Bernstein on the Law Deans, Tenure, and the ABA

Cite this Article
Joshua D. Wright, Bernstein on the Law Deans, Tenure, and the ABA, Truth on the Market (April 22, 2006),

My colleague David Bernstein at VC points out this article in Inside Higher Ed by Doug Lederman discussing the American Law Deans Association’s criticisms of the ABA’s imposition of requirements that go well beyond “assuring the quality of legal education.” Here’s David’s take:

I can certainly see the case for law schools choosing to give these faculty members tenure (assuming tenure is a good idea to begin with, which I’m not sure is true), but I don’t see any reason why the ABA should be requiring every law school in the country to do so. Indeed, the real reason is likely (a) heavy lobbying from groups representing librarians, writing instructors, and clinical faculty; and (b) the ABA’s general indifference to the costs it imposes on legal education. Actually, from the ABA’s perspective, the more legal education costs, the better, because that way the cost of law school serves as a greater barrier to entry. There’s no reason the Department of Education, which is deciding whether to continue using the ABA as the accrediting body for law schools for federal purposes, should endorse the ABA’s rules. For that matter, there is no reason the ABA should be mandating how many classes are taught by full-time faculty as opposed to adjuncts, nor restricting the number of hours faculty may be required to teach.

This sounds spot on. The problem is not an institution determining on its own to give librarians and other employees tenure, but the ABA using its accreditation power to mandate such contracts. David’s concerns are echoed by the comments offered by the ALDA (linked above):

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.

It is worth pointing out, as Geoff did in his earlier post on the ALDA’s comments, that this debate is not really over tenure standards (though that debate may be one worth having). ALDA explicitly distinguishes between objecting to tenure and tenure-like standards per se and the imposition of such requirements by the ABA:

Many [law schools 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.

So, why then all the fuss over ALDA’s comments? Geoff addressed this question in his prior post as well. His answer:

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.

Do check out David’s post and Lederman’s article (both linked above).