A RETIRING DEAN
by Harry J. Haynsworth
One of the most
interesting, perplexing and frustrating issues I have struggled with in my 14
years as a law school dean[i]
is trying to figure out exactly what issues are appropriate to submit to the
faculty for its determination, what issues should be submitted to the faculty
for input, consultation or information purposes but not a faculty vote, and what
issues are properly determined solely by the dean and administrative staff of
the law school, the university administration or the university’s Board of
Trustees. In recent years I have
consciously tried to limit the number of issues that will ultimately come before
the entire faculty for its vote of approval.
One reason for this is my frustration with the time it takes to get
something approved by the faculty.[ii]
Discussions at both the committee and faculty meetings are often
protracted and repetitious and occasionally acrimonious.
Frequently, procedural and process questions take up far more time than
the discussion on the merits. As
a practical matter, only a few issues ever get voted on at any faculty meeting.[iii]
This in turn means that during the course of an academic year, there are
a limited number of issues that the faculty will decide, with the total number
being determined by the number of faculty meetings.[iv]
Some of the
inefficiency of faculty decision making could be ameliorated by changing the
paradigm of a faculty meeting from that of a legislative body, where everyone
feels he or she must say something for the record, to a business meeting where
there are strictly enforced decision timelines set at the time an issue is
time limits on discussion, and great deference given to committee
Distribution of the agenda with action items clearly indicated several
days in advance of the scheduled meeting can also help to make faculty meetings
more efficient, especially if committee reports are in writing and attached to
the agenda. Faculty debate at a
meeting can be significantly shortened if interested faculty share their views,
including proposed amendments, by email (or in some other form of communication)
prior to the faculty meeting and refrain from repeating their e-mail statements
at the meeting. A consent calendar
for routine matters and non-controversial items like new courses, which can be
approved by a single motion, can also save meeting time.
Even if faculty
meetings were more efficient and more issues could be submitted annually to the
faculty, there are still hundreds of issues annually on which the faculty should
have notice, or opportunity for input, but no decision-making vote.
My own view is that
the only issues where the faculty should be the primary decision maker are those
involving curriculum and other aspects of the educational program (e.g., grading
policies and graduation standards), admissions standards and policies, and
faculty status (hiring, voting rights, promotion and tenure).
For other matters
faculty participation often takes the form of representation on various advisory
committees or task forces that include other stakeholders (e.g., staff,
students, and sometimes, outside constituencies such as alumni.
On many other matters, however, such as the law school budget the
faculty’s role is more indirect. The
actual determination of the budget is an administrative matter,[vii]
but the faculty has significant indirect impact on the budget through its
decisions on the number of new faculty to be hired, the admission standards and
target for the size of the entering class, policies on the maximum number of
students in various classes or courses, approval of new courses, requests for
new equipment and the like. The
faculty’s interests are also generally represented by the various deans on the
budget team who are members of the faculty.
The faculty should, of course, receive information about the budget
before it is submitted for final approval, as it should be informed of most
other matters of importance, [viii]
even those where the faculty has no direct or indirect role in the decision
I have been told
more than once that my views on faculty governance boundaries are much too
narrow and not in accordance with the traditions of academia and the practices
of most faculties. My research on
the subject, however, has convinced me that my basic conclusions are sound and
are supported by respectable authority.
between what is appropriate for faculty determination and what is not is the
subject matter of “shared governance,” an elusive concept that has been the
subject of much analysis and debate in academic circles for generations.
The basic guidelines and conventions for shared governance are contained
in policy documents developed by the American Association of University
The basic precepts are also incorporated in the ABA Standards for
Approval of Law Schools.[x]
The basic AAUP
document is the Statement on Government of Colleges and Universities,[xi]
approved in 1966 (“Statement on Government”).
The paradigm in the Statement on Government is a governing board that has
de jure final authority over all
matters, but delegates primary authority over some matters to the faculty and
over most other matters to the President and other administrators.
With respect to the faculty, the Statement on Government states:
The faculty has primary responsibility for such fundamental areas as curriculum,
subject matter and methods of instruction, research, faculty status, and those
aspects of student life which relate to the educational process.
