by Harry J. Haynsworth *

Introduction

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 submitted,[v] time limits on discussion, and great deference given to committee recommendations.[vi]  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 process.

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. 

The boundary 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 Professors.[ix]  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 faculty.[xii]

The following table[xiii] summarizes the shared governance principles incorporated in the Statement on Government:

1966 Statement on Government Plus 1957 Recommended Institutional Regulations on Academic Freedom and Tenure

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 responsible.”

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 appointing authority.

The basic Standard describing the joint authority of the dean and the faculty is Standard 204(b), which states:

The 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:

The 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]

The governance 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 corporate law.[xx]  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 subsidiary.[xxi]

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, efficient manner.[xxix]