IS A DEAN FOR?
Robert Gilbert Johnston*
The question “What is a dean for?” first came to mind when I was
elected by my faculty colleagues to a decanal search committee consisting of
trustees, alumni, faculty and a student. Sam
Maragos, the chair of the committee and vice president of the trustees,
appointed me as secretary of the committee.
Sam and I met to discuss the organization of
and the procedures for the committee.
Once the organization and procedures were settled, Sam asked what the
faculty wanted in a dean. I was
prepared for the question. I gave
Sam the job description for dean that the faculty as a committee of the whole
drafted. Sam quietly and dutifully
read the job description. He then
posed the question, “What is a dean for?” He
first pointed out that from the job description the faculty principally wanted
to hire a prestigious professor and secondarily an administrator.
He then pointed out that the trustees wanted to hire a chief executive
officer to administer the school. He
finally suggested the job description was so broad that, in his opinion, no one
could fulfill the requirements. He
wondered if we could find a candidate who met the requirements, and if we found
one, whether the candidate if hired was doomed to failure because the breadth of
the description could create unrealistic expectations on the part of the various
constituents and individuals at the school.
Sam then assigned me the task of setting out priorities
and explaining them to assist the committee in choosing a candidate for
dean and protecting the candidate chosen dean from unreasonable expectations
based on an overly broad job description. Thus
my quest to understand “What is a dean for?” began in earnest.
Fred Herzog was then dean of the school.
He had a wealth of experience in private practice, government service and
academics. He is an erudite, gentle,
fair person. I thought surely Fred
could answer the question. After
all, he fed, clothed and comforted me. I
scheduled lunch with Fred to pose the question.
Lunch with Fred is an intellectual, scintillating experience.
He speaks about history, politics, soccer, opera and, at times, his
experience as a judge in
before the Nazis drove him out. He
seldom speaks about
business at lunch.
Nevertheless, I posed the question to him at lunch.
He smiled an enigmatic smile and spoke about the future of soccer in the
and the upcoming opera season in
I continued my quest.
Over the next few years I intermittently pursed the question.
I again was elected to a decanal search committee and again appointed
secretary. Later I accepted the
position as associate dean for academic affairs.
I now earnestly pursued the question.
I read articles on the subject that provided me with much information but
no more comfort than Sam’s question and comment and Fred’s enigmatic smile.
I pursued the question as acting dean and finally as dean.
I read articles in the Journal of Legal Education and the Toledo
I read the AALS Law Deanship Manual.
I attended seminars sponsored by the American Bar Association and the
Association of American Law Schools. I
listened to formal presentations by deans and joined in informal conversations
with deans on the art of deaning. I
soon arrived at some conclusions.
The articles and presentations were uniformly informative.
Most described a job of enormous proportions. Some
were delightful and humorous; others were intellectual.
Most, at least in part, were confessional or advisory.[i]
Some addressed the substance of legal education providing direction to the art
The articles and formal presentations tended to be more positive than the
informal conversations. The most
comforting thing about the articles, presentations
and conversations was the constant recurring theme of how to improve legal
education and individual schools. I
was impressed by the commitment of my fellow deans and pleased to be among their
Deans tend to reflect their background and current environment.[iii]
They come from varied backgrounds. Some
deans come from the academy and others from the practice.
Some come from public universities and others from private universities.
A few come from independent law schools.
All come from law schools that are unique but share similar
characteristics with other schools. Common
threads recur in the writing, speeches and conversations of
law school deans. The most
common thread is the need to balance the often competing and conflicting
interests of the various agencies, constituents and individuals that affect the
law school. Compromise becomes a way
of life. Or to put it another way,
harmonizing (if possible) competing and conflicting interests of various
constituents and individuals is a major part of the dean’s function.
Among the agencies and constituents that assert competing or conflicting
interests are government and nongovernment agencies, the school’s governing
authority, the faculty, the alumni, the students, and the bar and the judiciary.
Government and nongovernment organizations provide law school deans with
a lifetime of reading material. Legislatures
pass statutes and agencies pass regulations that directly and indirectly affect
law schools. Accrediting agencies
pass standards that affect law schools. Commissions
and agencies make decisions applying those statutes, regulations and standards
to a vast range of fact situations. Law
school deans must at least be conversant with those statutes, regulations,
standards and decisions in order to manage the day-to-day operations of the
school and plan ahead. Depending on
the particular law school, the dean gets varying support on these matters from
central administrators or private counsel. Even
a correct decision by a dean may be financially and politically costly.
An incorrect decision may create havoc.
