In a previous post, I discussed the proposed changes to ABA standards with regard to academic freedom and faculty security of position. Several faculty members privately e-mailed me to provide context and correction to my explanation of the proposed revisions to ABA standards and the underlying assertion that tenure is not “mandated” by the current standards. And I am very grateful that they did. This is a very serious area of concern and controversy.
Respected law professors who have long followed accreditation efforts informed me that the assertion about current ABA standards – that they do not require tenure – is a recently created argument. Standard 405 (b) requires law schools to have an established policy for tenure (why would a school have to have a policy if there was not tenure granted) and references the 1940 aaup policy, which clearly states that tenure is the appointment that is necessary. In fact, prior to the adoption of 405(c) or (d) or (e), the ABA annual questionnaires only listed 2 categories for full-time faculty – “tenure” and “tenure track,” never expecting anything else.
Another professor, Professor Richard K. Neumann of Hofstra, reported “It’s a recently created myth that tenure is not required by ABA Standard 405(b). When I started doing site inspections in 1994, everyone involved believed that the standards required tenure systems and clearly stated policies controlling those systems. People would have been flabbergasted then at the idea that the ABA would permit a school to have a policy that read: ‘This school does not award tenure to anybody.'”
Neumann also informed me that in 1999, the Standards Review Committee recommended abolishing 405’s requirement of a system of tenure. He tells me that “SRC framed its recommendation that way, and the Council debated it that way. I attended the Council meeting as an observer when this was debated. On the Council, Herma Hill Kay (Berkeley) was the leading advocate for retaining 405’s requirement of a system of tenure to protect academic freedom. Bob Walsh (Wake Forest) led the anti-tenure faction, arguing that for every instance of tenure protecting academic freedom, there were ten more of tenure protecting sloth. This was a good-natured discussion, but the views were deeply felt and expressed. Everybody in the room called the factions ‘the friends of Herma’ and ‘the friends of Bob.’ (When the vote was taken, Herma’s friends won.) The entire discussion was about whether schools should be required to have systems of tenure. Everybody in the room believed that 405(b) requires schools to do so. That’s what they were arguing about. ”
Neumann continued “The first year I was on SRC (2003-2004), a committee member made a motion to strike 405(b) from the standards on the ground that a school should not be required to have a system of tenure. The committee discussed it entirely in the belief that 405(b) does require every law school to have a system of tenure. SRC decided again to recommend to the Council that the Standards no longer require a school to have system of tenure. I was not at the Council meeting that rejected that recommendation, but the Consultant and Deputy Consultant at the time reported back to us on SRC that the Council rejected the recommendation in a matter of minutes on the ground that they had decided this issue only a few years before. Again, everybody involved understood 405(b) to require that a law school have a system of tenure.”
Neumann provides a second reason: internal interpretation of the Standards. “If 405(b) does not require a system of tenure, then 405(c) and 405(d) would never have been adopted. If 405(b) does not require tenure, then clinicians and legal writing teachers are the most protected people in legal education and doctrinal teachers the most vulnerable. If 405(b) does not require tenure, a school could hire every doctrinal teacher as an at-will employee, but it would be required to give some job security to clinicians and legal writing teachers. (Could the drafters — most of them doctrinal teachers — conceivably have intended that?)
Moreover, another Standard — 206(c) — requires that deans have tenure. A school can comply with that Standard only by having a system providing for tenure. That would be the system of tenure that 405(b) has always been understood to require.
Some elementary concepts of statutory interpretation are being ignored when 405(b) is claimed not to require tenure. Statutes are to be interpreted on the premise that the legislature is not loopy. A statute is to be interpreted as a whole and not by pulling wording out of context. Statutes are to be interpreted so that their parts are internally consistent.”
Professor Neumann’s historical and statutory analysis is sound and supported. Thus, it seems that the current proposals incorporate revisionist history. Revisionist history substitutes poorly for real debate about appropriate standards for accrediting law schools. It not only creates mistrust and suspicion about alternative agendas, but it thwarts collaborative and creative efforts to improve legal education and its institutions.
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