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Wednesday, February 10, 2010

The PrawfsBlawg Interview: Michael Olivas on the Future of Legal Education

Michael A. Olivas is the William B. Bates Distinguished Chair of Law and Director, Institute of Higher Education Law & Governance at the University of Houston Law Center, and one of the academy’s most respected immigration law scholars. He is president-elect of the AALS and a former General Counsel of the AAUP, but, as part of a series on legal education I plan to post during my visit, I asked him to share his personal views by email on some questions about the direction of legal education.

JC: One of the greatest benefits of being a law faculty member is discretion, autonomy, and flexibility. We set our own hours, and choose our projects. But some serious things have happened in the last two years, putting pressure on admissions, development and placement within the law school, as well as the practice of law itself. Some believe that legal education will change rapidly in the next few years, and that some schools may not survive. Given the difficulty in raising tuition substantially in this market, and the unlikelihood of substantial increases in state appropriations or private donations, one of the few available sources of support will be more or different work from the faculty itself.

MAO: These issues ebb and flow, and I think that in the collegiate sector (that is, not the proprietary sector or virtual, online law schools, or unaccredited programs), the challenges will not significantly affect legal education over the long haul. I do believe that we have too many law schools, and that some of the developments are detrimental, but the overall enterprise is solid. The nation-state requires lawyers, and the fundamentals are sound. I hope I am right in my reading of the tea leaves.

JC: Will the institution of tenure interfere with changes individual schools must make?

MAO: No more so than any number of other interrelated and moving parts. In order for a law school to attract a high level of faculty for the difficult years ahead, tenure is an essential component; any school that attempts to field a first rate faculty without it will find it very difficult to do so, and will have to spend an extraordinary amount of time evaluating faculty at regular intervals in order to make a go of it. One of the reasons tenure exists is because it is like democracy--the worst of all situations except plausible alternatives, for which there are none. Those few collegiate institutions that do not offer tenure can only field contingent, freeway-flying instructors-of-record, not real faculties. They have great turnover, and must resort to evaluations that are toothless and not meaningful.

JC: For example, say that a Dean determines that most classes must have a writing component or address the law of the states where students are most likely to practice. Assume here and for the other questions non-discriminatory application of general standards and policies. Can administrations impose these sorts of changes?

MAO: No real dean can do so in splendid isolation of her faculty. This is a quintessential example of faculty governance, the faculty who must not only determine what shall be taught, but how it shall be taught. Any dean who wishes to implement such curricular direction must lead her faculty to agree to do so, or it will not be done effectively or efficaciously. Only the collective faculty can determine what the overall emphasis should be, or what the individual parts are. If a faculty believes that it must teach more statutory law, or offer more writing across the curriculum, or emphasize better bar passage, only it can plan and more importantly, monitor and oversee such programmatic decisions. And the real work occurs in classes, in writing labs, in libraries, and in moot court rooms.

JC: Can deans make faculty teach more, or teach different courses?

MAO: Within reason, yes. More importantly, the only way that an effective faculty workload policy can work is if the faculty, collectively, determines an overall agreement, subject to the individual assignments that each individual must implement. I cede authority to the institution to determine if I teach on MWF or T Th, and at 8:00 am or 6:00 pm. Only if the group makes the overarching policy will individuals fit into their assigned places within the overall scheme. I have no intrinsic academic freedom privilege of teaching one class on the law of food, to be offered at my favorite Mexican restaurant on Mondays and Wednesdays at noon. At the same time, I think it is wrong to be an independent agent, simply doing whatever I personally feel is good for me. In my personnel decisions, I favor work horses over show horses, and communitarians over freelancers. But by trying to turn faculty into flexible, contingent, pliable workers, deans and presidents may get what they want--uncommitted, disloyal, free agents.

JC: What happens if faculty don’t comply?