Rather than correct or incorrect, most decisions may be characterized as
the best choice among those available.
Congress and most state legislatures have passed various civil rights
statutes. These statutes were passed
understandably to correct persistent and pernicious practices.
However, even a well-meaning dean may be caught in statutory conflict
among competing constituents. The
by-laws of the Association of American Law Schools clearly encourage affirmative
action programs that for years seemed a favored approach to correcting the
wrongs of racial segregation. After
costly and protracted litigation in various courts, affirmative action programs
of sorts have mixed blessings from the United States Supreme Court.
However, actions by the Office of Civil Rights and private individuals
make these programs a controversial if not a risky venture.
The choice to pursue what seems a morally correct decision may embroil
the law school in a financial and political wrangle that is at least distracting
if not debilitating. Resources and
energy defending the morally correct decision that may be at odds with the
language of the statute may well be better spent on other programs.
However, the decision whether to divert the resources and energy from an
affirmative action program engenders ill will no matter which way it goes.
Nevertheless the dean must balance the competing and conflicting
interests and make the decision.
In addition to the civil rights statutes a plethora of other statutes and
regulations exist. These statutes
and regulations require recording and reporting facts and figures.
At times various agencies visit the law school to review in detail the
recording and reporting to be sure the school complies with the required
procedures. Warnings requiring
further reporting and sanctions may result from infractions.
Most law schools are dependent on student
loans for tuition.
The regulations regarding student loans are comprehensive and at times
somewhat ambiguous. However, law
schools must comply to the satisfaction of the government in processing the
loans. Failure to satisfy the
government may result in financial assessments being made or sanctions imposed
on the school. One of the sanctions
is loss of loans to the students at the school, for most deans a nightmarish
thought. In large part most trustees
and faculty are unaware of these statutes and regulations and their implications
to the school. They often believe
that the dean’s strong reaction to some policy or practice proposed or even
implemented that violates a regulation that jeopardizes student loans is
unwarranted and the result of a timorous nature.
Regardless of what others may think, the dean must balance the competing
and conflicting interests and make the decision.
The nongovernmental agencies that most directly affect law schools are
those that accredit the schools. The
ABA Section on Legal Education and Admissions to the Bar most directly affects
law schools. Regional accrediting
associations such as the North Central Association that accredit universities
and colleges affect law schools through the university or college accreditation
The accreditation of a law school is important for many reasons.
Without accreditation, law schools are at a disadvantage in
accreditation of a school makes the school’s graduates eligible for admission
to practice law in all 50 states. Without
proper accreditation, students at a law school are not eligible for federal
student loans. Obviously lack of
accreditation deters students from applying to a school.
The accrediting associations must adopt standards to measure the quality
of the education offered at educational institutions.
The agencies constantly seek to improve the quality of education.
The standards themselves measure the quality of education in different
ways. The theoretical underpinning
of accrediting standards has shifted over the years from objectively measuring
quantity to subjectively measuring quality to output assessment.
In a legitimate effort to improve education the agencies may adopt
standards that make that very quality education unobtainable to deserving
students. They may exercise an
understandable caution in venturing into new fields.
The caution may inhibit innovative or imaginative programs.
The areas of legal writing, advocacy and clinical education at one time
were barely if at all recognized in legal education.
Today the standards of accreditation require all to some degree.
The change in legal education because of the adoption of legal writing,
advocacy and clinics is dramatic. Graduates
are much better prepared to practice law. However,
the cost of legal education has increased substantially in part because of these
changes. For some deans, decisions
balancing the highest possible quality of legal education with access to a legal
education for all segments of society are difficult ones.
A dean must be conversant with the accrediting standards.
The day-to-day operation of the school must satisfy the standards that at
times may be, or appear to be, at odds with the goals of or programs at the
school. Reporting compliance with
the standards for accreditation purposes requires knowing the standards,
understanding how to collect the relevant data and applying the standards to the
data. Even more, planning programs
and establishing budgets requires that anticipation of changes in the
theoretical underpinning of accrediting standards and the standards themselves
Somehow the dean must harmonize the goals and programs at the school that
are established by trustees, central administration or faculty with the current
and anticipated standards.
The governing authority of a law school that the dean must report to
varies from school to school.
At a university affiliated law school most deans report to the provost,
chancellor or president. At an
independent law school the dean deals directly with the president or chairman of
the corporation. The dean at an
independent school is de jure or de facto the chief executive
officer with all the responsibilities and power that go with that position.