On these matters the power of review or final decision lodged in the
governing board or delegated by it to the president should be exercised
adversely only in exceptional circumstances, and for reasons communicated to the
The following table[xiii]
summarizes the shared governance principles incorporated in the Statement on
1966 Statement on Government Plus 1957
Recommended Institutional Regulations on Academic Freedom and Tenure
Determination of mission
Strategic decisions and
Physical and fiscal resources
Budgeting and distribution of
Decision to create a program,
department, school, college, division, or university
Decision to declare financial
Selection and assessment of
the president and deans
governing board and its administrative agents have primary responsibility
for these decisions, but the decisions should be informed by consultation
with the voting faculty.
Procedures of student
Standards of faculty
competence and ethical conduct including faculty appointments and faculty
Policies for admitting
Standards of student
Maintenance of a suitable
environment for learning
Judgments determining where
within the overall academic program terminations for financial exigency
Bona fide decisions to
discontinue a program or department of instruction when no financial
exigency is declared
voting faculty should have primary authority over decisions about such
matters—that is the governing board and administration should “concur
with the faculty judgment except in rare instances and for compelling
reasons, which should be stated in detail.”
Classroom (and other)
professor has primary authority over such matters subject to peer review
for competence and ethical conduct, and ultimate review by the board
described immediately above.
The provisions in
the ABA Standards for Approval of Law Schools on shared governance are not
nearly as detailed as the AAUP governance policy statements.
The Standards contain only three statements about the role of a governing
board. Standard 203 says that an
independent law school “shall be governed by a governing board composed of
individuals dedicated to the maintenance of a sound program of legal
education.” Standard 204(a) says:
“A governing board may establish general policies that are applicable
to a law school if they are consistent with the Standards.”
Finally, Standard 205(a) says that the dean of the law school shall be
“selected by a governing board or its designee, to whom the dean shall be
The ABA Standards
dealing with the authority of the dean and the faculty are more explicit.
Standard 205(b) says, “A law school shall provide the dean with the
authority and support needed to discharge the responsibilities of the position
and those contemplated by the Standards.”[xiv]
There are several standards that deal with the governance rights of the
faculty, but all of them, except one, provide for joint authority between the
dean and the faculty. The one
exception is Standard 205(d), which deals with the role of the law school
faculty in the selection of a dean. It
says: “The faculty or a
representative of it shall advise, consult, and make recommendations to the
appointing authority in the selection of a dean.”
Interpretation 205-1 of the ABA Standards states:
The faculty or a
representative body of it should have substantial involvement in the selection
of a dean. Except in circumstances
demonstrating good cause, a dean should not be appointed or reappointed to a new
term over the stated objection of a substantial majority of the faculty.
The fact that the
Standards require only that a dean candidate not be appointed if a substantial
majority of the faculty affirmatively votes against that candidate will surprise
and maybe even shock many faculty who feel that they should have the final say
on who becomes the dean. The
Standards do not say that the faculty cannot have more authority in the dean
selection. Standard 205 merely
states what is minimally required. In
many, if not most law schools, the input of the faculty is greater than is
required by Standard 205. Most law
schools, for example, have formal or informal procedural rules that require at
least a majority or supermajority vote of the entire law school faculty as a
prerequisite for a recommendation that a decanal candidate be approved by the
The basic Standard
describing the joint authority of the dean and the faculty is Standard 204(b),
dean and the faculty shall formulate and administer the educational program of
the law school, including curriculum; methods of instruction; admissions; and
academic standards for retention, advancement, and graduation of students; and
shall recommend the selection, retention, promotion, and tenure (or grating of
security of position) of the faculty.[xv]
The allocation of authority between
the dean and the faculty with respect to shared responsibility is set forth in
Standard 206, which states:
allocation of authority between the dean and the law faculty is a matter for
determination by each institution as long as both the dean and the faculty have
a significant role in determining educational policy.
Standard 206 says, in effect, that
as long as both the dean and the faculty have “a significant role” with
respect to the law school’s educational policy, the Standard has been met.