MAO: Ninety nine percent of the time, these are fairly resolved within the agreed upon framework. If I do not meet my obligations, fairly agreed upon, or if I am a derelict outlier, I would expect to be dismissed. I assume good faith on both sides, and have rarely seen this system not work. When it does, it is because it breaks down, or one side or the other is not acting fairly or honestly.

JC: Can these sorts of changes happen only if the faculty approves?

MAO: That is my premise--approves and shares in governance. How could it be otherwise? All else is pushing string. And courts will always hold recalcitrant faculty to be invoking matters of private concern, not academic freedom.

JC: A recent National Jurist article accused some law professors of sloth. My experience overall is that we work hard; and let’s stipulate that our colleagues are energetic and brilliant. On the other hand, some few in our business do not treat law teaching as a full time job. There are some tenured faculty who do not write, and/or whose teaching is not admirable. Do law schools have recourse against tenured professors who do too little work or don’t do it well?

MAO: In my experience, people who gravitate towards law teaching are self-motivated, and the best deans do no harm to that instinct. In public schools, many states have enacted post-tenure review procedures that address some of these issues, but existing law and practice allows any serious dean who provides due process to act and remove any staff or faculty who do not perform their duties adequately. There are any number of carrots and sticks for academic leaders, provided that they act responsibly and fairly. There may be a small and irreducible number of employees who do not perform, or perform as well as they might, but any organization will have a wide spread of talent and accomplishment; the trick is not to "fire the deadwood," a term I have never liked, but to try and find a meaningful way for faculty to do their work. There are sanctions and rewards available to all academic leaders and to all faculties.

JC: If there is recourse, how do you explain the tiny numbers of detenurings, other than for criminal conduct, sexual harassment or the like?

MAO: I consider this to be evidence that most people do their work, and that many of those who are not producing are eased out by tenure review, post-tenure review, regular and thorough evaluations, and the range of more ratcheted remedies available. I also believe that most people contribute by pulling their weight in one or more of the various ways that faulty govern their own work. People who are no longer productive in their labs may undertake different responsibilities; people whose productivity has changed over time may take on more responsibilities in other areas where they are needed; many scholars have arcs to their lives, where their work priorities and talents evolve and change over time. Not everyone runs, fields, and hits equally well over the course of their career. In life generally, few people are triple threats, or are so every year. But I resist the notion that either tenure or academic freedom are featherbeds or refuges for unproductive people.

JC: What sort of changes do you predict in the next few years?

MAO: I see more restructuring that will squeeze out the ranks of fulltime faculty, intended to render the teaching ranks much more contingent and more "flexible." The various initiatives to restructure are classic Trojan Horses, and are false economies. On a given day, I do any number of things that do not add to my market value or move us up in the rankings: I discuss issues with my students and former students, write letters of recommendation, sponsor them for clerkships and supervise them in various events, advise them in their organizational development, and facilitate their professional advancement. Which part time faculty will do these things? Who will undertake service, make accreditation decisions, conduct Saturday workshops for prelaw undergraduates, recruit faculty and student talent, carry the organizational water, make all the evaluation decisions and class visitations? Only a fully committed and accomplished faculty member can and will do these thankless chores as a part of one's work ethic and portfolio. We may not all be Mr. Chips, but neither are we slackers or featherbedders. In my experience, those who can, teach.

JC: Michael, thanks very much for these interesting and insightful comments.

Posted by Marc Miller on February 10, 2010 at 10:56 AM | Permalink

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There is obviously room between "full tenured professor" and "fly by night instructor," e.g., long-term renewable contracts. But you'd never know that from the responses in this intervewi.

Posted by: JD | Feb 11, 2010 2:49:03 PM

Opportunity to Learn

Just as I can point to lack on joy and motivation, I can point to adult learners that preferred to be guided. I can also point to situations where the instruction did not meet the initial needs articulated by the learners because the instruction itself changed the learner's and their stated needs………….

legal education

Posted by: jamesd | Apr 12, 2010 11:04:34 AM

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