The ABA Standards and Law School Tenure: An Unproductive Debate

It appears we are in for another round of unproductive debate concerning whether the ABA Standards should address the issue of tenure.  The Faculty Lounge has a letter initiated by the AALS Section on Minority Groups expressing opposition to the proposed revision of the standards that drops the “tenure requirement.”  (The scare quotes are due to the fact that there is no literal tenure requirement but one that calls for law schools to have “an established and announced policy with respect to academic freedom and tenure”).

In my view, the debate is unproductive because on the one hand, it is implausible that the issue is the future existence of tenure as such in law schools, especially those attached to universities.  On the other hand, the chief proponents of dropping the “tenure” standard, such as the American Law Deans Association, never make an appearance in public as it were to clarify to faculty members what the debate is really about.  Yet on the third hand, perhaps they can’t.  The rest of this post is by way of explanation.

 

Although it is possible that some law faculty have tenure solely by virtue of the ABA Standards, this is unlikely.  Tenure is an academic matter under the control of universities.  The decision to extend tenure, usually to a defined group of full-time faculty, is one that is made on a university-wide basis.  If this is the case, it is unlikely that the ABA Standards have ever played a causal role in providing tenure to any particular faculty member.

When the revision of the standards began, the ALDA Board and several university presidents wrote to the ABA to advocate dropping the tenure requirement.  I infer that this was not because they oppose tenure per se.  Try to remember the last time a law dean or university president advocated ending tenure.  The real issue is whether all full-time instructional personnel (maybe plus librarians) should be given tenure.  At an individual level, that is as much a question of status and salary as employment protection and academic freedom.  For institutions, that would have big financial and educational implications that have been only hinted at in the debate.

I believe Brian Tamanaha has an illuminating discussion of this issue in his book Failing Law Schools.  Some clinicians, legal writing instructors and library staff have been advocating for years that they should receive tenure.  Perhaps they should, but while I certainly don’t want to upset anyone, this is not an issue which law faculty are well suited to address.  That’s because it is not, once again, an issue of whether tenure should exist (an issue on which faculty could be expected to have experience and thus a well-informed opinion) as it is an issue of the financial and educational consequences of giving tenure to everyone who teaches.  The other background issue is that the ABA is apparently the last professional school accreditor to require tenure.  My understanding is that to justify continuing the requirement to its regulator, the Department of Education, the ABA would have to show that extending tenure to everyone was the only way to assure that students receive an adequate professional education.  This would be difficult, given that law schools are already providing an adequate education without doing so.

Although the ALDA position can be explained, ALDA has made its arguments only to the ABA, not to faculty members.  So it is not surprising that law professors don’t have a good idea what is going on when the ABA debate over the tenure requirement is so stylized and indirect.  I can imagine a faculty member asking: if the issue is not tenure per se, what exactly is going on?  Perhaps ALDA should write an open letter to law faculty members explaining its position.  Then again, the budgetary and educational terrain differs so much from school to school that it is hard to model the implications of greatly expanding the number of tenured positions in a way that would contribute to the discussion.

One might conclude this is an administrative matter best left to law deans.  But the issue is rarely presented this way.  Instead we get arguments that assume the issue is tenure or bust.  No doubt my comments here are affected by the seven years I spent in law school administration.  This taught me that while some faculty believe that when push comes to shove, tenure should not be extended to everyone, they are understandably reluctant to directly confront their colleagues in clinics and legal writing programs who want the status and protection that tenure affords.  For the future, I wish the ABA and ALDA would provide a little more by way of explanation about the reasons for the shift and law faculty should stop assuming that the issue is one of tenure per se.