To: Council of the Section of Legal Education and Admissions to the
Bar, American Bar Association
From: John Elson, Professor of Law, Northwestern University School of Law
Date: July 21, 2008
Re: Comments on Report and Proposals of Special Committee on Security of Position
I. The Special Committee’s proposed Standard #2 would undercut ABA
Accreditation’s essential mission of assuring that approved law schools are
adequately preparing students for the practice of law.
Were it the purpose of ABA accreditation to promote the research and job
interests of law school faculty, the Special Committee’s alternative Standard #2 might be
appropriate. In light, however, of the ABA’s unique mission of assuring the courts, law
students and the public that approved law schools are preparing students for the
competent and ethical practice of law, this alternative proposal can only be deemed a
backward step.
The starting point of the Committee’s analysis should have been with the ABA
House of Delegates’ intent in enacting the current Standard 405c. House members then
made clear their understanding that security of position for a critical mass of clinical
teachers was needed in order to build an experienced cadre of law teachers who would be
dedicated both to preparing clinic students for the practice of law and to developing law
school curricula responsive to students’ developmental needs as professionals. As the
Special Committee Report recognizes, 405c has brought about significant improvements
in legal education. As a result of its requirement that clinical programs must be
“predominantly staffed” by 405c eligible faculty, the majority of ABA-approved law
schools have been able both to create educational programs that are the pride of their
schools and to hire and retain clinical faculty who have often assumed leadership roles in
their own schools and in legal education generally. By eliminating the “predominantly
staffed” requirement, the alternative proposal threatens to return to the days when clinical
faculty were almost all short-term contract employees who did not have an opportunity
either to develop their own sophisticated instructional programs nor bring their
professional knowledge and priorities to the forefront of schools’ curricular planning.
The supposition that schools would voluntarily continue to hire a majority of
their clinical teachers on presumptively renewable long-term contracts is belied not only
by the fact of ALDA’s unflagging fight to have 405c repealed, but, more importantly, by
the competitive pressures now motivating the law school faculty market. The many deans
represented by ALDA would not be waging their sustained attack on 405c if they did not
want the freedom to hire their clinical teachers on an at-will or short-term contractual
basis. In this regard, they are acting as rational market actors by wanting to allocate as
much of their faculty resources as they can to the research faculty whose scholarly
productivity largely determines their rankings. Moreover, in light of both the
increasingly theoretical nature of legal scholarship and the competition among law
schools to hire cross-disciplinary PhDs, whose background and interests are usually not
in how law should be practiced, this would be a particularly bad time to eliminate 405c.
As the nation’s law faculties become more remote from the practice of law and the need
for experienced teachers whose core mission is preparing students for the practice of law
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becomes correspondingly greater, the repeal of 405c threatens the existence of exactly the
type of law teachers who are now most needed to fulfill the ABA’s mission of assuring
that approved law schools are adequately preparing students for the practice of law.
The Special Committee’s rationale for its proposed Standard #2 is that existing
405c is unnecessary in light of the proposed standard’s reiteration of current Standard
405a’s requirement that schools must “maintain conditions adequate to attract and retain
a competent faculty.” Reliance on a requirement of a competent faculty to assure the
effectiveness of clinical programs, however, is misplaced for two reasons. First, the fact
that a law school’s clinical teachers must be competent does not fulfill 405c’s original
goal of assuring that law schools develop a cadre of experienced clinical teachers.
Second, as discussed below, without fundamentally restructuring how competency is to
be determined, this proposed Standard will be as ineffective as the current two faculty
competency standards are in subjecting law faculty to meaningful assessment of their
competency.
II. Proposed Standard #2’s requirement that schools maintain conditions to attract
and retain a competent faculty would be ineffectual as written.
I am not aware of any publicly available statistics revealing how often law
schools have been deemed in jeopardy of violating either Standard 401’s or 405a’s
provisions requiring a competent faculty. However, on the basis of my own experience as
a member of the Section’s Accreditation Committee and from conversations with two
former members from different terms on that Committee, it seems clear that findings that
law school faculties are not sufficiently competent are exceedingly rare, if not entirely
nonexistent. This is not serendipitous. The accreditation process is simply not designed to
make judgments as to the general competence of a law faculty, much less the more
refined judgments needed to determine whether clinical teachers are adequate to nurture
the development of students’ lawyering competencies.
Denial of accreditation because too many of a school’s faculty are insufficiently
incompetent would be a difficult judgment for anyone, but especially so for law faculty in
regard to colleagues at other law schools. Such a professional condemnation is so
damning that both Committee and site team members could not be expected to make an
incompetency finding without both substantive criteria that are objective, specific and
transparent and assessment methods that are valid, accurate and reliable. Indeed, the
Special Committee recognizes the need for some objective criteria by suggesting that the
Accreditation Committee consider whether non-tenure-track faculty are eligible for longterm renewable contracts, have a role in governance and have in-service-training and
support. These considerations, however, not only are free to be ignored, but they give no
guidance as to either what constitutes actual competency or how competency should be
assessed.