Based on personalities and institutional organization, the uniqueness of
a law school is most likely manifested in the relation of the dean to the
governing authority. The dean based
on political or social skill or institutional organization may
have broad discretion. Broad
discretion allows the dean latitude in making decisions.
It allows the dean to make major decisions and exercise creativity.
However, it makes the dean directly responsible for the
decision—whether that decision is correct, incorrect, or the best choice among
those available. Decisions at law
schools are seldom secret, and if secret, not for long.
Thus incidental to the decision itself is the question of to what extent
a dean seeks permission, advice or consent before making it.
Some decisions involve embarrassing personnel matters or competitive
issues. Decisions of substantial
financial or political import must be shared with or reported to the governing
authority or at least some part of the authority.
However, needless involvement in the operation of the school by the
governing authority invites micromanagement.
It also may lead the governing authority to lose confidence in the dean
as a decision-maker by asking for an excess of input by the authority.
When the governing authority that the dean reports to is a board or
committee a risk arises that the individual members of the board or committee
may disagree about any decision. When
the authority is split between the constituents such as the trustees and the
faculty, the constituents may disagree about the decision or the process used to
arrive at it. The decision to create
an academic program and to finance it may require the agreement of the faculty
and the trustees. The faculty and
trustees may have conflicting or competing interests in the program that the
dean when such a situation occurs must harmonize.
Faculties are, and should be, an integral part of law school governance.
However, the power of governance presupposes that the power will be
exercised wisely. Like trustees,
faculties should not try to micromanage the school.
The principal function of a faculty is to teach, publish and engage in
public service. Their governance
function in current legal education includes appointment and hiring of persons
to academic positions, promotion of academic colleagues, and establishment of
the curriculum. Each of these areas
of governance, shared with the dean, creates a plethora of views reflecting the
various interests of individual faculty members.
To engage in the academic and the governance functions is a
time-consuming task. Too often the
faculty exercises the governance function without fully exploring the facts and
consequences of a decision. Sadly at
times the governance function reflects the self interest of an individual
faculty member in which colleagues acquiesce.
At times the motive is to get some benefit at the expense of the school
or to interfere with the work of a colleague.[vi]
The result of an incorrect decision, or even a hotly contested correct decision
is that the process by which the decision was reached, and the decision itself
is revisited all too soon.[vii]
The revisiting of decisions is time-consuming and at times divisive.
A dean must somehow harmonize the competing and conflicting interests
among the faculty and between the faculty and other constituencies.
The dean must persuade the faculty to be academically productive and
exercise the governance function wisely. The
dean must protect decanal functions such as making course assignments and
awarding salaries from incursion by individual faculty members or faculty
committees. To balance the
conflicting and competing interests of the faculty and its members is one of the
major tasks of the dean. It is
indeed a task that “in too many cases [makes the dean] little more than an
embattled, dispirited juggler.”[viii]
An active alumni association is a great value to a dean.
It can contribute to fund raising, recruiting students, hiring graduates
and generally assist in
the school. These are areas
essential for the wellbeing of the school and the dean.
A moribund alumni is of little value to the school or the dean.
The best that can be said of a moribund alumni association is a dean does
not have to balance competing or conflicting interests within the association
and between it and other constituents.
An active alumni association obviously is one that will have varied
interests among its members and collective interests that sometimes conflict.
It will need support services to operate as a part of the school.
It will need to be consulted as to the overall goals of the school and
the goals of the association. Its
need for services to fulfill its goals, may create tension.
Individual members of the association may compete for the available
services to operate the association and may not entirely agree on association
Even if members agree on association goals, those goals may be at odds
with the goals of the other constituents. Once
again, the dean must harmonize the various interests.
Failure to strike a harmonious balance may result in the loss of an
active alumni association and its attendant benefits.
The student bodies of law schools vary substantially from school to
school. Each school sets its own
criteria for admission of students. The
criteria involve consideration of the students’ academic background and
diversity in the broadest sense. The
student body based on its background and attitude of students takes on a
personality that the dean must be aware of in order to effectively deal with
students. Some schools have an
active student bar association and active student organizations.
The student body as a whole and the student leaders at these schools
expect some input into the dean’s decision-making process.
As in the case of the alumni, an active student body can be an asset to a
dean. However, if not properly
attended to it may become a detriment to the school.
An active student bar association can assist the dean in effectively
communicating with the rest of the students.
It can often be an ally in calming student unrest.
It can warn the dean of broad-based complaints and activities that may be
embarrassing to the school. It can
often assist the dean in working with the alumni or the governing body.
