The basis of their arguments in favor of tenure is that "lack of tenure protection for professors will cause a negative impact on academic freedom, the creation of safe space for dissenting voices, and recruitment and retention of minority law professors . . . Notably, tenure facilitation meaningful academic freedom by protecting a law professor's ability to engage freely in the teaching and writing of groundbreaking subjects."
I would disagree that many law professor's "engage freely in the teaching and writing of groundbreaking subjects." Most law professors teach the same subjects from the same books based on the same old appellate court opinions, regurgitated from the teacher's outline. Most scholarship, bluntly, is non-peer reviewed garbage, read by a handful of people. Just like there has been a glut of JD's for decades, the glut of legal scholarship reduces the value of the average article.
Tenure for law professors is a sweet deal. Who wouldn't want comfortable, low-stress jobs, complete with six figure salaries in a never-ending contract?
No one could dispute the importance of academic freedom, creation of safe spaces for dissenting voices, and removing discrimination from employment in any field. However, those arguments in support of leaving tenure as is seem tacked on, and typical of elites trying to protect their privileged position by invoking certain sacred cows.
As it is the AALS Section on Minority Groups, I expect them to focus on traditionally under-represented minorities in legal education. However, it seems curious to me that they invoke tenure as a way to increase diversity, as tenure benefits all law professors, regardless of skin color or sex.
They also lob a thinly-disguised attack on the racial motives of the ABA's proposals by questioning the timing of the tenure-reducing suggestions just as "such protections are beginning to accrue increasingly to nontraditional groups."
The timing of such tenure-weakening proposals are made in light of the crisis in legal education, which are economic in nature, and have nothing to do with attacking rising minority groups in legal education. And as I, and many others believe, the ABA's proposals, some of which are interesting and possibly helpful, are still ludicrously short of what needs to be done: greatly reduce the number of law students and the cost of educating said students. (If an attack on tenure causes racial bombs to be thrown, just imagine the outcry in the future debates about closing low-performing law schools, having an LSAT requirement standard for accreditation, and the most important one: eliminating subprime student loans).
The AALS Section on Minority Groups at least accurately (if perhaps grudgingly) acknowledges that the articulated reasons for removing tenure protections are economic. They quote Dean Maureen O'Rourke, who identifies that law schools' largest fixed costs come from tenured law professors, and that
"the solution is not to give everyone tenure, but to give no one tenure. Frankly, we don't need 200 law schools that look like Harvard Law School and value the same things as Harvard Law School. Somewhere down the line, the students get lost."
Of course, the AALS Section on Minority Groups "find Dean O'Rourke's arguments unpersuasive." They note that law schools can reduce their fixed costs by "curtailing hiring or declaring a financial exigency, among other options" (which are not later articulated). First of all, most law schools have curtailed hiring, and many are trying to get rid of senior faculty by buying them out. Second of all, financial exigency is a red herring because it would be the last resort of any law school, short of all-out closing, because if any law school would publicly admit that their admissions would crash and they would close anyways.
Instead, the AALS Section on Minority Groups (from now on, "SMG") distracts away from the issue by insisting that O'Rourke misses the point, misconstruing her statement to mean that she believes that "legal education would somehow be improved if law schools paid less to their most experienced teachers."
The reason that the ABA is even putting forth a weak recommendation that endorses weakening tenure, again, is the pop of the legal education bubble.
No longer can the quality of legal education be solely measured on the "quality" of the classes (which are taught using outlines and unhelpful casebooks) and the ability for law professors to produce legal scholarship thanks to their low "work" hours. The SMG cannot hide from the fact that legal education prepares students for the legal profession. Not only are law graduates not prepared for law practice, but they are not financially prepared.
A law graduate with $1200 loan payments, earning $45,000 a year for 60 hour workweeks in a small firm isn't going to care about the "quality" of their classes, as defined by the SMG. However, this argument is made with the assumption that the SMG cares about what happens to law students after they graduate. However, the word "debt" and "outcome" are never mentioned, and "salaries" are only mentioned in conjunction with law professors. As O'Rourke said, "somewhere down the line, the students get lost."
Frankly, the SMG becomes a parody of the legal establishment, and themselves, near the end.
Two notable gems:
Legal education, indeed, higher education more broadly, has prioritized core values that include academic freedom and debate, intellectual curiosity and rigor, diversity and social justice.(as they criticize the private sector, "where some see short-term maximization of shareholder profit as the primary value.")
Law schools have acted like any rent-seeking institution, justifying their enrichment in an inefficient market, propped up by oodles of taxpayer cash, by invoking their favorite "feel-goodisms."
Their other fun quote:
Too often, in faculty hiring and tenure decisions, "flexibility" has resulted in the exclusion of minority professors. "Flexibility" perpetuates the status quo of underrepresentation of minority professors in legal education."I really have to laugh at their description of "flexibility," especially in the year 2013. It reminds me of invented "racist code words." "IRS." "Incompetent." "Entitlement society." And now we have another one: "flexibility."
Not surprisingly, the letter ends with a call for "more diverse representation" on the ABA Council, and calls the "omission of important demographic groups" a "process failure."
There are many that call the Council's Draft Recommendation a failure. It doesn't go far enough, but we can only wait to see what the final version is like, and if it is actually acted upon.
In the meantime, we can see what sort of weak defenses establishment figures and groups make defending the status quo, such as the letter by the SMG here.