Each law school is free to decide how to allocate the authority between
the dean and the faculty with respect to the multitude of educational policy
issues that arise. Most law schools,
for example, have a policy authorizing the dean to make an independent
recommendation with respect to the faculty’s vote on hiring, promoting or
granting tenure to a member of the full-time faculty.
The actual allocation is usually incorporated in law school bylaws,
policy statements, or protocols adopted for specific issues not covered in the
bylaws, for example, a written document approved by the faculty setting out the
procedures that must be followed and the faculty vote necessary to authorize the
dean to make an offer to a faculty prospect.
The allocation on issues that are not covered in written documents is
often based on the dean or faculty’s memory of how the issue was handled the
last time it was considered and a determination of whether the prior precedent
should be followed.
There are going to
be numerous issues, however, where there is neither a written policy nor a prior
undocumented precedent in the institution’s memory bank.
The allocation of authority on these issues depends largely on the law
school’s traditions with respect to faculty governance and the dean’s
attitude toward faculty governance. Needless
to say, the decision on how to process these issues can be the source of
friction, particularly when the dean expects to operate under a “strong
dean” model and the faculty wants to operate under a “weak dean” model
where the faculty is the primary decision maker and the dean is essentially a
first among equals whose responsibility is to carry out the faculty’s will.[xvi]
paradigm incorporated in the ABA Standards is consistent with the governance
guidelines in the AAUP Statement on Government, discussed earlier.[xvii]
The basic structure is exactly the same.
The governing board of the university (or the law school in the case of
an independent law school) is the ultimate policy making body.[xviii]
It has the final say on all matters and the authority to overrule any
decision made by an individual or group of individuals in the institution.[xix]
The dean of the law
school is the chief executive officer and chief academic officer of the law
school and has the managerial authority that is normally accorded a CEO under
In an independent law school, the dean often has the dual title of
President and Dean to underscore the CEO status.
In a university-affiliated law school, the dean occupies a position that
is essentially the equivalent of the President or CEO of a major corporate
The ABA Standards
also seem to envision a faculty governance role that is basically consistent
with the Statement on Governance. Standard
204(b) gives the faculty the right to “formulate and administer the
educational program of the law school.” Standard
204(b) then defines the educational program in terms of the curriculum, methods
of instruction, admissions, graduation requirements, and faculty hiring and
status, essentially the same areas where the faculty has primary authority under
the Statement on Government.[xxii]
A high degree of deference and great weight should be given to the
faculty in these areas because of the expertise of the faculty with respect to
the educational program and also, at least with respect to the determination of
faculty status, academic freedom principles.[xxiii]
The frustration I
and many others have with faculty governance would be significantly reduced if
faculty decision processes were more like those in business organizations.
The frustration would be further reduced if a faculty would be willing to
restrict its decision-making role to the law school’s educational program,
admissions and faculty status issues.[xxiv]
These are the areas in which faculty have the greatest expertise.
Moreover, faculty decisions in these areas will be accorded greater
weight by others in the decision-making chain if these boundaries are respected.
This does not mean
that law school faculty cannot have any input in other matters.
The input can take many forms, including decanal consultation with the
entire faculty before final action is taken, access to information about
important actions affecting the law school before or at least simultaneously
with any public announcement of the action, or faculty representation on an
advisory committee or task force that makes recommendations to the dean.
The particular form of the input can vary depending on the issue and the
traditions of the law school.
I am not suggesting
a return to the old fashioned iron-fisted dean who ruled the law school as a
virtual dictator. What I am
advocating is a meaningful role for faculty governance in the areas where the
faculty has the most expertise. I am
also suggesting a return to the more traditional view of shared governance
envisioned by the AGB Statement on Governemnt and the ABA Standards.[xxv]
What is more important than the educational program, admissions and
faculty status? By focusing on these
critically important matters,[xxvi]
and leaving the determination of other issues to the administration of the law
school or the university, faculty will have more time for student contact,
teaching, scholarship, and service. Instead
of complaining about a loss of control and governance rights,[xxvii]
most faculty I know would welcome a reduced administrative role.[xxviii]
Returning to this more traditional view would also help reduce the
long-standing tension between law school faculty, many of whom have a tendency
to think of shared governance as self-governance over everything, and law school
deans, who must have the authority to manage the law school in a cost effective,
President and Dean,
of Law. A.B. (1961), J.D. (1964)
; M.A.R. (1988) Lutheran Theological Southern Seminary.
of Law (1990-95),
of Law (1995-2004). I also
served one year as an Acting Dean and two years as Associate Dean at the
University of South Carolina School of law.
