Thursday, August 29, 2024
ABA Law School Accreditation News
Managing Director’s Guidance Memo Standard 305 (August 2024):
Standard 305. Other Academic Study
(a) A law school may grant credit toward the J.D. degree for courses that involve student participation in studies or activities in a format that does not involve attendance at regularly scheduled class sessions, including, but not limited to, moot court, law review, and directed research.
(b) Credit granted for such a course shall be commensurate with the time and effort required and the anticipated quality of the educational experience of the student.
(c) Each student’s educational achievement in such a course shall be evaluated by a faculty member. ...
Three Matters for Notice and Comment:
Background: Due to changes in the law resulting from the U.S. Supreme Court’s decision in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College concerning college and university admissions decisions, the Council concluded that revisions to Standard 206 were needed. The revisions below were approved by the Council after the Standards Committee reviewed the U.S. Supreme Court’s decision, consulted with outside counsel, researched state law, and looked for other accreditors’ policies in this area. After much deliberation, the Standards Committee gave the Council two options for revisions to Standard 206. The Standards Committee recommended one of these options, which the Council approved for Notice and Comment.
Explanation of Revisions: The new title of Standard 206, “Access to Legal Education and the Profession” (formerly titled “Diversity and Inclusion”) focuses on achieving access for students, faculty, and staff. The revisions to the Standard remove references to race and ethnicity, as well as other specific identity characteristics, from the text of the Standard.
Standard 206(a) emphasizes that access to the study of law and legal profession is particularly necessary for ensuring the legitimacy of the justice system, since most law school graduates become a part of the justice system. Standard 206(a) and Standard 206(b) both contain parallel language that describes access as “including those [persons] with identities that historically have been disadvantaged or excluded from the legal profession.” Interpretation 206-1 provides examples of actions that demonstrate a commitment to access.
Standard 206(b) requires concrete actions that demonstrate a commitment to maintaining a supportive learning environment for all students, in part by providing access to faculty and staff positions for all persons, including those with identities that historically have been disadvantaged or excluded from the legal profession. The Council understands that there are more aspects to a supportive learning environment, but this is an important one of those aspects. The Council provides a definition of “supportive learning environment” in Interpretation 206-3 and, in Interpretation 206-2, explicitly states that taking race or any other identity characteristic into account in making an individual employment decision is not required for compliance Standard 206(b). ...
Background: Since this revised version of Standard 405 is significantly different than version that went out for Notice and Comment, and it expands job security to more full-time faculty members, an extended explanation of the reasoning behind these changes in necessary. The Council understands that these revisions to Standard 405, if codified, may require extra time for law schools to implement. As such, this Standard will take effect no earlier than the beginning of the 2027-2028 academic year. With respect to changes in status for persons in positions described in the revisions, law schools with 2026-2027 Site Visits will report a plan for compliance in the 2026-2027 Site Evaluation Questionnaire (SEQ).
Tenure or another form of job security that provides security of position reasonably similar to tenure is crucial for law professors to maintain academic freedom because it provides protection against external pressures and unjust dismissal. Security of position allows law professors to explore, teach, advocate for social justice, participate in faculty governance, and publish controversial ideas without fear of losing their livelihood. Security of position supports faculty participation in academic governance by providing a form of academic independence that enables all full-time faculty members to speak openly and truthfully about institutional matters. Moreover, the academic independence that security of position provides protects the integrity of shared governance between the faculty and the administration by ensuring that voting or speaking on controversial matters will not result in adverse employment action.
When faculty members lack security of position, it undermines the quality of legal education and harms law students. Non-tenure track faculty members in the areas of academic support/success and bar readiness report being afraid to help students who have substantive questions about doctrinal areas of law because they fear that a tenured faculty member will complain to the dean that the academic support faculty member is trying to teach Torts, Contracts, or some other substantive doctrinal area of law. This fear has led many faculty members without security of position to limit their assistance of students to the “skills” aspect of teaching which frustrates the efforts of students who seek out academic support to ensure their own academic success through full understanding of the substance of legal doctrine as well as the skill of applying legal doctrine. Legal writing faculty members without security of position also report concerns about “staying in their place” and not helping students understand the substantive doctrinal law. These are serious examples of the harm to legal education that results from the lack of security of position for all full-time faculty members who rely on their faculty position for their livelihood. These reports have come from presentations at conferences and comments submitted; Council members have observed this perspective in some of its accreditation work as well. The Standards Committee also reviewed the research and materials available through the American Association of University Professors (AAUP) in drafting the Academic Freedom Standard 208 and Standard 405. See https://www.aaup.org/our-work/protecting-academic-freedom.
Explanation of Revisions: In terms of revisions, in Standard 405(b), the “adopt, publish, and adhere to” language used in other Standards was adopted here for consistency. In Standard 405(c), the revisions add more detail and clarification as to what law schools are required to provide to all full-time faculty members in terms of tenure or security of position reasonably similar to tenure, governance rights, and non-compensatory perquisites. A significant addition to Standard 405(c) is the requirement that the director or supervisor of the academic success, bar preparation, field placement, and legal writing programs have tenure or a form of security of position reasonably similar to tenure. This requirement does not necessitate transforming a staff position into a faculty position: the requirement can be satisfied by having a faculty member with tenure or security of position reasonably similar to tenure overseeing these programs. For example, if a law school’s academic success/support unit is comprised of staff members and these staff members are supervised and overseen by an associate dean – or other faculty member who has tenure or security of position reasonably similar to tenure – the law school can satisfy Standard 405(c). The goal of requiring the director or supervisor of these programs to have tenure or security of position reasonably similar to tenure was to ensure that decisions on content, curriculum, and/or pedagogy in these programs are made by a faculty member with security of position so that a staff member or faculty member on a short-term contract does not feel their choices on content, curriculum, and/or pedagogy are constrained by their employment status. Revised Standard 405(d) requires faculty member obligations and perquisites to be communicated in writing at or before the start of employment. Interpretation 405-5 states that law schools should develop criteria for retention, promotion, and security of position for all full-time faculty members. The current Interpretation 405-4 has been deleted since this topic is covered or subsumed by Standard 208’s Interpretation 208-3. A new Interpretation 405-4 has been added to create a “safe harbor” provision in which security of position “reasonably similar to tenure” is generally satisfied by a five-year presumptively renewable contract.
Finally, to accomplish the revisions noted above in Standard 405, the Standards Committee found that a revision was needed to the definition of full-time faculty member (Definition (9). The change was the deletion of the phrase “who is designated by the law school as a full-time faculty member” to ensure that the definition was a functional one consistent with the duties of a full-time faculty member as described in Standard 404(a).
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