Should We End Tenure?

School of Law Tenure Is law school tenure preventing law students from receiving a quality education? This isn’t a new debate, and it’s one we’ve written about before. However two recent developments have taken the discussion to another level. The first is a recent tenure case out of California. In Vergara v. California, Los Angeles Superior Court Judge Rolf M. Treu declared that California’s teacher-tenure laws were unconstitutional. Judge Treu reasoned that the law, which allowed teachers to receive tenure after just 18 months, unfairly forced the worst teachers upon poor and minority students. The alternative, going through the dismissal process, could take 10 years and cost up to $425,000.

What Is The Purpose Of Tenure ?

U.S. tenure protections arose out of the labor struggles in the 19th century. Teachers wanted protection from arbitrary dismissal by administrators and parents. First professors and then schoolteachers received these protections, protections which have withstood many battles, including the culture wars of the twentieth century.

Yet, in this century, the holding in Vergara is a statement by a California court that not only does the system not work effectively but it’s unconstitutional in its application.

Now Vergara won’t apply to law schools, at least to the vast majority of them. The reasoning in Vergara relied partially on the disproportionate burden on poor and minority students, and partially on California teachers receiving tenure after only eighteen months of evaluation. Generally speaking, neither applies in the law school setting. However, Vergara comes in the wake of the second major development on the tenure horizon – the ABA’s wholesale rejection of law school tenure reform.

The accreditation arm of the ABA is called the Council and Accreditation Committee of the ABA Section of Legal Education and Admissions to the Bar. The Council is authorized by the U.S. Department of Education to accredit law schools.

In March 2014, the Council voted to not revise Standard 405(b). Promulgated in 1973, Standard 405(b) states that a law school must have “an established and announced policy with respect to academic freedom and tenure.” In 1999 and 2003, the Standards Review Committee recommended abolishing 405’s tenure requirement. Both efforts were defeated. In 2013, the cause was picked up again. In March 2014 it was again defeated. The members could not agree on a plan that would have assured job security without requiring schools to grant tenure. Therefore, as of this writing, law schools are still required to offer a tenure policy to their faculty.

So tenure remains at law schools. It still retains its original goal – to prevent school administrators from unjustly firing professors with controversial opinions. Moreover, in this rankings-focused, hyper-competitive market, tenure allows law schools to attract and retain high quality talent who can increase the academic value of a school and add to the legal scholarship canon. As Ohio State law professor Peter Shane writes:

[T]he most important, most enduring, and most practical skills law school hones are critical thought, effective communication, and a broad familiarity with law’s conceptual frameworks, distinctive vocabulary, and advocacy techniques. Scholars steeped in these skills deliver not just the public value of their research, but also the value their students gain in the classroom from learning these skills from experts.”

Yet, as the debate goes, many of these legal scholars have experience almost entirely in academia alone, with little real-world practicing experience. Moreover, with the current system, schools cannot easily dismiss inefficient professors. The demand for legal educations ebbs and flows,” says Daniel Polsby, dean of George Mason University School of Law. “Sometimes we get more customers, sometimes less…. As a manager with a budget, I want the ability to respond.”

It’s also debatable whether tenure is a utilized institution, protecting the academic freedom of controversial professors. Most professors only receive tenure after a long, thorough, very political, vetting process that ensures that they will fit into the school climate. While not a law professor, MIT Professor Sanjoy Mahajan could only name one living, active professor who would be fired from his University if he didn’t have tenure. Moreover, as law professor Stephen Griffin explains, the decision to extend tenure is made on a university-wide basis. “If this is the case, it is unlikely that the ABA Standards have ever played a causal role in providing tenure to any particular faculty member.”

So there we are. The historical arguments for tenure. The modern arguments against. And the law faculty and administration divided on both sides. Where do we go from here?

I titled this post not “Should Law Schools Abolish Tenure?” or “What Can Deans Do About Tenure?” but rather, “Should We End Tenure?” That “we” is me, you and everyone reading this post. The ABA is a volunteer organization with 400,000 members. The Section of Legal Education is a volunteer section with 10,000 members. The Council and Accreditation Committee is a volunteer council with 21 voting members. 10 of those members must be lawyers, judges, and members of the public. 1 of those members must be a law student. All of those people are you.

The collective “we” has written dozens of articles, hundreds of blog posts, and thousands of forum comments on law school reform. Yet if we want to reform law schools, if we want to ensure our opinion is heard, “we” need to work proactively with the organization that can exercise the power to make that reform happen. There needs to be more than just one person showing up at ABA hearings when tenure reform is under discussion. The ABA is governed by the people, for the people, and of the people. As we approach this 4th of July, let us remember what that kind of government can achieve.



John Edwards, our intern from Loyola University Chicago School of Law, contributed to this post.

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