An end to tenure at law schools?

August 18, 2013

As law schools nationwide look for ways to cut costs to offset declining enrollment, changes that could threaten job security for law professors are drawing mixed reactions from legal educators in the Washington area.

The group that accredits the nation’s law schools this month approved two proposals that loosen accreditation rules requiring law schools to have full-time faculty — which includes tenured professors and tenure-track instructors — to teach most classes.

The first proposal would require law schools to offer full-time faculty some form of job security short of tenure; the second would not require any job security as long as schools attract and retain full-time faculty and protect “academic freedom” — meaning they could not fire a faculty member if, for example, they wrote a book with controversial or unpopular ideas.

The proposals, approved by the Council on the Section of Legal Education and Admissions to the Bar during the American Bar Association’s annual meeting this month, now goes to public comment, giving lawyers, professors and others in the legal industry time to weigh in. The more popular of the two proposals could go into effect as early as 2014, said Barry Currier, managing director of the ABA Section of Legal Education and Admissions to the Bar. The initiatives are part of a broader review of accreditation standards the ABA does periodically.

Some law school deans are applauding the changes to tenure, saying it would give them more flexibility in deciding how long to keep faculty employed. Many law schools are seeing enrollment and application numbers drop, and fewer students means less demand for permanent faculty — and less tuition money to pay their salaries.

The change “would be helpful because we could acquire faculty without getting into a lifetime relationship,” said Daniel Polsby, dean of George Mason University School of Law. “The demand for legal education ebbs and flows. Sometimes we get more customers, sometimes less ... As a manager with a budget, I want the ability to respond.”

Tenured faculty salaries are a fixed cost that make up about a quarter of the law school’s budget, and anything that could help limit fixed costs is a good thing, Polsby said. Like many law schools, George Mason’s first-year class is smaller than in years past — 160 first-year law students enrolled for 2013-14, which fell short of the school’s enrollment target of 200.

“Most of the big salaries I have to deal with are instructional faculty,” he said. “A tenured faculty member is a fixed cost. I would like to have fewer fixed costs and more flexibility to decide whether I want someone for one semester or one year or three semesters or six semesters.”

Not all of Polsby’s counterparts agree. William Treanor, dean of Georgetown Law, is concerned the changes could undercut the mission of law schools, which is to promote dialogue, even when opinions may clash.

“Security of contract gives faculty members the freedom to challenge current legal rules,” Treanor said. “If that’s not protected, that really undermines their ability to engage in the kinds of activities that help their students think critically about the law. You want people with different points of view to be part of the conversation. That’s why we have tenure. It’s a critical part of promoting academic freedom.”

Changes to faculty tenure are the latest sign that the economics of the legal industry, which once held the promise of lifelong job security, are changing. Law school tuition has been rising much faster than the rate of inflation. In 2011, tuition for private law schools was 2.5 times what it cost in 1985, after adjusting for inflation, according to Law School Transparency, a nonprofit that seeks to make legal education more affordable. Tuition for public law schools was 5.3 times as expensive.At the same time, the economic collapse that began in 2008 forced many law firms to dramatically reduce the number of first-year lawyers they hired, leading to the lowest levels of employment for new graduates since 1996, and a growing proportion of them carrying loans of $120,000 or more.

“The reason this is a pressing issue now and not three years ago is because of the ever-increasing concern about the cost of legal education,” Treanor said. “There are fewer opportunities for students to earn the kind of big salaries that made it an economically wise decision to take on the cost of law school tuition. So as there are fewer high paid jobs, there’s a greater focus on how you cut costs so that it becomes economically sensible for students to enroll in law school.”

It was

2.5

times more expensive to go to private law school in 2011 than it was in 1985.

Catherine Ho covers law and lobbying for Capital Business, which she joined in 2011. She was previously a reporter at the Daily Journal in Los Angeles, covering LA civil courts and labor and employment law.
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