The Attack on Tenure: Downwardly Mobile Professionals

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Written by:  Deborah Post

The economic crisis has eroded the middle class as government downsized along with private employers.  Middle managers are willing to work for less because they realize that they, like their blue collar counterparts, are living in a world of massive unemployment, under-employment, part time employment, and contingent employment.  There is almost no segment of the U.S. economy where employees from middle management on down has not had to adjust his or her expectations.  Despite the predictions/promises that health care and education were recession proof, the truth is that colleges and universities for some time have been staffed in large part by contingent employees.

Teachers, along with civil servants and all manner of government employees, have been the backbone of the middle class in the United States.  Until now law teachers, with salaries that reflect not just the time spent obtaining an advanced degree, but the value placed on legal services or skills by a small segment of the market or because of the revenues generated by the law schools, have occupied a privileged position within the academy.  While we may not have been paying attention while the AAUP was complaining about the injury sustained by faculty who now are contingent faculty, we need to pay attention now.  We may soon find ourselves in the same precarious economic and political situation as faculty in other academic departments if the Association of American Law Deans (ALDA), and its agents in the American Bar Association, have their way.

Two years ago, soon after I began my first year as co-president of SALT, an ABA Special Committee had just completed a report on security of position.  I had a chance to read the report and, of course, I was involved in the preparation of SALT’s response to this report.  The year before there had been an Accreditation Policy Task Force which issued a report in 2007.  In fact, the issue of tenure has been in play for several years. In 1994 Pace Law Review published a symposium on tenure and I had an article in that issue: Critical Thoughts About Race, Exclusion, Oppression and Tenure, 15  Pace Law Review 69 ( 1994).

There is a difference, however, between discussion of the abusive practices in the system or awarding tenure or the abusive practices of tenured faculty and a concerted political campaign to eliminate tenure or job security for faculty.  Success in such campaign is now virtually guaranteed because the proponents of change have virtual control over the institutions that regulate legal education.  But I am getting ahead of myself.

In the summer of 2008 a special committee drafted rules which provided an alternative to tenure.  The committee was not in favor of the abolition of tenure, or rather they could not reach consensus on that issue but they drafted the alternative rules because they were asked to do so.  The committee explicitly refrained from recommending this alternative approach.  There was good reason for refraining as they noted that there had been no notice or public hearings on the proposal.   The committee properly concluded that it could not recommend this alternative approach to the Council, but it did recommend that the report be forwarded to the Standards Review Committee (SRC). SALT opposed the referral but the Council sent it on anyway.

Two years later, in a report that was withdrawn almost immediately after it was issued, the subcommittee of the SRC issued new rules on security of position.  There were two things which were surprising.  One is that the report as it was originally issued misrepresented the earlier committee report on which it relied.  See letter from CLEA President   Even more spectacularly,  it began with an announcement that tenure was not required under the current accreditation standards.

The fact that the entire battle over tenure had been precipitated because clinicians and legal writing faculty asked for security of position similar to that afforded podium or doctrinal faculty was ignored.  Nor was there any acknowledgement that the current reform was demanded first by Dean Van Zandt, the President of Northwestern University School of Law, and then by ALDA because Northwestern was not in compliance with standard requiring security of position for clinicians when it was inspected in 2006.

Northwestern and ALDA opposed the recertification of the ABA as the accrediting agency for law schools. In its Statement of Principles and Governance, ALDA makes it clear that it was formed for the purpose of altering the standards for accreditation of law schools – “The work of the Board of Directors of ALDA (the “ALDA Board”) has largely focused on effecting positive change in the ABA’s Standards for accreditation and in the procedures surrounding the accreditation process.”  If there is any doubt about the link between tenure and the proposed reforms, ALDA’s letter objecting to recertification of the ABA is quite explicit:

Generally, ALDA objects to the ABA using its power as an accrediting body recognized by the Secretary to seek to enforce upon its accredited institutions terms and conditions of employment that are extrinsic to educational quality. Specifically, we wish to call to the Committee’s attention to Standards 205(c), the entirety of Standard 405 and 603(d), which, respectively, essentially define the terms of employment of the law school dean, faculty, including those who supervise clinical programs, legal writing instructors and the director of the institution’s law library. The referenced ABA Standards either state, or have been interpreted in the course of accreditation actions to mean, that compliance requires either the granting of tenure or incorporating a tenure-like equivalent.

While ALDA opposed recertification of the ABA as an accrediting agency, SALT fought for recertification because we objected to the use of this process by the Secretary of Education, at the behest of members of the U.S. Commission on Civil Rights (Abigail Thernstom and Gail Heriott), to eliminate Standard 212 on Equal Opportunity and Diversity which  imposes an obligation that schools take “concrete steps” to create a diverse student body and faculty.  We had no idea as we talked to Senators and members of Congress about the abuse of power of the Secretary of Education that the ABA responds more quickly to threats than to support and opposition seems to be the way to go if you want to gain influence and power in that organization.

Meanwhile, after the election of Barack Obama made the position of the ABA less precarious, in January of 2009 President of Northwestern, Henry S. Bienan, was even more clear about the source of his grievance as he solicited letters from other college and university professors to urge the ABA to “eliminate  terms and conditions of employment “ from the accreditation standards.

The proposal was not limited to clinical faculty, however.  The “principle” that President Bienan was proposing was much broader in scope:

In case you missed that, the principle is that each law school gets to decide for itself whether or not it will have a system of tenure.  And President Bienan managed to recruit several college Presidents to his cause: Michael Adams, President, University of Georgia, Charles Bantz, Chancellor, Indiana University-Purdue University Indianapolis, Mary Sue Coleman, University of Michigan, John Hennessy, Stanford University, Robert Khayat, Chancellor, University of Mississippi, Alan Merten, President, George Mason University,  Mark Nordenberg, University of Pittsburgh, Steven Sample, President, University of Southern California, David Skorton, President, Cornell University, Graham Spanier, President, Penn State University, Thomas Wetherell, President, Florida State University, Robert Zimmer, University of Chicago

The campaign to eliminate tenure is not about cost.  It is not about improving the quality of legal education.  It is another example of downsizing the now emaciated middle class in the United States.  It is also about power.  As Rick Matasar explained in an email to the Dean’s Listserv, widely circulated even among faculty:

Over the years, we deans have been asleep as other parts of the academy with greater focus (who could that be, I wonder?) have instituted well-intentioned reforms that may harm our institutional interests or those of our students. As Don Polden reminds us, many of us have not read critical documents produced in the regulatory process and we often take our information second and third hand.

No one should be surprised to find that this very same Don Polden is now the Chair of the Standards Review Committee or that a committee he chairs now is proposing standards which no longer require tenure.

The past two years have been extremely frustrating.  In meetings where representatives of faculty groups are not allowed to speak, ABA committee members debate rules that will alter the structure of legal education, diminishing in a significant way the role that teachers play in governance and the academic freedom we currently enjoy (most of the time.)

I think it is important for a wider audience to know what has happened, who the players are in this drama and the chronology of events, at least as I remember it.  What we need to consider, and what I will discuss in the next post, are the proposed rules and our critique of these proposals.