least of which is whether to get rid of the standard that is understood to mean that law schools must maintain a tenure system for professors in order to be accredited.
“Our goal over our March and June meetings with respect to the Comprehensive Review of the Standards is to finish our work and bring the review to a conclusion,” wrote council chairman Solomon Oliver Jr., chief judge of the U.S. District Court for the Northern District of Ohio, in an organizational memo to the rest of the council.
The council is aiming to have all of its proposed changes in place in order for the ABA’s House of Delegates to consider them at its annual meeting in August, Oliver wrote. The council will meet one more time before then, in June.
In addition to tenure, the meeting agenda includes discussions on:
• Maintaining the minimum bar passage standard. After years of back-and-forth between different proposals, the committee tasked with going through all the standards is recommending no significant changes to the current rule, which requires 75 percent of a law school’s test takers to pass the exam within five years of graduation.
• Dropping the ban against students receiving both pay and academic credit for legal externships. The committee was divided on the issue, but has recommended doing away with the restriction in order to open up more externship opportunities.
• Increasing the number of experiential course credits law students must complete. The current requirement stands at just one credit, but the committee has recommended increasing that to six credits. Meanwhile, a vocal group of clinical professors have asked the council to adopt a different proposal that would require 15 credit hours of clinics, externships, and simulation courses.
• Keeping the requirement that law schools must use the Law School Admission Test in admissions. The committee had earlier discussed ditching the LSAT mandate, but later backed off that plan.
• Doing away with the requirement that law schools maintain at least one full-time equivalent faculty member for every 30 students, on the grounds that calculating the actual size of a faculty is overly complicated.
Some of the accreditation standards proposals are up for final action, while others will only be put out for notice and public comments following the meeting. The tenure matter has already gone out for public comment, however, and this could be its last consideration by the council, said Barry Currier, the ABA’s managing director of accreditation and legal education.
The council is weighing two different tenure proposals, both of which would do away with any requirement that schools maintain a faculty tenure system. The first proposal would require all full-time law faculty to have some form of “security of position” that protects academic freedom, but that does not necessarily have to be a tenure system as traditionally understood. The second option would eliminate any reference to security of position, but would require schools to provide job protections sufficient to attract a competent faculty. Tenure would be considered a “safe harbor” with either option, but would not be mandated.
The ABA has received more comments on the tenure matter than any other issue under consideration. Oliver heard an avalanche of opposition to both proposals when he attended an informational session at the Association of American Law Schools’ annual meeting in New York in January. Law professors lined up at the microphone to credit tenure with protecting their academic freedom in and out of the classroom. Proponents of the proposals counter that no other graduate school accrediting bodies mandate tenure, and that schools need more flexibility in staffing in order to reduce tuition. Oliver told those at the AALS that he and the council would consider their comments.
Finally, the council will also consider a change to its internal procedures, requiring a comprehensive review of the accreditation standards only every 10 years, rather the current five. The current review has stretched on since 2008, meaning a new review would need to begin very soon without the proposed rule change.
“There is a need to figure out how the changes will be rolled out,” Currier said. “While the new standards will be effective upon concurrence of the ABA House of Delegates, some of them will require time for schools to do what they need to do to come into compliance. We will be working on the transitional issues and timing once we know what the final outcomes are from the Council.”