NEW YORK, Nov 16 (Reuters) - A proposal before an American
Bar Association panel that many say would weaken the
long-established tenure system at law schools threatens both
academic freedom and job security, an advocate for university
professors argued before the association's standards review
committee last weekend in Chicago.
In a statement on Nov. 11, the first day of a two-day
meeting of the Standards Review Committee, Robert O'Neil, the
general counsel of the American Association of University
Professors, echoed the arguments of 71 law school faculties,
groups and individuals that have filed resolutions this year
opposing the change, which was drafted in January by the
standards committee. The committee proposed an amended version
of the change at a meeting in April.
The need for the protections offered by a tenure system is
not "some ancient vestige of the dark days of McCarthyism,"
O'Neil told the committee. "It is real and present, and at
times urgent." The AAUP receives three or four inquiries every
day from "harassed or beleaguered teachers," he added.
The ABA's current policy, which states that schools seeking
accreditation have "an established and announced policy with
respect to academic freedom and tenure," has generally been
interpreted as requiring law schools to have a tenure system.
The proposal to drop the language regarding tenure,
introduced by the 14-member standards committee, would leave
decisions on employment policies to individual schools'
Another proposal would drop requirements of other
job-security measures for clinical faculty members, who
supervise students taking on actual legal cases.
'WORK IN PROGRESS'
But some committee members have argued that the ABA's
accreditation standards never required tenure in the first
place, which triggered a separate proposal to explicitly
require accredited law schools to offer tenure, said Jeffrey
Lewis, dean emeritus and professor of law at Saint Louis
University School of Law who serves as the committee's chair.
In an interview, Michael Fitts, dean of the University of
Pennsylvania Law School and president of the American Law Deans
Society, said the Society "has long supported greater
flexibility for schools in fashioning their academic programs
so they are better able to meet their students' needs."
A "requirement that all full-time faculty members at
American law schools receive tenure would undermine the ability
of schools to continue to innovate," Fitts said.
Other administrators have said the requirement makes legal
education more costly and stifles law schools' ability to be
flexible and grow or shrink the school as needed.
The standards review committee has not taken an official
position on any of the proposed changes, said Lewis, the
"This is very much a work in progress," Lewis said. "Is
tenure a means to an end of academic freedom, or is it an end
in itself? That's the discussion going on."
Lewis said he expects the committee to make its
recommendations to the American Bar Association's section on
legal education within the next year. That section's council
would then debate and vote on any change.
THE 'QUOTA QUEEN'
While the proposals are drawing renewed attention to the
status of tenure and other job-security measures, the idea of
jettisoning the measures is not new. Beginning in 2006, the
board of directors of the ALDS -- then known as the American
Law Deans Association -- began a push to allow universities to
determine their own employment practices.
"Terms and conditions of employment have no place in the
[ABA accreditation] Standards and should be removed," said a
2008 letter issued by the board.
The proposal to drop the tenure language has been opposed
by faculty resolutions at 57 law schools, including Georgetown
University Law Center, Howard University School of Law,
American University Washington College of Law and Rutgers
University School of Law.
The resolutions -- many of which follow the same template
-- contend that the changes would undermine the quality of
legal education as well as "academic freedom in the legal
academy." They add that changes would "undermine the movement
to bring clinical law professors, legal writing professors and
library directors into full membership in the academy."
In his speech Friday, O'Neil, of the professors'
association, stressed that without the protections that tenure
offers, professors will be less likely to express their views
about controversial issues.
He cited Lani Guinier, who had been a member of the
University of Pennsylvania law faculty when President Bill
Clinton nominated her to be Assistant U.S. Attorney General in
1993. Clinton withdrew her nomination following controversy
over comments she made in law review articles about the voting
rights of minorities, which led some critics to dub her the
Despite the failed nomination, O'Neil pointed out, Guinier
was able to return to her faculty position without a problem.
Without the academic freedom provided by tenure, O'Neil said,
"the Lani Guiniers ... of our profession ... are simply at
unacceptable risk," O'Neil said. "Such venturesome colleagues
[would be] inadequately assured against sanctions and
The standards committee meets four times a year to review
what rules qualifying schools must follow. The next meeting
will take place January 14 and 15 in Washington, D.C.
(Reporting by Moira Herbst)
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(Adds new information about the proposals before the ABA