My frustration is shared by many others.
The Association of Governing Boards, a national professional service
organization for governing boards of colleges and universities, states in
the AGB Statement on Institutional Governance (1998) (“AGB
Statement”) at page 4:
governing boards, faculty members, and chief executives believe that
internal governance arrangements have become so cumbersome that timely
decisions are difficult to make, and small factions often are able to impede
the decision-making process.
Alternatively, in the quest for
consensus or efficiency, the governance process sometimes produces a
“lowest common denominator” decision, which does not adequately address
My experience is that the first action item on the agenda will, with rare
exceptions, be debated for at least 30 minutes before a vote is taken.
Except for special meetings for issues like voting on hiring of new faculty
and tenure matters, the faculties I have been on think one faculty meeting
per month is the appropriate operating rule.
As is the case with most issues, not every faculty member agrees with
this rule. Many faculty I know
have told me that they think faculty meetings are a waste of time because
nothing is ever accomplished. They
want to have as few faculty meetings as possible.
Others have told me they really enjoy the give and take of a debate
in a faculty meeting and think that we need to have more issues debated by
the faculty and therefore have more than one meeting a month.
See, AGB Statement, supra, note 2, at 8:
and chief executives should establish deadlines for the conclusion of
various consultative and decision-making processes with the clear
understanding that failure to act in accordance with these deadlines will
mean that the next highest level in the governance process may choose to
act. While respecting the
sometimes lengthy process of academic governance, a single individual or
group should be not empowered to impede decisions through inaction.
Duplication of a committee’s careful consideration of an issue by the
faculty, meeting as a committee-of-the-whole, is a natural tendency, but is
also a serious time-wasting exercise.
Technically, the governing board, or by delegation, the university
administration approves the budget but the law school administration makes
the resource allocations in accordance with the parameters set by the board
or the central administration. See
AGB Statement, supra, note 2 at 8.
There are some issues, however, where because of privacy and confidentiality
considerations the faculty have no right to any information, e.g., the
rationale for personnel actions involving the law school staff.
American Association of University Professors, AAUP Policy Documents
& Reports, (9th ed. 2001), known and hereafter cited as
the “Redbook” because of the color of its cover.
American Bar Association Section on Legal Education and Admissions to the
Bar, Standards for Approval of Law Schools - 2002-03 (2002),
hereafter “ABA Standards.”
See Redbook, supra note 9 at 217. There
are several other AAUP policy statements that address various governance
issues, including: On the Relationship of Faculty Governance to Academic
Freedom; Faculty Participation in the Selection, Evaluation, and Retention
of Administrators; and the Role of the Faculty in Budgetary and Salary
In 1998, the Association of Governing Boards
published its own Statement on Institutional Governance.
It differs in several respects from the AAUP Statement on Government,
but for the most part the areas where the faculty has primary authority are
essentially the same. See
Neil W. Hamilton, Academic Ethics - Problems and Materials on
Professional Conduct and Shared Governance, 55-65 (2002).
Redbook, supra note 9 at 221.
The president should also give great deference to faculty decisions
in those areas where the faculty has primary authority.
See Keetiie Ramo, Assessing the Faculty’s Role in Shared
Governance 36 (1998).
Neil W. Hamilton, supra, note 11
ABA Standards, supra note 10,
Interpretation 203-1 says the governing board of an independent law school
“should authorize the dean to serve as chief executive or chief academic
officer, or both and shall define the scope of the dean’s authority in
compliance with these standards.”
