March 22, 2011
Masters Forum (Legal Education): Should the ABA Mandate Tenure?
Posted by Christine Hurt

If we are to engage with the ABA's areas targeted for accreditation reform, then we have to take a few things as given:  (1) that law schools should be accredited by some external body; (2) that this external body is going to be the ABA; (3) that no school outside of California can practically afford not to be accredited; and that (4) that the purpose for the ABA providing accreditation is for the protection and benefit of law students.

If (1)-(4) are true, (particularly (4)), then I'm not sure why the ABA even speaks to tenure at all.  We have already assumed that the ABA provides accreditation for the benefit of law students, not law faculties. The ABA is not a collective bargaining unit or a union.  The ABA is not the AAUP or even the AALS.   The ABA is not a labor organization.  Therefore, I'm not sure why benefits of law faculty employment are under the auspices of the ABA at all.  So, though I like my tenure, I'm not sure that I can rally any arguments as to why my tenure should be an ABA requirement.

Now, from my time spent teaching legal writing, I'm aware of pro-student arguments for tenure.  Dedicated, full-time, professional teachers are better teachers and enhance the student experience.  A rotating stable of short-term teachers, new teachers, adjuncts, or part-time teachers will not produce overall quality experiences for students.  As Director of Legal Writing at one law school, I kept track of the student evaluations of our thirty-plus adjuncts and a handful of full-time teachers.  Yes, number of years teaching was a main predictor of student evaluations, as was full-time status and on-campus status.  (None of the teachers were tenured.)  But, this data alone does not convince me that the ABA needs to mandate tenure-for-most or tenure-for-all to achieve quality teaching.  First, if the ABA wants to ensure quality teaching by having stability in faculty ranks, then it could create guidelines for attrition or long-term contracts.  Second, I would look to clinical programs and legal writing programs to see if untenured actually equals more turnover.  It could, but it might not and I would want to know that.  Third, if the ABA is genuinely concerned with quality teaching, then tenure seems a little counter-productive as it creates no incentive to maintain the quality of teaching.  Yes, we can all assume that having a faculty entirely of adjuncts would not yield extraordinary teaching, but the theory that having a faculty entirely of those who cannot be fired seems to strain logic as well.  If we were taking these theories out for a roadtest in front of focus groups, neither would pass the straight-face test, I fear.

Of course, none of this is to say that I don't think there are some good reasons for law schools to adopt tenure policies -- for recruitment, in lieu of high salaries, etc.  Or, that I could not be convinced that tenure plus some other sorts of provisions will yield the best teaching environment.  I'm not going to go out and burn my tenure undergarment or anything -- I love my tenure.  But I would leave this decision to the law schools themselves.  Perhaps this would give some law schools the freedom to distinguish themselves in other ways and create different types of learning experiences for students -- more practicum, more service-learning, etc.  The ABA doesn't tell law firms that they must have equity partnership routes for associates in order to protect and serve clients, and I don't see a more cogent connection between tenure and student learning in the educational environment, either.

In a nutshell, in order to be up in arms about the possibility that the ABA will remove the tenure requirement from its accreditation standards, I would need to be convinced to some degree of at least two things:  (1) that tenure standards are for the benefit of students, not faculty and (2) that there is some empirical basis on which to assume that tenure systems (as opposed to other types of employment contracts) ensure quality teaching.


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