Calling In the Big Guns

Northwestern president asks colleagues to back law schools' push to end accreditor's requirement on faculty tenure.
March 2, 2009

The battle has raged for several years over the American Bar Association's standards on the hiring and employment of faculty members. On one side, many law deans have argued that the requirements represent unwarranted intrusion in their schools' affairs, and drive up costs.

On the other are advocates for some law school employees, particularly clinical faculty members and librarians whose status would be most likely to change if the standards were eliminated. They have portrayed the deans' campaign as an attack on tenure and the academic freedom that tenure exists in part to protect, an assertion the deans dispute.

Warring over the standards has steadily ratcheted up, with the American Law Deans Association pushing at various times to ask the Education Department to challenge the ABA's Council on Legal Education and Admissions to the Bar and, more recently, prompting the ABA itself to study this issue -- a review that is still under way.

Now the law deans appear to be raising the stakes -- by asking their bosses to enter the fray. Northwestern University's departing president, Henry S. Bienen, sent a letter to 130 college presidents whose law schools belong to the law deans' group, urging them to sign a statement requesting that the ABA council drop the standards related to terms of employment.

"The terms and conditions of employment offered to our faculty are within the exclusive province of our individual institutions," says the statement Bienen asked his colleagues to sign. "The ability of each of our universities to make those judgments and determinations is fundamental to our being able to offer flexible, responsive and innovative educational programs."

The statement adds: "We would welcome their replacement with reasonable standards that require our law schools to retain competent and dedicated faculty and that protect the academic freedom of all faculty regardless of the terms and conditions of their employment."

While Bienen's letter, like the entirety of the law deans' campaign against the ABA standards, relates primarily to the status of clinical law professors and librarians, critics note that, taken to its logical extreme, it could be seen as undermining the job security of all law professors. In addition, the Northwestern president's letter has raised hackles on his own law school's campus, where some professors are concerned that his stance will hurt Northwestern's ability to attract talented faculty.

John Elson, a law professor at Northwestern, wrote in a letter to Bienen this month: "When you announce publicly to your fellow university presidents that providing tenure-track appointments or long-term contracts to clinical law teachers would deny the Northwestern Administration 'the flexibility to adjust to changing demands and needs' and 'severely constraining ... our ability to be innovative,' the message to all faculty considering coming to Northwestern will be clear: the Northwestern Administration cannot be counted on as a reliable protector of faculty job security."

Not Anti-Tenure

Northwestern officials said that Bienen was traveling and unavailable for comment about his January 22 letter. Requests to Northwestern for information about how many of Bienen's colleagues had agreed to join the campaign against the ABA standards also did not garner a response.

But Bienen's letter, echoing previous statements by leaders of the law deans' group, insisted that the push to eliminate the ABA accreditation standard is not an attack on tenure, faculty job security or academic freedom. Rather, Bienen said, his and Northwestern's opposition to the ABA's standards stems from the accreditor's challenge to Northwestern law school's policy of not providing tenure or long-term contracts to its clinical law faculty, and its failure to give a faculty position to its law librarian. For several years earlier this decade, the ABA council deemed Northwestern to be out of compliance with its standards because of these policies.

After hiring an outside lawyer, Northwestern got the bar association to back down and accept "our contention that we provide protection for academic freedom for all faculty regardless of a faculty member's employment terms," Bienen wrote to his peer presidents. A panel appointed by the ABA council to study the question of the standard on "security of position" issued a report last year but did not resolve the matter.

The question is now part of a broader review of the ABA's accreditation standards, and it is in that context, Bienen wrote, that he asked his colleagues to help persuade the accreditor to stop regulating the status of employees. "[U]nlike any other accrediting agency I am aware of, the ABA Council incorporates into its standards required terms and conditions of employment for various employees, including clinical faculty, the director of the law library, and the dean. Specifically, accreditation may hinge solely on whether or not these individuals are provided with tenure or tenure-like security of position."

Such a requirement limits the ability of law schools like Northwestern to innovate, Bienen argued. "One of the reasons Northwestern has been successful in building and maintaining strong clinical programs is that we have had the flexibility to adjust to changing demands and needs," he wrote to his peers. "Had we had to offer tenure track positions or long-term contracts to all of our clinical faculty, we would have been severely constrained in our ability to be innovative. Notwithstanding our approach to hiring of clinical faculty, we have been successful in attracting and retaining top clinicians for the eleven different centers and programs we run at the law school. Furthermore, Northwestern has rigorously protected and defended the academic freedom of all its faculty, tenured and non-tenured alike."

Threat to Faculty Security

Because Northwestern has focused most of its enmity for the ABA's faculty-related accreditation standards on how they apply to clinical faculty members, most of the arguments made by supporters of the ABA standards focus on the need to ensure protections for those professors.

Even more than their mainstream colleagues who teach Constitutional law and study the history of torts, clinical law professors need the academic freedom protections of tenure because they "have often been in the midst of political controversies because many law school clinic cases involve public interest litigation that is at odds with the interests of significant donors or is politically unpopular," the Society of American Law Teachers wrote in a statement last year to the ABA committee studying whether to alter the security of position standards.

But the fact that many law deans -- and, at Bienen's urging, now some university presidents -- are now seeking to eliminate the ABA's standards on security for all faculty members poses a potential threat to professor of all stripes, Elson, the Northwestern professor, suggests. "Prudent faculty considering coming to or leaving Northwestern who recignize the administration's discontent with the constraints of tenure-like positions will naturally be concerned that they will be next in line for the sort of 'flexible' and 'innovative' treatment accorded Northwestern's clinical law faculty."

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