While we’re talking about the ABA . . .
Brian Leiter asks whether the American Law Deans’ Association is opposed to tenure. The question is spurred by the ALDA’s comment (.doc) filed with the DOE on the ABA’s application for reaffirmation as a recognized accrediting body. Leiter cites to a blog post (which links to the ALDA’s comment) from Marina Angel (he attributes the post to Ann Bartow, but the post seems to be by Marina Angel) at the Feminist Law Professors Blog. There’s a follow up to the post here.
Remarkably, the follow-up post makes this claim:
We are dealing with the Bush Department of Education, and they would love to eliminate or severely limit tenure and totally eliminate long-term contracts. This is part of a broadly based, organized attack on faculty independence that has been going on for at least fifteen years. This new threat must be taken seriously.
Huh? This is one pillar of the Vast Right Wing Conspiracy (George Dubya Chapter) I hadn’t heard about.
But leave aside the obligatory dig at the current administration for a moment, does the ALDA really want to do away with tenure? Actually, its claims are far less dramatic. Here’s what the statement actually says:
Generally, ALDA objects to the ABA using its power as an accrediting body recognized by the Secretary to seek to enforce upon its accredited institutions terms and conditions of employment that are extrinsic to educational quality. Specifically, we wish to call to the Committee’s attention to Standards 205(c), the entirety of Standard 405 and 603(d), which, respectively, essentially define the terms of employment of the law school dean, faculty (including those who supervise clinical programs), legal writing instructors and the director of the institution’s law library. The referenced ABA Standards either state, or have been interpreted in the course of accreditation actions to mean, that compliance requires either the granting of tenure or incorporating a tenure-like equivalent in Personnel policies. At a minimum, it is a short step from requiring long-term contracts to mandating tenure.
It is certainly true that many, indeed most, law schools, as a matter of choice have systems of tenure for their instructional faculty and other classes of their professional personnel. Many have also chosen to establish “tenure-like” models that provide for assured employment for a term of years. However, these are domestic decisions made through the established processes of the institution, not models imposed upon them as a condition of acceptance among the brethren of ABA-accredited law schools.
* * *
Professional organizations can be expected to advocate job security for its members. And it is certainly within the discretion of a law school to decide whether to adopt such a policy. But it should not be within the realm of an accrediting organization, certainly not one bearing the imprimatur of the Secretary of Education, to translate advocacy for specific economic terms into prescribed conduct. This is an abuse of the power that the accrediting agency has secured by means of its governmental recognition.
We believe that in exercising its authority as an accrediting body recognized by the Secretary, the ABA has an obligation to focus its attention on those elements of institutional performance that relate to the quality of education provided its students. When it dictates terms and conditions of employment, the accrediting body inappropriately inserts itself into the internal affairs of the institutions it accredits and does so in a way that forces homogeneity, and conversely stifles innovation and diversity, among law schools. We are fully aware that this Committee is not the Antitrust Division of the United States Department of Justice. We understand that the law, regulations and policies that guide this Committee in its deliberations are very different from the antitrust laws of the United States. We are also aware that the regulations governing the recognition of accrediting bodies expressly state that “an agency that has established and applies the standards [specifically prescribed in the regulation] may establish any additional accreditation standards it deems appropriate.” Still, we believe that experience suggests that scrutiny of standards and policies that are extraneous to the purpose of ensuring the quality of legal education is appropriate.
So as I read it, the complaint is not against tenure per se; it’s against the broad imposition of specific employment contract terms by a law school accrediting body, the ABA. This hardly seems a very contentious position.
Of course I suspect Angel knows that. The fight isn’t over the practice of tenure; rather the fight is over the relative power of the ABA and its member schools. The ABA is reliably lefty and unashamedly so (only an institution with no shame could adopt this scheme). The named signatories to the ALDA comment are Saul Levmore, David Van Zandt, Katharine Bartlett and Jim Huffman. They are, as a group at least, far less reliably left wing. If memory serves, the ALDA was founded for the very purpose of opposing the ABA’s non-qualitative accreditation standards (stuff like tenure for clinical faculties, minimum salary requirements, faculties’ racial composition, etc.). The ALDA is here challenging the imposition of ideology masquerading as qualitative standard-setting. It might very well be, in contrast, that this is precisely what Angel is fighting for.
One final note: I might actually be sympathetic with the argument that tenure is problematic in some instances (and for students especially). See my previous comments here (commenting on John Tierney ($)), and be sure to check out Posner, Becker and Cowen on the topic while you’re at it. This debate is not clear cut by any stretch, and — not that the ALDA has adopted this position — even if the ALDA were opposed to tenure per se (especially for clinical faculty) the position would not be inherently untenable.
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I guess one “could” argue that the ALDA is really seeking to strip the accreditation body of the power to require tenure so that deans might eliminate tenure without fear of punishment. I dont read the statement that way. The ALDA statement seems to clearly embrace the possibility that institutions that prefer the tenure-model use it, institutions that don’t are free to get rid of it, and those that wish to develop other models do so as well. But it is not an uncommont strategy for cartels to take great strides to stifle such innovation and diversity. Unfortunately for consumers of legal education services, a reduction in this form of competition is generally a bad thing.
I agree with Hank that a rational dean/ institution that believed that tenure had no impact on legal education or provided some benefit, it would seek to restrict tenure. But if we observed rational institutions eliminating tenure, notwithstanding the costs associated with decreased “faculty independence,” would this not tell us something important about the trade-offs involved in such a decision? Would not the trade-offs be different across institutions?
Great post. I wonder when the clinical faculty and the librarians will hit the streets; it seemed to have work for the French youth.
Josh, the part of the Angel post that is cited in Geoff’s post suggests that eliminating tenure from the accreditation standards is a direct threat to faculty independence, not that it will necessarily lead to an abolition of tenure. Of course, one can argue that ALDA merely wants to remove the tenure issue from the accreditation body. Conversely, one can argue that ALDA (an association of deans) wants to restrict the accrediting body from requiring tenure in some form so a dean may have the flexibility to restrict tenure generally or refuse to grant tenure in specific instances without worrying whether the accrediting body is looking over the dean’s shoulder. The possibility of limiting of tenure is a direct threat to faculty independence, even if tenure survives.
More importantly, if a dean believes that tenure does not add to the quality of legal education why wouldn’t a rational dean want to and try to restrict tenure as much as possible, i.e., as much as his school will let her/him?
Hank, Angel does not “question the commitment to tenure” of the ALDA. She writes of the “new threat” to “eliminate or severely limit” tenure. The letter provides no evidence of such a threat. In fact, the letter appears to support exactly such internal law school governance decisions. The most reasonable, and fairly obvious, interpretation of the ALDA letter is that the Law Deans are opposed to (as Geoff wrote):”the broad imposition of specific employment contract terms by a law school accrediting body, the ABA.” Even if the ALDA believes that tenure has little or no effect of the quality of legal education, I do not see how this belief is at tension with the position that such decisions should be left to law schools, not the ABA.
Unfortunately, the post ignores the most important claim in the ALDA statement: that tenure and long-term contracts have little or no effect on the quality of education at law schools.
It is perfectly fair to question the commitment to tenure of deans who do not appear to believe that tenure and long-term contracts have an effect on the quality of legal education.
Great post Geoff. The Law Deans’ statement pretty clearly indicates that they aren’t opposed to tenure.