Wednesday, September 16, 2020
J. Lyn Entrikin (Arkansas-Little Rock), Lucy Jewel (Tennessee), Susie Salmon (Arizona), Craig T. Smith (North Carolina), Kristen K. Tiscione (Georgetown) & Melissa H. Weresh (Drake), Treating Professionals Professionally: Requiring Security of Position for All Skills-Focused Faculty under ABA Accreditation Standard 405(c) and Eliminating 405(d), 98 Or. L. Rev. 1 (2020):
Standard 405 is imperfect at best. In theory, it began as a way to ensure competent law faculties by affording security of position and academic freedom. But its later permutations, Standards 405(c) and (d), create and perpetuate a hierarchy that favors mostly male, doctrine-focused faculty and discriminates against mostly female, skills-focused faculty, even though both groups teach the same students.
All law faculty should be eligible for tenure and the protections it affords. At this juncture, we recognize that advocating for tenure opportunities for all faculty likely represents too large a leap. Thus, this paper calls on the ABA to both (1) require that all professional skillsfocused faculty—both clinical and legal writing faculty—be afforded protection under Standard 405(c) at minimum, and (2) eliminate Standard 405(d).
Only long-term, presumptively renewable contracts, which afford security of position “reasonably similar to tenure” as well as significant governance rights, come close to recognizing the vital contribution that skills-focused faculty bring to legal education. Eliminating 405(d) and extending 405(c) to all professional skills faculty are both necessary for law schools to comport with traditional notions of fairness and equal treatment. No justifiable reason exists for discriminating against faculty on the basis of subject matter, particularly when legal writing courses are both required by the ABA accreditation standards and increasingly valued in a legal profession that demands law graduates who understand both legal theory and law practice.