Paul L. Caron

Friday, March 4, 2011

The Coming Showdown Over Law Faculty Tenure

ABA Logo The Standards Review Committee of the ABA Section on Legal Education and Admission to the Bar will hold an open forum in Chicago on April 2, 2011 to hear comments on these topics under consideration:
  1. Student Learning Outcomes
  2. Security of Position, Academic Freedom, Governance, Attracting and Retaining Competent Faculty
  3. Valid and Reliable Admission Test
  4. All other Standards, Interpretations and Rules of Procedure.

Ralph Brill (Chicago-Kent) posted on the LawProf Discussion Group the following memo to law school deans from Dean Donald J. Polden (Santa Clara), Chair of the Standards Review Committee:

Dear Deans: 

Carl's Brambrink's email (below) informs you of an "open forum" at the next meeting of the Standards Review Committee. I thought that I (as the chair of the Committee) would add to that a short report on the Committee's progress on it's comprehensive review of the Standards, Interpretations and Rules of Procedure. I hope this is helpful in giving you more information about the work of the Committee and revisions that we'll begin sending up to the Council by this summer. 

First, the Committee has been working for the past 2.5 years on a comprehensive review of the accreditation standards. This review is required by the US Dept of Education and by the Standards themselves.  We expect to have several chapters completed by this summer's meeting and those revised chapters will be transmitted to the Council for their consideration and action.  In the normal course of things, the Council will "notice up" all proposed changes for public comment and ask the Standards Review Committee to conduct public hearings on the proposed changes.  It is possible that proposed changes could be noticed up for public comment as soon as next fall or winter. Thereafter, the Council will make final decisions on any revisions to the Standards.

Second, the Committee's work has been comprehensive; we have considered, or are in the process of considering, revisions to all the standards and rules.  Many of the current standards will remain substantially similar to their current form, but there are significant changes in other standards.  In conducting the comprehensive review we have attempted to provide law schools with more flexibility than the current standards permit, increase the transparency of accreditation decisions, consider ways to make accreditation review less complicated and costly, and improve the clarity of the policies and rules.  But, I think it is fair to say that everyone won't like every change.  Indeed, we have found that some legal education constitutency groups love some of the proposed changes but hate other ones. 

Third, there has been a lot of "input" from many legal education groups.  We have received hundreds of comments, recommendations, criticisms, etc. Some of the discussed revisions have generated controversy, including reports and stories in trade journals and newspapers. Some of those reports and stories have been accurate; others less so.  I encourage you to go to the Committee's website (at bottom of this report) and judge for yourself.  We have received very little commentary on the proposed revisions and discussion drafts from deans and your opinions on the possible changes to the accreditation standards are important to legal education. 

Fourth, some of the matters that the Committee has discussed and which may be in revised chapters going to the Council, include:

a.  Requirements that law schools articulate student learning goals and periodically measure their students' achievement of the goals;

b.  A new rule that would provide for the public disclosure of accreditation findings for individual law schools;

c.  Relaxing the current standard that requires that schools must require every applicant to have a score on a valid and reliable entrance examination (practically speaking, the LSAT);

d.  Removing the current requirements that prescribe particular types of contracts (in terms of duration, participation rights, etc.) that must be given to faculty members who don't have tenure, while strengthening law schools' obligations to protect the academic freedom of all full time faculty members.  A related edit would relax the current requirement that the university or governing body must provide the dean with tenure as a member of his or her faculty;

e.  Reconsidering current standards that require schools to have class attendance policies, limit students from taking a internship at which they would be paid, and substantially limit credit hours that can be earned by students through distance education courses;

f.  Reconsidering the (relatively new) policy concerning minimum or threshold bar passage rates and addressing the perception that the thresholds established by the policy are too low. 

There are many other important accreditation policies that the Committee is discussing and we encourage your views on them, including concerns and suggestions to improve both the current standards and the Committee's drafts of revisions.  Send your comments to me or to the Office of the Consultant, and please consider attending the "open forum" to express your views in person. 

The Committee's website is "information rich" with Committee drafts as well as comments, emails and letters from interested parties.  

Best wishes,


Ralph has submitted this 17-page memo criticizing the proposed changes to faculty tenure and job security. See also this 8-page submission from Richard K. Neumann, Jr. (Hofstra).

The Georgetown faculty on March 2 unanimously adopted this resolution opposing the proposed changes on faculty tenure and job security. The National Law Journal reports that at least two other law school faculty -- Golden Gate and Hawaii -- have adopted similar resolutions. For more, see:

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I'm sorry, but a law school dean confusing the contraction "it's" with the possessive pronoun "its" is, in my book, unforgivable. I try not to be the grammar Nazi (accepting the increasing mis-usage by the general public as another indicator of the impending Fall), but the blatant error in the 2cd sentence is just outrageous. Tenure reform and testing standards, anyone?

Posted by: LoneStar78730 | Mar 5, 2011 6:04:34 AM


That is how Exxon developed metallocene PE (10 yrs/ $1 billion), and duPont did teflon and nylon, pharm came up with the blockbusters of the 1990s, and, and, and.

Focus on the payoff and great things will happen. The job security is "Do your job and help the company succeed. Fail at that, and you'll be gone."

Why is it that the profit motive is looked upon by so many as inherently evil?

Posted by: Dr. K | Mar 4, 2011 1:09:43 PM

The problem is not that an absence of tenure would threaten free speech so much as that it would shorten the time frame and discourage people from working on long-range projects. I'm not sure how R&D labs handle this problem. I would suspect that the better ones have some kind of formal or informal job security--"hire smart people and leave them alone"--and that those who are constantly purging people produce less work of long-term value. Then again, neither Freud nor Einstein had tenure (or even a regular appointment) and some of their work was pretty good.

Posted by: mike livingston | Mar 4, 2011 12:14:46 PM

the Nation would be a lot better off if there were a lot fewer Lawyer Factories.

can we the people have our Constitution back now?

haven't you all trashed it enough yet?

Posted by: Stacey Shoemaker | Mar 4, 2011 11:55:19 AM

@mike livingston:

I don't know. How about the old Mobil R&D labs in Edison, NJ and Paulsboro, NJ? Or the DuPont labs in Wilmington, DE? Or any one of ExxonMobil's R&D facilities? Or Dow's? Or any pharma company? Or......

One should not restrict the potential of success to an academic institution. Because academic institutions would shrivel up and die if it were not for government funding.

Posted by: Dr. K | Mar 4, 2011 11:21:35 AM

I'd worry a lot more about this:

"a. Requirements that law schools articulate student learning goals and periodically measure their students' achievement of the goals;"

It sounds like extra costs for all law schools, and worse teaching quality. We've been told to do this "articulate" stuff in my business school for accreditation purposes, and it's an embarassingly stupid process.

Posted by: Eric Rasmusen | Mar 4, 2011 9:18:05 AM

It looks like a wise consideration that we don't know what the successful lawschool model(s) for the 21st century look like, and so its best to let schools find it out themselves.

Posted by: pashley | Mar 4, 2011 8:33:38 AM

The war on tenure has been going on for several years, in the form of systematic substitution of untenured for tenured faculty at many institutions. Now it is simply coming out into the open. Sure, there are arguments on both sides, but here's the question: what is the genuinely successful research institution that has operated without tenure?

Posted by: mike livingston | Mar 4, 2011 8:03:53 AM