Putting legal writing on the tenure track: one school's experience.

• Author: Christopher, Catherine Martin
• Position: The More Things Change ... Exploring Solutions to Persisting Discrimination in Legal Academia

This Article discusses the statistics behind the gendered segregation of law school faculties, in which women occupy a disproportionate number of legal writing and other low-status positions, while men continue to hold a disproportionate number of tenured faculty positions. The Article explores the rationales for and against converting legal writing faculty to tenure-track, and shares one law school's experience of doing so. The Article then suggests lessons and approaches that other schools may wish to take in converting their own legal writing faculty to tenure-track positions.

INTRODUCTION

Law school faculties have a gender disparity problem. Tenured and tenure-track faculty members, who typically have better job security and higher pay, are disproportionately male, while legal writing faculties, who generally have less job security and less pay, are disproportionately female. One way to reconcile this gendered imbalance of status, security, and pay is for law schools to convert legal writing faculty to tenured and tenure-track status. (1) This Article discusses the statistics behind the gendered segregation of law school faculties (Part I), and explores the rationales for and against converting legal writing faculty to tenure-track (Part II). The Article then shares one law school's experience of converting legal writing faculty to tenure-track (Part III), suggesting approaches that other schools may wish to take in converting their own legal writing faculty to tenure-track positions (Part IV).

1. Gendered Roles Within Law Faculties

   Women have been historically underrepresented on law school faculties, (2) and distressingly, the problem persists despite awareness. Numerous studies and articles document the painfully slow rise in the number and status of female law faculty, and the segregation of female faculty to specific courses. (3) Lamentations about how few women serve on law faculties have been made since at least the 1970s. (4)

   Nationally, women remain a minority on law school faculties, (5) and the women who are present are often segregated (or more provocatively, "ghettoized"6) into the "women's work" (7) of law schools: clinicians, librarians, and legal writing faculty. (8) This assertion is supported by current data from the American Bar Association (9):

   While it is heartening that the tenure-track faculty is nearly half women and half men, women continue to make up a disproportionately large share of 405(c) status, (10) "full-time skills," "full-time writing," and "other full-time" positions. (11) Women also comprise a small proportion of deans, but outsized proportions of the housekeeping roles of associate or vice deans, assistant deans, and directors. Hiring women but keeping them low-status does not solve the problem of gender bias. (12)

   Legal writing, along with clinical and librarian roles, remain lower-status (13) as compared to so-called "doctrinal" (or "casebook" or "podium") professors. (14) Low status correlates with low pay, lesser titles, and other indicia of inferiority. (15) Gender disparity exists even among legal writing faculty: among directors of legal writing programs, "being a man means earning a substantially higher salary and enjoying a better status [than a woman in a comparable position]...." (16)

   Some theorize that women are steered (or relegated) to legal writing because of conscious or unconscious biases about the role and ability of women. (17) Fortunately, we are past the days when a male faculty member can flatly say of a female faculty candidate, "I can't work with someone that ugly," (18) but biases that remain are subtler. (19) For example, there is an expectation widely held among faculties (and students) (20) that legal writing requires a nurturing relationship between faculty and student, and that women are best suited for that kind of work. (21)

   The subtlety of this bias makes it harder to identify and disrupt, yet it must be disrupted. Among other reasons, keeping female faculty segregated from male, and keeping them in lower-status roles at the law school, sends obvious signals to the student body about the role, contribution, and value of women in the law school and the legal system as a whole. (22)

2. Rationales For and Against Legal Writing as Tenure-Track

   Historically, legal writing has not been a tenure-track faculty position for various reasons. One reason is plain discrimination, as discussed in Part I, above. Another explanation has been couched in free-market terms: if legal writing faculty members are willing to work for less pay and less status, law schools would be irrational to pay them more. (23)

   Some law schools have (or used to have) adjunct-driven legal writing instruction. (24) Another economic consideration for such law schools instituting dedicated legal writing faculty is the financial difficulty inherent in hiring multiple new full-time employees without dedicated faculty lines. (25)

   Another argument against tenure-track legal writing positions deals with written scholarship. Tenure exists largely to protect a professor's academic freedom, which includes written scholarship. (26) With tenure, a professor is able to research and advocate for politically unpopular positions without the threat of being fired. (27) Most legal writing faculty members are not required to produce written scholarship, (28) so the protection of tenure for this kind of academic freedom is unnecessary. This may, however, be a chicken-and-egg situation: do legal writing faculty members not need tenure because they don't produce scholarship, or do they not produce scholarship because they aren't eligible for tenure? Presumably, legal writing professors whose job descriptions include scholarship expectations would publish.

   Most legal writing faculty currently have status and job security less than tenured or tenure-track status: while approximately 16% of legal writing faculty are tenured or tenure-track, approximately 31% are 405(c) or 405(c)-track, and the remaining 53% have employment contracts of one, two, three, or more years. (29) ABA Standard 405(d) sets out the minimum employment protections for legal writing faculty, requiring that they merely have "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 to provide legal writing instruction ... and (2) safeguard academic freedom." (30) By comparison, standard 405(c) requires law schools to provide clinical faculty with "a form of security of position reasonably similar to tenure[.]" (31) Clearly, "such security of position ... as may be necessary" and "reasonably similar to tenure" are not the same as tenure, (32) and those without tenure suffer from the denial. (33)

   On the other hand, credible arguments suggest that legal writing should be a fully tenure-track position.

   Tenure confers more than job security; it also confers voting rights for faculty members to shape the law school's policies, hiring, and governance. (34) Some but not all legal writing faculty nationwide have voting rights on faculty governance matters, and even those who do have voting rights may not have full voting rights equivalent to those of their tenured and tenure-track colleagues. (35) Certainly, legal writing faculty should be full participants in law school and faculty governance. Legal writing professors have the same ability as doctrinal professors to assess the needs of the institution and attempt to better the educational experiences of the students--these faculty work in the building, interacting with students, other faculty, and staff, and may even have better insights into student needs and wants given the close relationship they often develop with students. By contrast, failing to give tenure to legal writing faculty members restricts their ability to participate in the development and evolution of the institution where they work. (36)

   Tenure is also a mark of achievement and respect. Denying legal writing faculty even the opportunity to obtain tenure sends the message to the students that legal writing, despite being required for graduation (37) to say nothing of being a fundamental skill required for the daily practice of law), is a less important skill set and course than other classes offered at the law school. It also suggests that the people teaching legal writing--mostly women--are less important than those teaching other subjects. (38)

   This is certainly untrue; legal writing is a crucial part of a law student's education. Indeed, the American Bar Association requires an accredited law school's curriculum to contain only three things: a professional responsibility course, an experiential learning course, and writing experiences. (39) Constitutional Law and Torts are not required, but legal writing is. (40)

   Legal research and writing courses are also some of the most pedagogically sound educational experiences in the law school. The best practices in legal education include student-faculty contact, cooperation among students, active learning, prompt and frequent feedback, effective time management, high expectations, and respect for diverse talents and diverse ways of learning. (41) All law school courses promote high expectations and time management, but legal writing courses excel in the other best practice areas, with small classes and multiple real-world simulations. (42) Multiple drafts of multiple writing assignments (43) provide students with better feedback than a single exam, which is typically not graded or returned until weeks or months have passed. (44) Legal writing class time is spent in a diverse array of teaching activities, including lecture...