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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