The Standards Review Committee (SRC) held an open forum at the beginning of its meeting on April 2-3. Commentators focused on security of position and its relationship to law school governance and academic freedom. Speakers from SALT, CLEA (the Clinical Legal Association), ALWD (the Association of Legal Writing Directors), and the AALS, along with a number of individual faculty members, raised concerns about a subcommittee draft that would eliminate any requirement of tenure or other job security for law faculty from the ABA’s accreditation standards. This memo summarizes the public testimony on tenure and security of position, the SRC’s debate about the proposed changes to the tenure/security of position standard, and the outcome of that debate.
Public Forum Testimony
The comments stressed the importance of tenure or comparable security of position to make academic freedom a reality, allowing faculty to write, teach, litigate, and advocate without fear of retaliation for speaking on controversial matters, taking risks, and speaking truth to power. They emphasized that at-will or short-term law faculty would be constrained in their ability to participate in the development of their school’s curriculum and in other aspects of law school governance. Many also noted the likelihood that clinical and legal writing faculty would be the first victims of the elimination of the requirement of tenure or comparable security for law faculty. These speakers pointed out the incongruity of requiring, on the one hand, a legal education that focuses on the integration of theory, skills, ethics, and values in the curriculum while at the same time accepting second-class treatment of the faculty most likely to teach that part of the curriculum. They also noted the gender imbalance resulting from low status for legal research and writing faculty, and urged the committee members to consider the views of the many law faculties and the eighteen African-American, Asian-American, and Latino deans who have gone on record in opposition to the proposal to eliminate security of position requirements from the standards.
Later in the meeting, the SRC considered the draft recommended by the majority of the five-member subcommittee on security of position, proposing to eliminate security of position requirements from the standards, as well as a minority subcommittee proposal that would maintain the requirement of security of position for law faculty and provide for equality of treatment for teachers of doctrine, professional skills, and writing. The majority report proposes to protect academic freedom by requiring each school to have a policy and set of procedures on academic freedom and a policy on law school governance. The minority proposal, in contrast, would require not only a policy and procedure on academic freedom, but also that “all full-time faculty [have] a form of security of position sufficient to ensure academic freedom and meaningful participation in law school governance.” This proposal defines security of position as including tenure, programmatic tenure that may be terminated only for good cause, and presumptively renewable long-term contracts. It also provides that law schools cannot discriminate among teachers in different programs, i.e., doctrinal, clinical, and legal writing faculty, in its allocation of those forms of security of position.
During the committee’s deliberations it was apparent that a clear majority of the SRC members have strong reservations about the subcommittee proposal to eliminate security of position and instead favor the minority proposal to retain security of position for full-time faculty.
One committee member noted the importance of opening the academy more fully to all categories of teaching professionals, including clinical and legal writing faculty. Another expressed concern about the chilling effect that would be caused by removing security of position, as raised in much of the testimony at the public forum. Another spoke of the importance of institutional stability and having a fully invested and committed faculty who can do the work demanded by the other standards and be “players at the table,” which she found not present in the majority subcommittee draft. Another noted the importance of giving the same security of position to those who teach what the standards identify as important enough to require mandated courses (i.e., legal writing and a course integrating doctrine, theory, skills, and ethics). A number of committee members expressed support for explicitly requiring equality of treatment for all members of law school faculties—one member saying that he finds the different classes of citizenship among law school faculty “revolting”—while recognizing the challenges of articulating precisely how such equality would be implemented in hiring matters. One reminded the committee that the existing standards on security of position are the product of a long history of efforts by the ABA Council to address real problems that had arisen in legal education. Two members suggested that the SRC consider simply “cleaning up” existing 405, leaving the substance much the same, rather than seeking to rewrite the standard.
Although at the outset the SRC chair called for a vote on the two competing proposals, the committee opted for more deliberation rather than immediately taking a vote. Committee members urged the subcommittee to reconsider the issues and to incorporate language from the subcommittee minority proposal, as well as to study proposals from CLEA and from the ABA Special Committee on the Professional Education Continuum, both of which also provide for academic freedom and a strong governance role for faculty, supported by a requirement of faculty security of position. In addition, the subcommittee will consider ways to ensure equality of treatment for clinical and legal writing faculty.
SALT will continue to monitor the drafts emerging from the subcommittee and will work to ensure they reflect the sentiments evident in the SRC’s April discussion of this issue, as well as press for an outcome consistent with the comments SALT has submitted.