ABA COUNCIL ELIMINATES ANY MEANINGFUL SECURITY OF POSITION FOR FACULTY AND TURNS ITS BACK ON EXPERIENTIAL FACULTY

As reported last week here, the ABA Council on Legal Education met in San Francisco to review proposed revisions to law school accreditation standards.  The ABA reviewed four proposals sent to them by the Standards Review Committee (which I described in an earlier post here) and which were intended to address  faculty competence, academic freedom and governance rights.   The Council sent out for notice and comment two of the four proposals. Some commentators have suggested that one of the adopted proposals includes some security of position and the other does not. However, a closer look suggests that neither proposal affords any meaningful security of position.  see National Law Journal  

The alternative that mentions security of position states that:

(d) A law school shall afford all full-time faculty members a form of security of position sufficient to ensure academic freedom and attraction and retention of a competent full-time faculty (emphasis added).”

At first glance, I optimistically thought “Maybe ensuring a competent full-time faculty would require something beyond at-will employment?” However,  I was reminded by a professional colleague that this proposal is identical to the current provision for legal writing professors, which has been interpreted to permit at-will contracts as long as the teachers are “competent,”  Undeterred in my optimism, I thought “Well ensuring academic freedom certainly needs to ensure some job security especially for folks like clinicians who have been attacked repeatedly for representing the powerless against the moneyed members of our society, right?”  However,  the ABA interprets that same language  in the clinical context to permit one-year renewable contracts,  as long as the institution has a “policy” on academic freedom,

As Amy Poehler would say “Really!1?!  Really!?!”    Is that really the kind of job security that will fill you with confidence in advocating  on behalf of seemingly powerless clinic clients or articulating unpopular but important legal positions?   And what about all this talk from the ABA and the profession about how students need to be better prepared for practice and the profession.   “Really!1?!  Really!?!”  How is that going to happen when you de-value those in the academy who teach through supervised practice ?   CLEA President Kate Kruse got it spot on when she wrote on the clinic listserv,

“Because tenure is now and is likely to remain the norm only for doctrine professors, both of these provisions protect current faculty power relationships and threaten the presence in legal education of teachers specializing in experiential education.’

That is not good news for legal education, law students or future clients.  REALLY.

Four Proposals on Faculty Forwarded to Council on Legal Education

As readers of this blog remember, the July ABA Standards Review Committee (SRC) meeting was slated to be an important one. SRC actions taken with respect to the curriculum and program of legal education were discussed by Professor Michele Pistone last week here. In this post, I want to alert readers to the SRCs decisions regarding faculty competence, tenure and security of position, governance rights, and compensation and perquisites. I have read Karen Sloan’s National Law Journal article discussing the July meeting here. In addition, I reviewed the very helpful and thorough CLEA and SALT reports on the meeting submitted by Professors Claudia Angelos and Carol Chomsky here.

HOW FINAL ARE ANY RECOMMENDATIONS FROM SRC?

The CLEA/SALT report does a good job of explaining the process.

The Council of the ABA Section of Legal Education and Admissions to the Bar is the accrediting agency for JD programs in U.S. law schools. The Council’s Accreditation Standards, contained in the“ABA Standards and Rules of Procedure for Approval of Law Schools,” are subject to a comprehensive review every five years. The Council has delegated to the Standards Review Committee, an appointed committee comprised of legal educators and others, the task of recommending changes to the standards. After receiving a report and recommendation from the SRC, the Council asks for comment from interested constituencies on the proposed changes and then acts on the SRC’s recommendations…

The SRC’s proposals most notably include final recommendations on student learning outcomes and on faculty tenure, governance, and academic freedom (emphasis added). The Council will receive and discuss these recommendations at its next meeting, in San Francisco on August 9, 2013. After the Council considers and possibly amends these recommendations, they will be sent out for notice and comment by the public.

WHAT DID SRC DO AT THE JULY MEETING?

1.  Proposed eliminating the minimum faculty-student ratio requirement. As Karen Sloan in the National Law Journal points out,

The ABA committee reviewing the organization’s accreditation standards has voted to do away with the rule establishing a minimum student-to-faculty ratio. The panel reasoned that determining the true size of a law school faculty is just too complicated, given the number of adjuncts and non-fulltime teachers.

Law schools would still have to have enough faculty members to carry out their mission and comply with all the other accreditation standards, said Barry Currier, the ABA’s managing director for accreditation and legal education. But schools no longer would need to annually ensure they have at least one fulltime faculty equivalent for every 30 students.

Read more here.

2. The SRC also sent four proposals (A-D) regarding faculty security, academic freedom and governance up to the Council on Legal Education. The CLEA/SALT report states

All four alternatives contain provisions requiring law schools to adopt and adhere to policies that provide that all full-time faculty have academic freedom and “meaningful participation” in law school governance over mission and curriculum. They all require (in varying language) that schools have a comprehensive system for considering and making decisions regarding promotion, tenure, renewal of contracts or other forms of security of position, and termination. While there are some bedeviling details, the primary differences among the four alternatives relate to tenure and security of position for faculty.

MARY’S ANALYSIS:

The recommendations on Faculty must be read in conjunction with other recommendations in Chapter 4 and in other Chapters and can only be fairly viewed as part of an integrated whole. Moreover, the Council must use common sense and their experience of human behavior in deciding appropriate rules.

For example, Alternative D proposes no security of position (including tenure) for any faculty member. The only requirement is that a school demonstrate it can “attract and retain a competent faculty.” This proposal assumes one can ensure academic freedom (required elsewhere in the rules) without tying it to security of position. Now, in the abstract that may appear like a workable plan. But seriously, outside of academics, pundits and those who are so independently wealthy that security of employment matters little, where has anyone witnessed regularly an employee freely declaring, writing, and advocating on controversial or unpopular subjects and the advocacy having no bearing on one’s ability to keep one’s job, support one’s family and pay one’s bills?

In another example, the SRC proposals under Chapter 3 Program of Legal Education require law schools to focus more intently on student learning outcomes, experience-based opportunities, academic support for students, and preparing students for practice. This push was demanded by consumers, the economy, and the profession, and the proposed revised standards appropriately respond to those demands. However, that kind of teaching requires small class sizes, close supervision and multiple feedback opportunities. Yet,the SRC proposal eliminates minimum faculty-student ratio requirements. In addition, the student-learning focused activities encouraged by the standards will, in the real lives of faculty and students, compete with the ability to spend considerable time working on intense writing projects and pathbreaking scholarship. Thus, one would think that both activities should be, at the very least, equally encouraged and certainly there should be no DISINCENTIVE to focus on teaching rather than primarily focusing on scholarship. Yet, in all but one of the faculty proposals sent to the Council the standards allow for discrimination in security, compensation, and/or governance against many of the very faculty members who will be working most closely on student learning needs and innovative teaching.

If you care about legal education, about preserving academic freedom while updating law school teaching to meet the challenges of a global digitalized economy, be vigilant. As noted above, the Council considers these recommendations at its San Francisco meeting on August 9, 2013 and will soon send them out for public notice and comment.

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