Midyear Meeting

ABA legal ed section gets an earful on tenure, other proposals

The governing council of the ABA Section of Legal Education and Admissions to the Bar got an earful of feedback this week on its latest proposed changes to the law school accreditation standards.

Much of the feedback came in response to the council’s tentative decision to eliminate the so-called tenure requirement in the current standards. But several commentators also voiced support for a 15-credit-hour experiential learning requirement and an aspirational goal of 50 hours of pro bono service for each law student.

The council has tentatively approved two alternative approaches to the current tenure requirement, which requires tenure or a comparable form of security of position for all full-time faculty members except for clinical professors and legal writing instructors.

One alternative would require law schools to provide some form of security of position short of tenure to all full-time faculty members, including clinical professors and legal writing instructors. The other would not require tenure, but would require law schools to show they have policies and procedures in place to attract and retain a competent full-time faculty and protect academic freedom.

That proposed change is just one of many the council has posted for notice and comment. But it was the one that drew the most fire at a pair of public hearings on the proposed changes Wednesday and Thursday in conjunction with the ABA’s Midyear Meeting in Chicago.

In fact, out of the 16 people who spoke at the two hearings, 10 voiced opposition to the elimination of the tenure requirement from the standards. One of those who did—DePaul University College of Law professor Terry Smith—said he was speaking on behalf of more than 600 fellow law professors with “well in excess” of 1,000 years of combined teaching experience.

Critics contend that the elimination of tenure as an accreditation requirement would threaten academic freedom, stifle dissenting points of view and retard efforts to recruit and retain minority law professors.

“What do the proponents of this [proposed] change know that these people don’t?” Smith asked.

American University Washington College of Law professor Elliott S. Milstein—a past president of the Association of American Law Schools and speaking on behalf of 20 of the association’s 26 living past-presidents, including himself—said eliminating tenure as an accreditation requirement would be “untenable and dangerous.”

“Law professors in a democracy play a special role as advocates for justice,” he said. “The academic freedom that tenure guarantees is at the core of carrying out that role.”

Several speakers also endorsed proposals that would require law schools to provide at least 15 credit hours of experiential coursework and set an aspirational goal of 50 hours of pro bono service. But David Udell, executive director of the National Center for Access to Justice at Cardozo Law School, said 50 hours of pro bono service should be a requirement for graduation.

“Aspirational is good,” he said, “but mandatory is better.”

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