The ABA Section of Legal Education and Admissions to the Bar made some changes in light of the cries for law schools to earn their tuition.  One change it did not make was the elimination of tenure as a requirement of accreditation.  This was their chance to rid the academy of the cost of carrying dead weight, crusty professors who cost a fortune despite being on cruise control.

The argument for tenure has long been grounded in academic freedom, the ability of scholars to take controversial positions without fear of losing their jobs.  It’s morphed somewhat to variations on the theme, to incorporate inclusory politics into the mix.

Critics of the current standard, of which there are many, question the need for tenure as an accreditation requirement. They also say the requirement has helped to drive up the costs of a legal education, perpetuates a caste system and limits law school flexibility in staffing.

But supporters of the existing standard, including more than 600 law school professors, say the elimination of tenure as an accreditation requirement would jeopardize academic freedom, stifle dissenting points of view and retard efforts to recruit and attract minority law professors.

The committee deadlocked on tenure.  Unsurprisingly, the beneficiaries of tenure tended to support it.  As a staunch critic of how law schools fail to serve the profession, my natural inclination was against tenure. But that would be a mistake.

Sure, if there was no tenure requirement, schools might not do it. Of course, the law schools seeking the most renown scholars would still have tenure, as a perk of employment to attract the top-tier of academia, who would reasonably be disinclined to trade teams if they weren’t assured of being secure in a new position.

But the merit of tenure is real, and increasingly so as schools become more politically correct. Even with tenure, the fear of being branded a heretic remains a strong incentive to avoid being too controversial, too disagreeable, with whatever fashion trend is sweeping academia.

Only a handful of lawprofs have shown the slightest inclination to challenge sacred cows, and they would be out on their butts in the absence of tenure.  Academia is particularly harsh with those who don’t adhere to the party line.  Talk with them privately and you come to realize how many disagree with some of the more strident, and politically correct, voices. Yet, coming out publicly against this month’s flavor of scholarship means they won’t be invited to the faculty teas.  They really want to be part of the gang, and not a pariah.

But what of the problems with tenure?  What about the lazy, crazy, uncaring, and downright sucky old prawfs who haven’t contributed squat in decades?  They suck at teaching. They suck at scholarship. And they won’t go away. Are we stuck with them because of tenure?

It’s unclear how much of a problem the old codgers really are. Does every school have a dozen of them on the payroll?  Are they really as bad as the caricature makes them appear?  Even if they are past their heyday, are they so bad that they aren’t worth having around?  And do they really suck as much of the money out of law students’ pockets as the rest of us fear?

It’s hard to answer these questions. Radical law students will give one answer. Administrations another.  Other lawprofs have their own perspective, sometimes self-serving and usually tainted by the mitigated language of the Academy.  It’s not that there aren’t truths in there, even if we are more willing to agree with those who confirm our own views.  But if the problem is with expensive, over-the-hill codgers clogging the tubes, isn’t there are better way than eliminating tenure to address these failings?

One answer seems to be the way tenure is handed out.  Award it more cautiously, more sparingly, and to those whose interest and capabilities deserve a guaranteed job for life.  While this could rid the corps of those marginal prawfs who will put it on cruise control at their first opportunity, it’s not enough to fix the issues.

One thing I’ve come to recognize in dealing with lawprofs is that they want the approval and respect of their peers. The financial rewards of being a lawprof are good, but the glow wears off quickly.  What they want is recognition, to be thought of by other prawfs as having something worthwhile to offer. There is a craving for respect.  That leaves them highly subject to peer pressure.

Peer pressure is the antidote for the lazy, incompetent prof.  If prawfs support tenure, then it’s incumbent upon them to toughen up and call out the chafe among them.  With tenure comes responsibility, not just for those who enjoy its protections but for those who care about students. If their concern for students isn’t just lip-service, then protect them from the dead wood.

But the likelihood of the Academy toughening up, calling out the bad profs and making waves is slim.  It cuts against the grain, and means putting themselves at risk. After all, who wants to speak ill of their own, especially  a prawf who might have been beloved once or somewhat renown.

It’s understandable. It’s also the price of tenure.  As hard as it may be to do right by your school or your students, it’s also hard for them to pay so a lawprof can spend the rest of his natural life collecting a paycheck on the backs of students while producing nothing of value.  And if it’s too much to ask of lawprofs, then eliminating tenure is still possible.  Your call.