The other standards that discuss the joint authority of the dean and faulty
are Standard 202(a), which says: “The dean and faculty of a law school
shall develop and periodically revise a written self-study…[which] shall
describe the program of legal education….”; Standard 602(b) which says:
“The dean and director of the law library, in
consultation with the faculty of the law school, shall determine library
policy (italics supplied); and Standard 207 which allows alumni, students
and other constituencies to be involved in “a participatory or advisory
capacity”, but goes on to say: “…the dean and faculty shall retain
control over matters affecting the educational program of the law school.”
See Frank T. Read, “The Unique
Role of the
Dean: Academic Leader or
Embattled Juggler,” 31 U. Tol. L.Rev. 715, 720 (2000).
notes 12 and 13 and accompanying text.
See ABA Standard 106(7)
(“‘Governing Board’ means a board of trustees, board of regents, or
comparable body that has ultimate policy making authority for a law school
or the university of which the law school is a part.”)
See Revised Model Nonprofit
Corporation Act §8.01(a)
(1988) (“…all corporate powers shall be exercised by or under the
authority of, and the affairs of the corporation managed under the direction
of its board”).
Robert C. Clark, Corporate Law 3.3.1 (1986) (actual and apparent
authority of president as chief executive or general manager of a
See Association of American Law
Schools, Law Deanship Manual 3 (1993) (“the law dean, unlike most
other academic deans, is both chief executive officer and chief academic
officer of all functions of a largely self-contained academic unit. … Thus
the law dean’s position is much more analogous to that of the president of
a small independent college than it is to other intra-university
See the text accompanying notes 12 and 13, supra.
The Statement on Government also states that the faculty should have
primary authority with respect to “those aspects of student life which
relate to the educational process.” Redbook,
supra, note 9 at 221.
Although there is no equivalent language in the ABA Standards, there
is nothing in the Standards that would prohibit the faculty from having a
decision making role on student life issues, particularly those that are
directly related to the law school’s educational program.
See Redbook, supra, note 9 at 224-227 (Statement on the Relationship of Faculty
Governance to Academic Freedom).
The authority of the faculty in the selection of a dean is, under ABA
Standard 205(c) to “advise, consult, and make recommendations.”
The language used in ABA Standard 204(b), on the other hand, states
that the dean and the faculty “shall formulate and administer” the
educational program. The
Self-Study in ABA Standard 202 is supposed to “describe the program of
legal education,” and therefore really comes under the umbrella of ABA
Standard 204(b). The approval of
library policy is “in consultation with the faculty” under ABA Standard
This viewpoint is also consistent with the AGB Statement on Institutional
Governance (1998), which has been criticized as imposing a corporate
style of management on higher education institutions.
See, e.g., Jonna Vecchiarelli Scott, “The Strange Death of Faculty
Governance,” PS: Political Science and Politics 724 (Dec. 1996).
See, e.g., Rena I. Steinzor and
Alan D. Hornstein, “The Unplanned Obsolescence of American Legal
Education,” 75 Temp. L.Rev. 447 (2002) (Stresses the need for law schools
to institute a process that results in continuous and systematic curriculum
See Scott, supra, note 25 at 724-26. See
also William L. Waugh, Jr., “Issues in University Governance: More
‘Professional’ and Less Academic,”585 Annals 84 (Jan. 2003). (Annals
of Political and Social Science).
See Waugh, supra note 27 at 94.
See Jeffrey O’Connell and Thomas
E. O’Connell, “The Five Roles of the
Dean: Leader, Manager, Energizer, Envoy, Intellectual,” 29 Emory L.J. 601,
630-39 (1980). There will still
be gray areas as to what is and what is not an educational program,
admissions or faculty status issue. The
resolution of these issues should be documented in some fashion for future
use. How the joint authority of
the faculty and dean (both must have a “significant role” under ABA
Standard 206) is allocated on issues that fall under the umbrella of
educational program, admissions and faculty status must also be clarified by
each law school. Whatever
arrangement is agreed to should be incorporated in the law school’s bylaws
or some other written document. These
understandings should be reviewed on a regular basis and modified when the
allocation has changed or should change in some material respect.