I know you all saw the Barbie movie, but if you haven’t, please go do that now. I’ll wait. For those of you who did not follow my directions,[1] there are spoilers ahead.
The Barbie movie is about a lot of things, some aspirational (like a completely matriarchal society), and others just simple human quests to understand the point of being alive.[2] Generally speaking, our protagonist is a standard Barbie who suddenly becomes aware that she is living in a fictional world and isn’t quite sure why she is there or her purpose. She goes on a journey to try to find answers and (your interpretation may vary) figures out that the journey to seek answers is the key to being human and while being human has its downfalls (emotions, aging, pain, the patriarchy, etc.), it is what she needs to be.
Those of us in ASP are similarly on a journey to figure out our purpose and place in law school academia. The status of ASP folks is a little all over the place. Some of us are Deans; some are faculty; some are staff; some are at-will employees. But extremely few of us are tenured or even are afforded tenure-like job security. I have written about this many times. But there was a brief glimmer of hope over this past summer when the ABA proposed the following amendments to Standard 405 (as well as Definition 9 which defines "full time faculty" under 404 and 405):
“(c) To attract and retain a competent faculty, and to secure academic freedom as outlined in Standard 208, a law school shall:
(1) Afford all full-time faculty members, other than visiting faculty members or fellows on short-term contracts, tenure or a form of security of position reasonably similar to tenure.
(i) “A form of security of position reasonably similar to tenure” means such security of position as is sufficient to attract and retain a competent faculty and to ensure academic freedom. Providing such security of position requires that, following an appropriate probationary period, a full-time faculty member may be terminated or suffer an adverse material modification to their contract only for good cause. Such good cause determination shall be made only after the full-time faculty member has been afforded due process.
(ii) Full-time faculty members need not all be subject to the same rules regarding tenure and security of position.[3]”
Cue up Etta James’ “At Last”[4]
The ABA goes on to say that a change in ASP status is needed because (among other reasons), "When faculty members lack security of position, it undermines the quality of legal education and harms law students. Non-tenure track faculty members in the areas of academic support/success and bar readiness report being afraid to help students who have substantive questions about doctrinal areas of law because they fear that a tenured faculty member will complain to the dean that the academic support faculty member is trying to teach Torts, Contracts, or some other substantive doctrinal area of law. This fear has led many faculty members without security of position to limit their assistance of students to the “skills” aspect of teaching which frustrates the efforts of students who seek out academic support to ensure their own academic success through full understanding of the substance of legal doctrine as well as the skill of applying legal doctrine."[5]
I would also add that people who have an entire faculty (or just one Dean) determine their employment also lack a voice and cannot freely engage in political speech or other aspects of academic freedom enjoyed by those who need not fear offending anyone in order to keep their job. This proposal might be the end of that boxed in feeling.
But let's wait a moment before rejoicing.
In ASP, we are not all considered faculty (although by other ABA current and proposed metrics, we should be based on our roles and responsibilities). For ASP professionals who are still considered staff by their institutions, the ABA then goes on to take away any cause for celebration by including an explanation of the parameters of the proposed change to Standard 405 that says,
“A significant addition to Standard 405(c) is the requirement that the director or supervisor of the academic success, bar preparation, field placement, and legal writing programs have tenure or a form of security of position reasonably similar to tenure. This requirement does not necessitate transforming a staff position into a faculty position: the requirement can be satisfied by having a faculty member with tenure or security of position reasonably similar to tenure overseeing these programs. For example, if a law school’s academic success/support unit is comprised of staff members and these staff members are supervised and overseen by an associate dean – or other faculty member who has tenure or security of position reasonably similar to tenure – the law school can satisfy Standard 405(c).”[6]
In other words, under this proposed “change” law schools don’t have to convert ASP staff to faculty members to follow this standard. It is sufficient if you appoint an anointed adult to supervise them and that this person alone has tenure. This seems like relegating ASP to be the help rather than family.
Again.
And here’s the thing: we should be family. We are the folks that bolster rankings by improving bar pass rates (Standard 316), and lowering attrition, and closing gaps before the bar is ever undertaken (Standard 308). Law schools cannot meet other ABA Standards without us. We often are the faculty who teach Professional Identity Formation (Standard 303), and we are absolutely required under Standard 309 in order for a school to be ABA Accredited,
“Standard 309. ACADEMIC ADVISING AND SUPPORT
(a) A law school shall provide academic advising for students that communicates effectively the school’s academic standards and graduation requirements, and that provides guidance on course selection.
(b) A law school shall provide academic support designed to afford students a reasonable opportunity to complete the program of legal education, graduate, and become members of the legal profession.”[7]
So, if we are not fundamental to the essence of a law school, what are we made for?
Billie Eilish (and her talented brother) wrote the multiple award winning “What was I made for?” song for the Barbie movie, and in it, they ask,
“…
Takin' a drive, I was an ideal
Looked so alive, turns out I'm not real
Just something you paid for
What was I made for?
…
Something I'm not, but something I can be
Something I wait for
Something I'm made for
Something I'm made for.[8]”
Please feel free to send your comment (right now because comment closes today) to the ABA.[9] Add your voice to the AASE/AALS comment filed earlier.
Tell the ABA to stop relegating ASP to second class status.
We do more.
We impact more.
We were made for more.
(Liz Stillman)
[1] Feel free to get on the non-follower line behind my kids, husband, and pets….
[2] I agree that was a fast switch, but again, I am not asking for almost 2 hours of your attention here.
[3]https://www.americanbar.org/content/dam/aba/administrative/legal_education_and_admissions_to_the_bar/council_reports_and_resolutions/aug24/24-aug-notice-comment-standard-405.pdf
[4] https://www.youtube.com/watch?v=1qJU8G7gR_g
[5] https://www.americanbar.org/content/dam/aba/administrative/legal_education_and_admissions_to_the_bar/council_reports_and_resolutions/aug24/24-aug-notice-comment-standard-405.pdf
[6] Id.
[7] Id.
[8] https://en.wikipedia.org/wiki/What_Was_I_Made_For%3F
[9] Per the ABA, "We solicit and encourage written comments on all the proposals listed above. Please note the changes to the submission instructions as follows: All written comments should be addressed to David A. Brennen, Council Chair, and sent electronically as a .pdf attachment to NoticeandComment@americanbar.org by October 14, 2024."
