Paul L. Caron
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Tuesday, March 22, 2011

ABA Minority Proposal Softens Removal of Tenure as Accreditation Standard

ABA Logo In advance of its April 2 meeting, the Standards Review Committee of the ABA Section on Legal Education and Admission to the Bar has released a minority proposal (by committee members Margaret Barry and Mike Wolff (pp.5-6)) to the majority proposal (pp. 1-4) (previously blogged here) to eliminate faculty tenure as an accreditation standard. Here is the minority proposal:

Standard 405. PROFESSIONAL ENVIRONMENT

(a) A law school shall attract and retain a competent full-time faculty sufficient to comply with the Standards and to accomplish its mission.

(b) A law school shall afford all full-time faculty a form of security of position sufficient to ensure academic freedom and meaningful participation in law school governance, and shall have a written comprehensive system for evaluating candidates for all positions for renewal, promotion and termination.

(c) A law school shall not discriminate in its provision of security of position or other rights and privileges of faculty membership for its full-time faculty based on a faculty member's field of study or method of teaching.

(d) A law school shall have a written policy for the protection of academic freedom of its faculty members and procedures to ensure that its policy is enforced. The policy shall provide protection for the academic freedom of all full-time faculty in exercising their teaching responsibilities, and in pursuing their research activities, governance responsibilities, and law school related public service activities, and provide similar protections, as appropriate, for part-time faculty.

Interpretation 405-1. Forms of security of position sufficient to ensure academic freedom include: (a) tenure; (b) programmatic tenure that may be terminated only for good cause after a probationary period reasonably similar to that for tenure-track faculty members; or (c) a program of renewable long-term contracts that are at least five years in duration and either presumptively renewable or nonrenewable only for good cause after a probationary period reasonably similar to that for tenure-track faculty members. During probationary periods, faculty may be employed on short-term contracts.

Interpretation 405-2. Meaningful participation in law school governance shall include faculty participation in decisions affecting the mission and direction of the law school, including academic matters such as curriculum, academic standards, and methods of instruction, and participation in the appointment, renewal, promotion, and termination of members of the faculty. If a school affords tenure only to some of its full-time faculty members, the school shall afford its other faculty members participation in law school governance equal to that afforded the tenured or tenure-track faculty. However, this Standard does not preclude a school from limiting the voting rights of faculty members on appointments, retention, promotion and tenure (or granting of security of position) outside their field of study or method of teaching.

Interpretation 405-3. If a law school employs full-time faculty with more than one form of security of position, it shall not allocate those positions based solely on the faculty member’s field of study or method of teaching. Distinctions in security of position between faculty in different law school programs should be shown to advance educational quality or the mission of the law school.

Interpretation 405-4. This Standard does not preclude a limited number of fixed, short-term appointments in a law school program predominantly staffed by full-time faculty members or within an experimental program of limited duration.

Interpretation 405-5. This Standard does not preclude a law school from offering fellowship or visiting assistant professor programs designed to produce candidates for full-time teaching by offering individuals supervised teaching experience.

Interpretation 405-6. A law school may demonstrate its compliance with the principles of academic freedom by presenting evidence of its, or its university’s, explicit acceptance of the protections of the 1940 AAUP Statement of Principles on Academic Freedom and Tenure and its 1970 Interpretive Comments. In ensuring that the law school’s written policy on academic freedom is enforced, the written policy should include procedures that prohibit the non-renewal, denial of promotion, or loss of a faculty position unless a representative group of faculty determines that the decision does not implicate academic freedom and that offer the affected faculty member the opportunity to present any claims to the faculty making that determination.

Prior TaxProf Blog coverage:

https://taxprof.typepad.com/taxprof_blog/2011/03/aba-softens-.html

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