Paul L. Caron

Tuesday, March 3, 2009

Northwestern Battles ABA Over Tenure for Clinical Faculty & Library Director

Inside Higher Ed:  Calling in the Big Guns, by Doug Lederman:

The battle has raged for several years over the ABA's standards on the hiring and employment of faculty members. On one side, many law deans have argued that the requirements represent unwarranted intrusion in their schools' affairs, and drive up costs.

On the other are advocates for some law school employees, particularly clinical faculty members and librarians whose status would be most likely to change if the standards were eliminated. They have portrayed the deans' campaign as an attack on tenure and the academic freedom that tenure exists in part to protect, an assertion the deans dispute.

Warring over the standards has steadily ratcheted up, with the American Law Deans Association pushing at various times to ask the Education Department to challenge the ABA's Council on Legal Education and Admissions to the Bar and, more recently, prompting the ABA itself to study this issue -- a review that is still under way.

Now the law deans appear to be raising the stakes -- by asking their bosses to enter the fray. Northwestern University's departing president, Henry S. Bienen, sent a letter to 130 college presidents whose law schools belong to the law deans' group, urging them to sign a statement requesting that the ABA council drop the standards related to terms of employment. ...

After hiring an outside lawyer, Northwestern got the bar association to back down and accept "our contention that we provide protection for academic freedom for all faculty regardless of a faculty member's employment terms," Bienen wrote to his peer presidents. A panel appointed by the ABA council to study the question of the standard on "security of position" issued a report last year but did not resolve the matter.

The question is now part of a broader review of the ABA's accreditation standards, and it is in that context, Bienen wrote, that he asked his colleagues to help persuade the accreditor to stop regulating the status of employees. "[U]nlike any other accrediting agency I am aware of, the ABA Council incorporates into its standards required terms and conditions of employment for various employees, including clinical faculty, the director of the law library, and the dean. Specifically, accreditation may hinge solely on whether or not these individuals are provided with tenure or tenure-like security of position."

Such a requirement limits the ability of law schools like Northwestern to innovate, Bienen argued. "One of the reasons Northwestern has been successful in building and maintaining strong clinical programs is that we have had the flexibility to adjust to changing demands and needs," he wrote to his peers. "Had we had to offer tenure track positions or long-term contracts to all of our clinical faculty, we would have been severely constrained in our ability to be innovative. Notwithstanding our approach to hiring of clinical faculty, we have been successful in attracting and retaining top clinicians for the eleven different centers and programs we run at the law school. Furthermore, Northwestern has rigorously protected and defended the academic freedom of all its faculty, tenured and non-tenured alike."

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