To make the competency Standard practically enforceable, the Council would
need to approve definitions that would delineate how competency would be assessed both
substantively and procedurally. Adequate substantive criteria for finding competency
would need to explain, at least: i. what proportion of a school’s faculty would have to be
found not competent in order to support a finding that a school does not have “conditions
to attract and retain competent faculty”; ii. what is it that faculty must be competent to do,
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e.g., Socratic dialogue, lecturing, student performance critique, course planning, student
assessment, research and writing; iii. to what extent should competency assessments
make allowances for individual faculty members’ lack of teaching and practice
experience; iv. to what extent should competency assessment be determined on the basis
of student outcomes, e.g. bar passage, job placement, job success, job satisfaction, and; v.
what, if any, kinds of professional development programs must schools have for
identifying and correcting competency problems.
In addition to elaborating substantive criteria to reduce the subjectivity of
judgments as to whether a school has attracted and retained a competent faculty, the site
visit process would need to create assessment procedures to assure that competency
determinations are made in an accurate, reliable and valid manner. Such procedures
would require at least that site team members who are knowledgeable about the
substantive teaching areas of each faculty member under review: i. determine the learning
outcomes the teacher is seeking to achieve and whether those outcomes are appropriate
for the subject matter; ii. assess whether the teaching methods and lesson plans are
appropriate for reaching those outcomes; iii. visit classes to assess podium teaching
skills; iv. review examinations and; v. read student course evaluations. Because site
teams never perform steps i and ii and perform steps iii through v usually on a very
limited and unsystematic basis, Accreditation Committee members undoubtedly
recognize that they can have little confidence in the accuracy and reliability of findings
that a faculty lacks sufficient competence and, consequently seldom, if ever, make such
findings.
In sum, although proposed Standard #2 requiring faculty competence sounds
like a logical, even necessary, standard, its failure to require the foregoing substantive
criteria and assessment methods renders the Standard as written unenforceable as a
practical matter.
III. If there is to be a presumption of faculty teaching competence, it would be more
justified for clinical faculty appointed under 405c procedures than for research
faculty appointed under customary tenure procedures.
Proposed Interpretation 2-1’s presumption that faculty are competent teachers if
they are on tenure-track is an understandable, yet troublesome, accommodation to the
practical problems that would have arisen if the Special Committee had recommended
that all tenure-track faculty be subject to a serious inquiry to determine whether or not
they are competent teachers. Nevertheless, the presumption of faculty members’ teaching
competence just because they are on tenure-track has no evidentiary basis and is belied
by the process at most law schools for hiring and promoting tenure track teachers.
Although lip service is always paid to candidates’ teaching quality, it is well known that
at most, if not all ABA- approved law schools, the decisive factor for hiring and
promotion of faculty members is their reputation and/or their potential for scholarship
production. When teaching quality is a factor, it enters the equation only when scholarly
credentials are not by themselves conclusive. The presumption of competence for tenuretrack faculty is, of course, especially problematic for the increasing numbers of
interdisciplinary PhDs hired on the tenure-track, who, as a result of their backgrounds
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and research interests, are usually unprepared or not inclined to teach what students need
to learn and to do in order to be ready for the challenges they will face in practice.
Conversely, clinical faculty are generally hired and promoted primarily, if not
entirely, on the basis of their teaching. As a result of my 18 ABA site visits, consulting at
various law schools and service on the Accreditation Committee, I am familiar with the
process at many schools for placing clinical faculty on renewable long-term contract
status and have found those processes to be rigorous in their assessments of the
candidates’ teaching philosophy, teaching effectiveness, career teaching goals and law
practice experience. Therefore, if there is to be any presumption of competence, it should
not, apply automatically to all tenure-track faculty, but should instead apply to those
faculty whose appointments have been made pursuant to a process that gives primacy to
their teaching effectiveness.
A further anomaly in the Special Committee’s recommendation that tenure should
be equated with competence is that the competence for which most tenure track faculty
are hired, their scholarship production, has been found to be inversely related to their
longevity on the tenure-track.1 Conversely, a strong case can be made, at least in theory,
that longevity in clinical teaching is positively correlated with teaching effectiveness
since the more practice experience clinical teachers accumulate, the more practical
knowledge they should be able to impart to their students. Thus, although a presumption
of competence for clinical teachers who qualify under existing 405c standards makes
more theoretical sense than such a presumption for all tenure track teacher, there is no
good ground in theory for making any group of faculty immune from a meaningful
inquiry into their competency.
In sum, if the proposed Standard #2 is to be something more than a cosmetic
gesture toward the theoretical importance of assuring a competent faculty, the substantive
and procedural framework of the accreditation process must be thoroughly restructured in
order to make the determination of competence for all law faculty not only valid, accurate
and reliable, but also capable of practical implementation. Restoring 405c to its original
meaning would both avoid the need for such a restructuring and would better fulfill the
ABA’s essential mission of assuring that law schools are adequately preparing students
for practice.
IV. Because the Special Committee’s proposed academic freedom standard is not
consistent with the Special Committee Report’s rationale for that standard, the
proposed standard needs to be both strengthened and clarified.
