Paul L. Caron

Wednesday, July 10, 2013

Fleischer: Seton Hall's Misguided Decision to Have Junior Faculty Bear Brunt of Budget Shortfall

NY Times DealBookNew York Times DealBook:  The Unseen Costs of Cutting Law School Faculty, by Vic Fleischer (San Diego):

The law school at Seton Hall University has put its untenured faculty on legal notice that their contracts may not be renewed for the 2014-15 academic year. The firings of these seven individuals are not certain, depending on the outcome of other steps the administration will try to bring the budget in balance.

The situation at Seton Hall is representative of many other non-elite law schools. Firing untenured faculty is a shortsighted approach to managing an academic budget. It encroaches on an important principle of academic freedom, namely that a tenure decision should be based on the merit of the case, not the budget of the department. ... The university may need to subsidize the law school until, over time, the full-time faculty of about 75 professors shrinks by attrition. ...

There are better ways to shrink a law school budget. The size of the tenure-track faculty can shrink by retirement and attrition, not involuntary termination. Post-tenure review (by faculty, not administrators) can ensure that faculty members remain productive. Libraries can be moved online. Clinics can be closed, and adjunct faculty can be better utilized to team-teach practical courses alongside research faculty. The size of the administrative staff can be pared down, especially those who manage programs that might be considered luxuries.

According to its Web site, Seton Hall Law School has five centers, seven clinics and five study abroad programs. I doubt all of these programs are profit centers. Perhaps in the age of austerity, the law school will offer fewer opportunities to travel to Zanzibar, take a safari, or study lakeside in Geneva. Better to kill off a few boondoggles than to fire the junior faculty.

Rob Anderson (Pepperdine), The Elephant in the Hall:

[T]here is no escaping the fact that the pathologies of the tenure system have created this situation, and that there is an extremely obvious problem at work here that most people are reluctant to discuss. It would be a shocking coincidence if the seven least productive and most expensive faculty members happened to be the seven most junior ones. In fact, the reality is likely the opposite. Seton Hall has a great faculty, but a quick tour through the faculty directory, as in almost any law school, will turn up at least seven full professors who haven't done all that much of significance since the Reagan administration. Why aren't they on the chopping block? ...

Junior professors, like support staff, tend to be the most vulnerable in the law school, and therefore the first to go. A long-term vision would suggest that the most highly compensated senior professors take the salary cut necessary to preserve the future of the law school. If they choose not to do so, however, it might be entertaining to publicly compare the productivity and compensation of some of the tenured professors over the last decade to that of their untenured colleagues over the past few years.

Stephen F. Diamond (Santa Clara), Hear, Hear! Vic Fleischer’s Defense of Seton Hall Law Faculty Is Spot On (Even If His View on Carried Interest Isn’t!):

Law schools and legal hiring have never been immune from these cycles, even in the heyday of the Kingsfield era. But as I explained in a recent paper here, we try to protect the law school from some of that cyclicality in order to maintain the law school’s integrity with respect to the surrounding society. Faculty accept lower salaries and the other perks of taking on the risks of the private marketplace in return for their commitment to pursue knowledge and train future lawyers. The entire society gains thereby.

And while the recent downturn has been more painful and long lasting than many in the recent past, it is only a shortsighted institution – apparently including venerable Seton Hall University – which throws away blithely its invested intellectual capital.

Dan Filler (Drexel), Vic Fleischer on the Unseen Costs of Cutting Faculty:

[O]ne issue that he doesn't address, but I think is relevant, is the status and protection of full-time, non tenure-track faculty.  I'm not sure whether he sees these folks as being comparable to untenured tenure-stream faculty or more akin to adjunct faculty, whom he sees as a better starting point for cutting.  

Erik Gerding (Colorado), Vic Fleischer on the Unseen Costs of Cutting Faculty:

The budget situation of law schools is likely going to lead to other pressure on academic freedom.  Don't be surprised if the search for new revenue pushes many schools into an eat-what-you-kill focus on faculty funding much of their salaries through grants. ... The marketplace for ideas is not the same thing as the marketplace for grants.

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Sorry to be so late to the conversation. The best reasons I can think of for tenure are that becoming an academic hurts your mobility, hurts your job prospects for the future, and is helpful when facing the administration. Someone who works in industry and is very good at what they do can find employment across the street at the competitor's place of business. An academic in many communities is looking at having to move to a different city and/or state if they need to change jobs. That is not a financial cost but it is a pretty considerable cost for an academic. As far as pay goes, most academics in business, law, and the sciences are overpaid for what they do but underpaid for they could make outside of academia. I have know quite a few computer science professors who were great at teaching and research and went back into the corporate world for a lot more money that teaching pays. They found the teaching lifestyle was not what they expected so they might as well make the money. Additionally, as a general rule the longer you stay an academic the less value you have on the free market, even within the professional and science fields. Lastly, if the concept of shared governance of the curriculum is true then faculty are better able to confront the administration if the faculty member has some form of job protection. Without tenure, faculty work for the administration, not with the administration.

