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Law Deans Criticize Their Accreditor

April 21, 2006

It seems to be open season on accreditors, at the macro and micro levels. Nationally, the federal commission reviewing American higher education is closely scrutinizing the role accreditation plays in ensuring the quality -- or not -- of colleges and universities. And as the American Bar Association's accrediting arm seeks U.S. Education Department recognition to continue overseeing the nation's law schools, it is taking shots from all sides.

First, several groups that oppose affirmative action have blasted the bar association's Section of Legal Education and Admissions to the Bar for diversity  standards that the critics say would force law schools seeking ABA accreditation to commit to giving admissions preference to members of minority groups. (Officials of the ABA say the rules allow but do not require law schools to consider race in admissions.)

Now the ABA's accrediting section is being challenged by some of its own: the heads of many prominent law schools. The Board of Directors of the American Law Deans Association, which was established in part out of concern about overregulation of law schools, has urged the Education Department to challenge ABA standards on the hiring and employment of faculty members that it says "are not only extraneous to the process of 'assuring the quality of [legal] education,' but also that improperly intrude on institutional autonomy in seeking to dictate terms and conditions of employment."

Specifically, the letter from the deans' association's board -- which includes representatives of such leading law schools as those at Cornell, Duke, Harvard and Northwestern Universities and the University of Chicago -- questions a set of ABA requirements that dictate that law deans, law school library directors, and faculty members in law school clinics should be granted tenure or longterm contracts that provide a form of security and academic freedom equivalent to those ensured by tenure.

"Professional organizations can be expected to advocate job security for its members. And it is certainly within the discretion of a law school to decide whether to adopt such a policy," the law deans wrote in their letter to the Education Department. "But it should not be within the realm of an accrediting organization, certainly one bearing the imprimatur of the Secretary of Education, to translate advocacy for specific economic terms into prescribed conduct. This is an abuse of the power that the accrediting agency has secured by means of its governmental recognition."

The deans' group says the department should require the ABA to prove how the employment requirements ensure the quality of the education provided to students, and "require the ABA to revise or rescind these standards prior to granting continued recognition." The department's National Advisory Committee on Institutional Quality and Integrity, which is responsible for granting approval to accreditors to operate, meets June 5-7 to consider the ABA situation.

Saul Levmore, dean of the University of Chicago's law school and current president of the deans' association, said the group's letter should be viewed in a larger context of unhappiness with the role that professional and specialized accreditation can play in dictating how institutions behave. By imposing common standards on a set of institutions, he said, accreditation can act as a "barrier to entry" to new players in a field and can impose an orthodoxy that can limit experimentation. "I believe that not every law school needs to be the same, and accreditation tends to produce homogenization," said Levmore.

Officials at the ABA declined to comment on the law school deans' letter, saying that to do so would undermine the process that the Education Department has in place.

A spokeswoman for the bar association, Nancy Slonim, said the group would respond to the deans' group through that process, and that any other comment would be "premature."

But some others have criticized the deans' group. Some bloggers and other commenters have noted that the letter to the Education Department appears to represent the deans' group and all its 110 members, when the members themselves never had a chance to vote on its content. In an interview, Levmore said that the subject had been discussed at the group's annual meeting last year and that the group's leaders made it clear that they planned to head in this direction. "Many people were favorable," Levmore said, though he acknowledged some opposition.

Representatives of the groups whose tenure the letter from the deans' association appears to target -- clinical educators and legal librarians -- have also objected to the deans' approach. Eliminating tenure or tenure-like protections, they said, could discourage law schools from starting or keeping potentially creative or controversial clinical programs.

Even some law deans who support the position taken by the law deans' association took issue with the way it raised the issue. Leonard P. Strickman, dean of Florida International University's College of Law, said in an e-mail message that the ABA should not be dictating employment standards and that the "most important virtues of tenure can be addressed by standards relating to the protections of academic freedom without reference to terms or conditions of employment."

But he said he had "some concern with ALDA's decision to take this argument to the U.S. Department of Education before trying harder to win the case within the ABA."

 

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