Law Professors Give ABA an Earful on Tenure's Future

, The National Law Journal

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Saint Louis University School of Law professor Jeffrey Lewis

The American Bar Association proposal to eliminate its tenure requirement for law schools drew a hostile reception during the Association of American Law School’s annual meeting in New York over the weekend.

An overflow crowd of law professors packed into a meeting room during a panel discussion on Saturday to express outrage over the idea. The ABA’s Section of Legal Education and Admissions to the Bar billed the discussion as an opportunity to learn about the myriad changes on the table as it updates its accreditation standards.

The list of changes under consideration is long, including increasing the number of practical skills credit hours students must take and allowing more credits to be earned via distance education. But it didn’t take long for the tenure discussion to take center stage, as law professors lined up to voice concerns that eliminating the tenure requirement would jeopardize academic freedom.

The discussion grew tense at moments, with some audience members accusing ABA leaders of being more concerned with the interest of law firms and corporations than with the quality of legal education. Others alleged that leaders had not fully considered the implication for minority group faculty of removing the tenure requirement. The discussion was interrupted numerous times by applause from the audience following passionate remarks defending the importance of tenure.

The move has been talked about in legal education circles for years, generally in the face of ardent opposition. Since 2010, 59 law school faculties have adopted resolutions in support of a tenure requirement. Last month, 16 former AALS presidents signed a letter to the ABA declaring that eliminating tenure as an accreditation requirement is “untenable and dangerous.”

But this AALS meeting was unusual in that the conference brought a large group of law professors face-to-face with ABA decision-makers. Typically, fewer than a dozen law professors attend the ABA meetings at which accreditation standards are discussed.

Saint Louis University School of Law professor Jeffrey Lewis, chairman of the ABA committee examining the standards, took the occasion to explain the two options on the table regarding what has been dubbed “security of position.” The first is that all fulltime law faculty must have some form of “security of position” that protects academic freedom, but that does not necessarily have to be a tenure system as traditionally understood. The second option would eliminate any reference to security of position, but would require schools to provide job protections sufficient to attract a competent faculty.

Under both options, tenure would be considered a safe harbor, Lewis said—that is, if schools opt not to maintain a system of tenure, the onus would be upon them to prove to the ABA that their policies would protect academic freedom.

The primary argument against tenure is that law schools need flexibility in staffing. So while Boston University School of Law Dean Maureen O’Rourke, who sits on the ABA council, noted that no other professional schools have tenure as a requirement for accreditation, Loyola University Chicago Law Dean David Yellen argued that there are other ways to protect academic freedom. The AALS itself could adopt tenure as a requirement for all its member schools, he suggested.

But those arguments made little leeway with many of the law professors on Saturday, who argued that law faculty members fulfill a different role in the academy than do medical or dental faculty. Their scholarship and advocacy can make them targets of criticism, and they need tenure protection to take unpopular positions and participate fully in law school governance, they said.

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