Podia and pens: dismantling the two-track system for legal research and writing faculty.

• Author: Tiscione, Kristen K.
• Position: The More Things Change ... Exploring Solutions to Persisting Discrimination in Legal Academia

At the 2015 AALS Annual Meeting, a panel was convened under this title to discuss whether separate tracks and lower status for legal research and writing ("LRW") faculty make sense given the current demand for legal educators to better train students for practice. The participants included law professors, an associate dean, and a federal judge. (2) Each panelist was asked to respond to questions about the "two-track" system--a shorthand phrase for the two tracks of employment at many law schools whereby full-time LRW faculty are treated differently than tenured and tenure-track faculty. The panelists represented differing views on the topic. This Article grows out of the conversation, information, and ideas that emerged.

INTRODUCTION

Under increasing economic pressure to attract law students, law schools are aggressively marketing their "practice ready" programs. Legal research and writing, as well as other skills programs, are typically featured in marketing materials and on websites. However, even as they are prominently represented in marketing efforts, LRW faculty continue to be underrepresented as full faculty members and suffer as a result in terms of lesser job status and lower salary. The vast majority of LRW faculty are women, many with credentials, practical experience, and teaching loads similar to male faculty. However, female faculty teaching LRW, as well as podium courses, usually have a lower status and earn significantly less than their male counterparts.

A lawyer's ability to analyze the law and communicate effectively is the most critical tool lawyers have. (3) The academy's treatment of LRW faculty, who are singularly focused on preparing students from their first day of law school to think and communicate like lawyers acting on their client's behalf, thus represents a significant equality problem. The current emphasis on skills training makes the status and salary disparity more apparent and more troublesome. While gender-based status and salary disparity is common throughout the United States, law schools should be working to remedy these disparities, particularly since their faculty can be presumed to know the law on gender discrimination. Even those who argue that women law faculty are not at a disadvantage have stated as a matter of principle that "[t]o be foreclosed from rising in an organization because of an inflexible two-tier system is unfair, psychologically and organizationally damaging, and for what it is worth, un-American." (4)

1. The Continuing Disparity in Gender, Status, and Salary

   The over-representation of women in skills teaching positions, particularly legal research and writing, and their under-representation in podium, tenure-track positions are well documented. (5) Legal scholars have been writing about this for over twenty years, (6) referring to legal research and writing and its faculty as a "permanent underprivileged stratum of untouchables," (7) the "pink ghetto," (8) and one of law schools' "dirty little secrets." (9) Yet the perception that teaching legal research and writing is unintellectual "women's work" (10) continues as part of the social fabric of law schools.

   Figure 1 above illustrates the current disparity in status (i.e., rank or security of position) between male and female law faculty. As faculty status decreases, from tenure to 405(c) (11) and then to LRW faculty, most of whom are on short-term contracts, (12) the percentage of women increases from 36% to 71%. (13) Conversely, the percentage of men decreases from 64% to 29%. What is surprising is that the percentage of women teaching legal research and writing has hovered at the 70% mark at least since 2001. (14) (See Figure 2 below.) With respect to clinical faculty, an annual survey conducted by the Center for the Study of Applied Legal Education indicates that the percentage of women in clinical faculty positions has actually risen from 55.75% in 2008 to 63% in 2014. (15) This upsurge may be yet more evidence that women are experiencing barriers to entering law school academia through the traditional tenure route and accepting less secure, lower-paid positions instead.

