ABA Standard 405(C): Two Steps Forward and One Step Back for Legal Education

Abstract

There has long been opposition to guaranteeing that all full-time law faculty have security of position and participation in faculty governance the same as or substantially similar to tenure. ABA Accreditation Standard 405(c), was meant to provide such security of position and faculty governance for clinical faculty, though this standard has not been consistently interpreted to do so. The situation for legal writing faculty is even more precarious, because the standards only require a law school to provide legal writing faculty with the security of position and other rights necessary to attract and retain well-qualified faculty. As a result, most legal writing faculty, and a large number of clinical faculty, do not have a form of security of position reasonably similar to tenure, nor do they have the right to participate in faculty governance in a meaningful way. This article examines the importance of tenure, or the equivalent security of position, to securing academic freedom for law faculty. Next, it summarizes the history surrounding the enactment of Standard 405(c), opposition to it, and efforts to remove the accreditation requirement at least some law faculty have tenure. The article concludes that in light of the history of Standard 405(c) and efforts eliminate security of position form the ABA Standards, it is unlikely that Standard 405 will be amended to provide a path for equal status for all full-time faculty and improve the status of clinical and legal writing faculty in the foreseeable future.

Keywords: tenure, legal writing faculty, clinical faculty, tenure, security of position, academic freedom, due process, ABA Accredititation Standards, Standard 405