Keeping Tenure Standards Alive

June 13, 2007

An effort to put a halt to tenure requirements for law school accreditation has stalled. The American Bar Association task force investigating the issue failed to come to a consensus and decided not to explicitly recommend any changes to current "security of position" standards, which require institutions to have some tenure system.

The 11-member Accreditation Policy Task Force, in its final report to the council of ABA's Section of Legal Education and Admissions to the Bar last weekend, recommended a number of changes, including more transparency during the accreditation process, a greater focus on "output measures" in evaluating law schools and taking potential costs of standards further into account.

But during discussions on the terms and conditions of employment, that consensus gave way to deep divisions between at least three different groups of members. One group, the report said, believed further study was necessary and recommended that a new committee investigate whether alternative standards designed to uphold academic freedom could be effective to ensure tenure. A second group believed the inquiry wouldn't likely result in better standards and that the dispute distracted from more pressing issues. It wanted to recommend preventing any "higher" standards and possibly removing specific requirements that have become obsolete. This option in effect would have preserved the link between tenure and accreditation.

The third group recommended removing "most if not all" standards governing terms and conditions of employment, with a specific focus on those mandating some form of tenure or tenure-like security. "This third group felt that any such changes in the standards should be combined with the creation of alternative mechanisms for protecting academic freedom for all faculty members, guarding against outside interference with advocacy by clinics, and ensuring adequate opportunities for active and responsible participation of clinical faculty in the governance of a law school," the report stated.

One person present at Saturday's open session in Charlottesville, Va., said the debate on the employment issue was "very heated." A straw vote at an April meeting of the task force narrowly supported abolishing most employment requirements for accreditation, and there was at least some indication that those in support of the move felt pressured to place themselves within one of the three positions outlined in the report. No one from the council pushed for a vote last weekend, although there is still significant -- and possibly just enough -- support for the movement to end regulations on terms and conditions of employment. (Several members of the council, which governs the ABA's section authorizing accreditation decisions, are also on the task force.)

Nevertheless, the members present decided not to make any decisions on carrying out any of the recommendations until the annual ABA meeting in San Francisco from August 9-12. The report concludes the accreditation task force's one-year mandate, and it is not likely that a new one will be appointed, so the August meeting will likely end the debate one way or another.

"By doing nothing they maintained the status quo, which is what I think the academic profession would have wanted to see. It’s a rebuff to this effort. It can’t be viewed as anything else," said Matthew W. Finkin, the Albert J. Harno and Edward W. Cleary Chair in Law at the University of Illinois College of Law and a consultant to the American Association of University Professors' Committee A on Academic Freedom and Tenure.

The ABA's standards currently require accredited law schools to provide "an established and announced policy" with respect to tenure for regular faculty while forbidding tenure quotas. Deans and law library directors must also have tenure or tenure-track positions, respectively, while clinical faculty and legal writing teachers must have similar reassurances of security -- such as a series of renewable fixed appointments -- although tenure is not required.

During the past year, members of the task force -- whose mandate originally did not mention the employment security issue -- raised concerns that the bar association's regulations violated law schools' autonomy in making their own decisions about how to safeguard academic freedom, and possibly precluded innovation, especially in legal clinics, that would not be possible without loosening the restrictions. This position outraged many law professors, who view tenure as essential to their academic freedom and feared that the task force had become a backdoor way for deans to attack tenure.

There have been several previous attempts to loosen the ABA's accreditation requirements for the terms and conditions of employment, and all have failed to make significant changes to its standards. The task force's report pointed out that most other accreditation agencies do not have similar mandates for tenure requirements but also noted that the legal profession poses unique risks to scholars without sufficient freedom from outside pressure.

Two members of the task force included dissenting statements at the end of the report. Randall T. Shepard, chief justice of the Indiana Supreme Court, tartly implied that the current rules have essentially remained unchanged since the AAUP's 1940 statement on academic freedom.

"For one thing," he wrote, "the stark requirements of the existing standards prevent new or relatively new law schools from attempting to demonstrate that quality faculty and academic freedom can be assured through methods developed sometime after 1940."

Despite the disagreements within the task force, the report, which was signed by all members, said all agreed that accreditation should preserve academic freedom and faculty quality. They also acknowledged that if they were beginning with a "clean slate," such standards would still be necessary but they might have been made more "direct and concrete."

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