This time around the revolution will not be televised...

Yesterday Vic Fleischer, a respected former colleague with whom I have worked very well with on various administrative committees (and whose opinion I respect tremendously), authored the following argument:

http://dealbook.nytimes.com/2013/07/09/the-unseen-costs-of-cutting-law-school-faculty/

Vic’s conclusion, in his own words, is that, “firing untenured faculty is a shortsighted approach to managing an academic budget. It encroaches on an important principle of academic freedom, namely that a tenure decision should be based on the merit of the case, not the budget of the department.” Vic makes his case in the shadow of Seton Hall’s decision to put all members of its tenure-track faculty on notice that their contracts may not be renewed for the 2014-2015 academic year.

Vic is a tenured faculty member, and has worked his way through the tenure-track maze.  Accordingly, I must concede that he knows – and cares – much more about academic freedom and about the class distinctions between tenure-track and tenured law faculty members than I ever will.  I would like however to offer a rebuttal that, in a period of unprecedented admissions and economic crisis at law schools, Vic’s argument – that we are sacrificing academic freedom on the altar of the University budget – attributes motives to Seton Hall that are simply not present.  Furthermore, and more importantly, Professor Fleischer’s position places the survival of a large and growing number of law schools in immediate peril.

The proving ground for this discussion, Seton Hall Law, merits a bit more back-story. The headline, of course, is the recent news that a year from now the entire junior faculty at Seton Hall may be purged.  However, in advance of this (admittedly drastic) announcement, Seton Hall took two important steps:

(1)  On the cost side:  All faculty took a 10-percent across-the-board pay cut (I suspect that staff took a similar cut, but staff are too often overlooked in analyses, like Vic’s, that focus on faculty comfort and job security); and

(2) On the income side:  Seton Hall admissions imposed an across-the-board “merit-based” 50-percent tuition decrease for all qualified, admitted students.

Make no mistake: Seton Hall is in trouble.  Serious trouble.  As Vic’s (and others’) panicked response indicates, even raising the spectre of terminating some (or all) non-tenured faculty members is an unprecedented step.  Viewed in context, however, it is clearly a “last resort” survival strategy, to be invoked only if the above (1) cutting costs and (2) filling the law school with students fails to keep the law school afloat.

Seton Hall is not alone.  Over the past three years law school applications have plummeted to historic lows:  applications have nearly halved, and are approaching the lowest levels since the 1980s.  (see: http://www.theatlantic.com/magazine/archive/2013/07/the-grad-school-bubble-is-set-to-burst/309399/). Seton Hall Law is in *no sense *attempting to reign in the academic liberties of junior faculty; rather, it is fighting for its very existence.

Herein lies the flaw in Vic’s absolutist “academic freedom” argument.  Seton Hall is not threatening people for what they write or say.  Neo-con tenure-track professors will suffer alongside their neo-marxist colleagues.  If Seton Hall were to accept Prof. Fleisher’s invitation and frame the argument as one of academic freedom, it would miss the forest and run straight into the trees. Put in other words, Seton Hall Law would cease to exist as a school.

Looking at the broader legal education landscape, I submit that Seton Hall is, in actuality, doing the prudent and equitable thing by focusing on its biggest budgetary line item, faculty salaries. All too often, law schools face down short-term budget pressure by cutting support staff.  Although non-teaching staff salaries pale in comparison to faculty salaries (http://work.chron.com/law-school-professor-salaries-8520.html), we have seen this approach play out at schools at both ends of the endowment and tuition spectrum (compare McGeorge, http://abovethelaw.com/2013/07/law-school-slashing-class-size-keeping-tuition-high/ and Harvard,  http://masslawyersweekly.com/2009/07/06/layoffs-at-harvard-rattle-law-school/).

Who can fault Prof. Fleischer and his colleagues for demanding and receiving the salary and privileges that the market might bear?  Who can fault Mr. Fleischer for coming to the defense of threatened, non-tenured faculty members?  In a perfect world – which we in fact experienced during the “fat” years of the 1990s and 2000s – protecting progress along the tenure track for young faculty makes all the sense in the world.  But the go-go years for law schools are long over, and likely are not coming back.  Too many law schools now face an existential crisis:  Law schools are far too often storming the beaches with their faculty and burning their ships behind them.* The problem being that the beach is the school’s budget and the ship consists of the staff and students left behind.*

To conclude, I am not saying that either faculty or staff are any one more important than the other. Quite the contrary, I am saying they exist as intertwined and integral parts of the whole.  But both have to bear the burden of the times –and faculty make up a good deal more of the budget. There are a number of law schools that are afloat only through the good graces of central university support and the timer on such support  may be running out. Faculty and staff alike can revolt at the hard choices being made but the fact of the matter is that hard choices still need to be made. If they are put off, or eschewed for secondary reasons, there very well may be no one around to fight the academic freedom revolution.

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Here is a bit more from the back and forth debate at The Faculty Forum

If the issue were simply a matter of hours put in equates seamlessly to pay and job security, I would be all for categorical faculty job security and pay increases. At the three law schools I have been lucky enough to work at, the overwhelming majority of faculty put in long hours, not just towards research but on behalf on students and even in support of my administrative efforts. From my vantage point this is no different than the hours BigLaw partners dedicate toward their jobs.

But that isn’t the issue. During the Great Recession law firms were laying off partners and associates at a blinding pace, for the simple reason that they were not bringing in new clients. Similarly, for almost all law schools, faculty pay is a function of tuition-driven income. Put another way, very few law school (unlike some of their the central university counterparts) have the security of sizable endowments. That income base is drying up rapidly (and seems to be down yet again for a 4th year in a row)so the point that some seem to be entirely missing is “who is going to foot the salary?” This is going to sound harsher than I mean it to, as again I respect the world out almost all of the faculty I have worked with, but to this notion that there might not be a surreal bubble of security any longer I would simply say “welcome to the real world — we’ve missed your presence” -Mike Spivey