In 2008, the Section on Legal Education and Admissions to the Bar of the American Bar Association commenced a comprehensive review of the accreditation standards for American legal education. By July of 2011, most of the revised standards and rules of procedure had been drafted, discussed and approved by the section's Standards Review Committee ("SRC") and were ready for submission to the council. However, the SRC's revised accreditation policies were not submitted for action by the council until 2014, more than six years after the review process began, as a result of decisions made by section leaders. The revised standards were particularly noteworthy for addressing several of the most significant accreditation issues facing legal education and higher education nationally, including: the need for greater focus on student learning outcomes and assessment of student learning; the utility of a common admission examination; a greater focus on educating for lawyering skills and competencies; and a sufficiently ambitious minimum bar success rate applicable to all law schools. In nearly all respects the review was both comprehensive and successful. However, at the end of the lengthy process, the council was unable to approve a few highly important provisions. Those provisions, referred to as policies pertaining to "terms and conditions of faculty employment" (T&CE) and protection of academic freedom, are the subject of this article.
The article provides a look at the history of the efforts undertaken during the comprehensive review to revise and improve the accreditation policies concerning T&CE and faculty academic freedom and describes why, at the conclusion of the comprehensive review, the council failed to address them. In particular, the article describes the constituencies consulted and the factors considered by the SRC in drafting revised T&CE standards and how the proposed revisions addressed complex issues concerning rights, duties, and status of all law faculty. The article contends that the council failed its leadership responsibilities by refusing to make a decision among several options that it had requested when confronted by competing interest-group preferences. The article concludes with some encouragement to the council to take the leadership initiative and address the perplexing, and likely to be enduring, difficulties of the T&CE policies, given the likelihood that, in the future, the current standards will need to be amended to resolve their ambiguities.
Donald J Polden & Joseph P. Tomain, Standard 405 and Terms and Conditions of Employment: More Chaos, Conflict and Confusion Ahead, 66 J. Legal Educ. 634 (2017)