The Special Committee Report does not indicate the basis for its assumption that
ABA accreditation Standards should seek to protect law teachers’ academic freedom. The
connection is not self-evident if one agrees that the ABA’s primary mission in
accreditation is assuring that law students are being adequately prepared for their
professional responsibilities. Indeed, the injection of academic freedom into the current
version of 405c has under the Accreditation Committee’s recent problematic applications
of that Standard in the Northwestern and St. Louis University cases impeded the ABA’s
1
See, Postlewaite, Life After Tenure: Where Have All the Articles Gone, 48 JOURNAL
OF LEGAL EDUCATION 558-567 (1998).
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professional mission by relegating most clinical faculty at those two law schools to shortterm or at will contracts and, at least with respect to the former school, no requisite role
in faculty governance.
Nevertheless, academic freedom is, of course, a critical value for society, and
one that is especially important for the ABA to recognize in the context of clinical
programs, which are susceptible to attack on political grounds. Therefore, assuming, that
it is the role of the ABA to protect law teachers’ academic freedom, it is worth noting that
the Special Committee’s rationale for such protection is not in fact implemented in its
proposed Standard #1. The Report makes three important points about the role of
academic freedom in higher education: i. it is disciplined-based so that only faculty
members are qualified to make academic judgments regarding academic decisions such
as hiring, promotion, termination on academic grounds and curriculum2; ii. it must be tied
to security of position so that terminations cannot be accomplished for pretextual reasons3
and; iii. the determination of whether a termination is impermissible as violative of
academic freedom must be the prerogative of the faculty or a representative group of the
faculty.4 The proposed interpretation 1-3, however, does not require that employmentrelated academic freedom issues be decided by representative faculty members, but only
that such members be involved in an established procedure “to review the performance of
those faculty for appointment, renewal and termination.” This proposed interpretation,
thus, would take away what the Committee Report’s rationale and proposed Standard 1a
would seem otherwise to require in providing that representative faculty must in fact
agree that a loss of position does not violate academic freedom.
A second shortcoming in the proposed interpretations to proposed Standard #1 is
interpretation 1-2’s presumption that schools with traditional tenure systems are designed
to protect academic freedom. The Report does not make a case for the need for such
presumption and, on the basis of my own knowledge of Northwestern’s policies, there is
good reason to believe many schools with traditional tenure systems do not in fact have
academic freedom policies that would meet the Report’s criteria. Although Northwestern
ostensibly has a traditional tenure system, it has made clear in litigation and other
controversies that the University does not subscribe to the prong of the AAUP’s 1940
Statement on Academic Freedom protecting the economic security of faculty, which
according to the Special Committee report is an essential component of academic
freedom. See Kirschenbaum v. Northwestern University, 312 Ill.App.3d 1017, 1032 (1st
Dist. 1999). Furthermore, as chair of Northwestern University’s Faculty Senate, I can
attest that the faculty’s role in regard to all issues of academic freedom at Northwestern is
Special Committee Report at 8: “Tenure and academic freedom are grounded in the
understanding that faculty are best qualified to oversee academic matters such as the
curriculum and deciding who is qualified to be a tenured faculty member.”
3
Special Committee Report at 10: Tenure is necessary to protect academic freedom
because “it is (not) always possible to distinguish offenses that come under the heading of
abuse of freedom from all other reasons for dispensing with the services of a teacher or
scholar. . . .” quoting Finkin, The Case For Tenure 24 (1996).
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Special Committee Report at 9: “(Tenure) can be terminated for cause so long as the
faculty, or a representative group of the faculty, finds that the termination is not a
violation of academic freedom.”
2
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limited to advice and, moreover, that such advice is frequently disregarded by the
Administration. Given that academic freedom is as important as the Special Committee
asserts it is, schools should not be able to immunize their weak academic freedom
policies from scrutiny because they have ostensibly traditional tenure policies.
Finally, the proposed Standard’s reach as to its protection of clinical teachers’
academic freedom in exercising their teaching functions would benefit from clarification
of its scope. The most glaring uncertainty is whether or not proposed Standard #1b’s
protection of clinical teachers’ exercise of their “teaching function” would protect a
teacher against replacement by a dean who would prefer a teacher with different practice
experience to operate a different type of clinical program? This is not an unlikely
scenario; one of the ALDA deans leading the fight against Standard 405c has cited as one
ground for his opposition to the Standard his desire for the freedom to replace quickly
clinical teachers who supervise students in one area of the law with clinicians who would
start programs in a different area of the law preferred by the dean. Such replacements
would obviously affect the existing clinical teachers’ exercise of their teaching function
and, therefore, would seem to come within the Standard’s literal protection. Indeed, one
must wonder what the point would be of such protection if clinical teachers’ judgments as
to what needs to be taught could be nullified whenever the administration believes
something different should be taught. However, because findings that replacements of
clinical teachers on such grounds violate academic freedom would undoubtedly be
contested, clarification of the scope of this proposed Standard’s protection of the
“teaching function” would seem prudent in order to avoid future disputes.
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John Elson, Professor of