I am not saying that tenure should be retained or that the above reasons are enough to justify keeping tenure. I think it is obvious that tenure in its current form is deeply flawed. I also believe that just wholesale getting rid of tenure is not a good way to attract people into academia. Tenure has value to the employee. Getting rid of a perk that has value will either reduce the attractiveness of the job or require increasing compensation in some other form.

Sorry I don't have an good answers. I have been thinking about this a lot lately just to understand the problem.

Posted by: Ross | Jul 17, 2013 10:10:41 PM

With regard to Prof. Fleischer's statement that as an alternative to cutting junior faculty, "Libraries can be moved online," he should note that doing so is about as easy - and effective - as replacing his classroom course with a MOOC. Every constituency of today's law school will have to sacrifice if the school is to continue providing legal education.

Posted by: Ken Hirsh | Jul 17, 2013 2:50:39 PM

I'm quite willing to be called loco but I'm not sure what "batshit" means

Posted by: michael livingston | Jul 11, 2013 6:09:55 AM

How about getting rid of the umpteen-dozen "Jr. Assistant Administrator for Diversity" and their ilk?
After all, that's where all the money is going... oh, and just eliminate for all time that obsolete concept of "pension". Faculty and (the preferably small amount) of Staff can contribute to private 401Ks like the rest of us in the Real World have been doing for decades.

Posted by: MN | Jul 10, 2013 7:27:11 PM

It ain't about faculty. It rarely is. It's all about administration.

Compare the student-to-administrator ratio today versus that of 1960. Or look at the administrator-to-faculty ratio of today vs. 1960 if you prefer. It is there you will find the problem.

Fixing higher ed (undergrad, law, medicine, whatever) is all about fixing administrative bloat. Everything else is Potemkin reform.

Posted by: gooch mango | Jul 10, 2013 5:41:58 PM

Tax professors "do not do any sort of controversial work where their politics could cause them to be fired"? Whoa. Writing about tax issues is apolitical? I don't buy that argument.

Posted by: HTA | Jul 10, 2013 3:23:58 PM

Diamond:"Faculty accept lower salaries..."

No. They. Don't.

To compare the earning potential of faculty at Directional State U. to partners at Jones Day is ridiculous.

Posted by: FC | Jul 10, 2013 1:20:00 PM

"How about replacing tenure with 3-year renewable contracts, renewal contingent upon three factors..."

How about granting life-time tenure to any tax law professor who can obtain tax-exempt status within 30 days of submission to the IRS for a 501(c)(4) organization named "The Patriotic Tea Party Committee for the Impeachment of Barack Obama."

Posted by: willis | Jul 10, 2013 9:17:59 AM

How about replacing tenure with 3-year renewable contracts, renewal contingent upon three factors: publishing something substantive, teaching evaluations that are not in the bottom 10% at that school, and some record of community service (such as 100 hours of pro bono work over the past 3 years)? That would weed out the deadwood pretty fast!

Posted by: Robert Gould | Jul 10, 2013 8:29:50 AM

the night of long knives is just beginning. we can expect tenured profs to protect above all things the status of tenured profs. they will offer all sorts of rationalizations for that. (oh no! they are coming for our scholarship! not the scholarship! save the scholarship!)

Posted by: anon | Jul 10, 2013 8:28:28 AM

"Explain to me why tenure exists again please?"

Tenure exists because full-time academics are batshit loco rejects from the real world who can't be trusted with basic HR decisions.

Posted by: anonymouse | Jul 10, 2013 8:19:19 AM

I really don't think it matters that junior faculty are the ones getting the hook. Law schools, like the legal profession in general will be shrinking in the future, with a shrinking need for faculty. This round of cuts is just the first one. Get used to it. The day will come when tenured faculty will go, regardless of the terms of their tenure. Look for on-line education to even accelerate the process.

Posted by: willis | Jul 10, 2013 8:10:55 AM

Vic Fleischer doesn't know what he wants yet. He thinks budget problems can be solved by cutting extraneous programs. In reality, it will likely come down to a choice between a major reduction in his own salary, or releasing junior faculty at his own institution. In which case, he will quickly backtrack from what he has said here.

Posted by: JM | Jul 10, 2013 5:31:54 AM

It's interesting that no one suggests retirement of tenured faculty, perhaps because that's what most of us are?

Posted by: michael livingston | Jul 10, 2013 5:23:20 AM

Explain to me why tenure exists again please? Why do teachers and professors deserve lifetime job security (earned after a few short years no less) while the rest of us live with the knowledge we could be fired at any moment?

99% of teachers (and 100% of tax professors) do not do any sort of controversial work where their politics could cause them to be fired or unduly influenced by the administration. Is that other 1% worth the costs of our tenure system? I am sure all of us have had teachers at every level who are getting on in age, frankly don't care anymore, and should be fired for performance reasons, yet cannot due to tenure.

College professors as a whole are a spoiled, entitled group of whiners. They should try living in the real world with the rest of us for a while.

Posted by: Todd | Jul 10, 2013 5:16:20 AM