   Fewer women teach podium courses than men. When they do teach these courses, they earn significantly less than their male counterparts. LRW faculty, who are predominantly women, earn substantially less than both male and female podium faculty. Available data for 2014 suggest that female faculty teaching podium courses earn, on average, 77 to 80 cents on the dollar compared to their male counterparts, and LRW faculty as a whole earn 55 cents on that dollar. (16) (See Figure 3.) The Society of American Law Teachers conducts an annual survey of law faculty salaries, but only a small fraction of schools respond to it. In 2014, for example, 56 out of 200 schools (28%) responded. (17) The highest-ranked, private law schools typically do not respond to the survey, and for that reason, the average tenured faculty salary is likely significantly higher. The average salary of law professors could be as high as $ 172,677 (18) at New York Law School, for example, and $235,482 at Berkeley. (19) When the data are compiled by region, the highest average salary of legal research and writing directors is $119,659, which is 80% of the known average salary of tenured faculty. (20)

   The American Bar Association accreditation rules permit law schools to maintain this status quo. (21) While legal research and writing is one of only two specific courses required for ABA accreditation, and law schools must also provide "at least one additional writing experience after the first year," (22) the rules regarding faculty provide no incentive for law schools to provide better security of position for faculty teaching those courses. (23) This is largely a function of ABA Standard 405 that directs law schools to establish a faculty policy "with respect to academic freedom and tenure," (24) but exempts LRW faculty. LRW faculty are covered under a different rule, 405(d), which states that law schools need only provide "such security of position and other rights and privileges of faculty membership as may be necessary to (1) attract and retain a faculty that is well qualified ... and (2) safeguard academic freedom." (25)

   The Interpretation of Section 405(d) goes even further to undermine the status of LRW faculty by stating that it "does not preclude the use of short-term contracts for legal writing teachers, nor does it preclude law schools from offering fellowship programs designed to produce candidates for full-time teaching by offering individuals supervised teaching experience." (26) Most law schools have taken advantage of this interpretation, and some of the highest-ranked schools still use fellows to teach legal research and writing as steppingstones to podium positions. (27) Thus, despite the recognized importance of teaching these skills, the faculty who teach them continue to have the least security of position under Standard 405. Twenty-one percent of clinical faculty (63% of whom are female) are tenured, (28) while 10% of LRW faculty (71% of whom are female) likely have tenure. (29) Only twelve schools hire LRW faculty exclusively on a tenure track. (30)

   The situation for legal research and writing (and clinical and academic support) faculty is likely to get worse. The ABA recently rejected efforts to abolish or limit tenure under Standard 405(b) (31) and made no changes to 405(d). It did, however, impose new requirements for "one or more experiential course(s) totaling at least six credit hours," (32) on top of the relatively new requirement that law schools establish and publish learning outcomes in all aspects of legal education. (33) Experiential courses include simulation courses, clinics, and field placement, (34) and simulation courses are those that provide "substantial experience not involving an actual client" (35) such as legal research and writing (although the same course may not be used to satisfy more than one requirement under Standard 303). (36) Additional skills training requirements, coupled with current economic challenges due to decreases in applications and enrollment, may tempt law schools to rely on the faculty with the most experience at providing this training and who are also those with the least status and compensation. Anecdotal evidence of this trend is growing. (37) At least one law school has considered increasing the teaching load for its contract faculty without additional compensation. Tenured faculty or law school administrations facing serious deficits may also consider eliminating contract faculty positions as a cost-savings measure and asking those contract faculty left to assume their responsibilities. Another school has terminated and not replaced a legal research and writing professor with 405(c) status without faculty notice or input. It is conceivable and unfortunate from the students' standpoint that some administrators and faculty would support replacing legal research and writing faculty with teaching fellows or adjuncts (38) regardless of the negative impact this would have on student learning. (39)

2. Rationale for the Current Two-Track System

   The minimal protections currently afforded clinical and LRW faculty have been hard won. Although the Carnegie Foundation for the Advancement of Teaching identified the need for skills training in law schools as early as 1921, law schools have consistently resisted broadening their focus to include it. (40) A precursor to current Section 405(c) for clinicians that stated law schools "should" afford "a form of security of position reasonably similar to tenure" was not adopted until 1984. (41) The "should" was replaced with "shall" in 1996, (42) when the ABA also adopted then Section 405(d), requiring that law schools "provide...