At times it can provide sound advice about scheduling and course
offerings. It may provide helpful
insights into classroom problems that might otherwise go unnoticed and
unattended until the problem is a major one.
Thus students may help the dean to make the best decision of those
available. Clearly students
appreciate being included in the dean’s decision-making process.
In most cases they will do it in a civil, helpful way and become a good
partners in operating the school. However,
just as everyone else has interests, students too have interests (at times
strongly held interests) that somehow must be harmonized with those of other
Like an active alumni, the bar and judiciary may be a great asset to a
dean. The bar may contribute to fund
raising. The bar and judiciary may
assist in recruiting students, hiring graduates and generally
the school. They also may provide
excellent adjunct faculty and conference speakers.
However, if not cultivated, they may be a negative influence.
At times the organized bar may believe the schools are graduating too may
students. Some may complain of
admission standards that are too high so as to exclude applicants they believe
as a class or as individuals should be admitted.
Others may complain that the applicants who are accepted are unqualified
to ultimately become lawyers. Parts
of the bar and judiciary at times complain that the curriculum is not
sufficiently traditional while other parts argue it is not sufficiently attuned
to the current or future practice of law.
Faculty and practitioners often seem at odds with each other.
The disagreement between or disdain for each other is hard to fathom.
Actual conflicting or competing interests are few and narrow.
Broad areas of common interest exist.
Nevertheless, the areas of disagreement are firmly and deeply held.
The dean is often in the position of ameliorating the disagreements in
order to get interviews and jobs for the students.
“What is a dean for?” I
still am not sure. A dean must be
conversant with numerous statutes, regulations, standards and governmental and
nongovernmental agencies’ decisions in order to operate a law school on a
day-to-day basis and to plan for the future.
To be conversant with this voluminous material is extremely time
consuming and tedious work. I know a
dean must often, as Tom Read says, “accommodate increasingly fractious
Although these accommodations must
comply with statutes, regulations, standards and agencies’ decisions; balance
the competing and conflicting interests of the constituencies and their members;
and may be the best decision that can be made under the circumstances; the
accommodation may not be the best decision that could have been made for the
school or legal education. This
knowledge may leave a vaguely (or even not so vaguely) uncomfortable feeling
that the “right thing” was not done. I
surmise that the most immediate function of the dean is to try to keep the
school and legal education from self-destructing from spiraling costs and
misguided self-interest. However,
this is not a very inspiring role.
Often obscured by the misguided self-interest of the constituencies and
their members are wonderful dreams of students, faculty and alumni.
Despite predictions that some students and graduates won’t become
outstanding lawyers committed to the public good, some of those students dream
they will and do so. Despite
obstacles hindering some faculty colleagues from becoming outstanding classroom
teachers or scholars, some dream they will overcome those obstacles and do
succeed. To assist students and
faculty colleagues in the achievement of these dreams is, I believe, what a dean
is for. This is inspiring work.
It is those successful dreamers that I hope will allow future deans to
make inspired decisions for the school and legal education, given the competing
Professor, The John Marshall Law School; Dean (1995-2003), The John Marshall
See Nancy B.
Rappaport, Going From “Us” To “Them” in Sixty Seconds, 31 U.
Rev. 703 (2000) and Of Cat-Herders, Conductors, Tour Guides, and Fearless Leaders, 33 U.
Rev. 161 (2001), both
delightful blends of confessional and advisory.
See Frank T.
Read, The Unique Role of the American Law School Dean: Academic Leader or
Embattled Juggler?, 31 U. Toledo
See Harry Haynsworth, The
Similarities and Differences Between Independent and University Affiliated
Law Schools, 34 U. Toledo L.
Rev. 87 (2002).
At the last count I made, only
Vermont Law School and The John Marshall Law School of the independent law
schools were accredited by both a regional accrediting association and the
American Bar Association.
See Steven R.
Smith, The Dean and the Budget: Not “Just a Bunch of Damn Numbers,” 33
U. Toledo L.
Rev. 203 (2001).
See Richard A.
Matasar, The Ten Commandments of Faculty Development, 31 U.
Toledo L. Rev.
665, 671 (2000) in which the author points out “We have too much to
do to justify interfering with work produced by our colleagues.
We have too much to do to try to control every aspect of the law
See Richard A.
Matasar, supra note 6, at
672, in which the author points out, “A necessary consequence of living
and letting live is to give up on past battles.
No battle is worth relitigating every year.”
See Frank T.
Read, supra note 2, at 716.
For some alumni any changes in the school from the school they “knew” is
an inappropriate change.
Frank T. Read, supra
note 2, at 716.