Is Tenure Fair at Law Schools?

A solid majority of tenured law school professors believe that the tenure process is fair, a new national survey has found, but women and minority scholars are far more likely than their counterparts to doubt that that is the case. The survey also found that while a majority of white men found the tenure process to be easy, that perception is not shared by majorities of minority men or women of any race or ethnicity. And the survey found that if there is one thing law faculty members agree on across demographic lines, it is that the tenure process is not rewarding.

The study, released Friday by the Social Science Research Network, notes that experts who have pushed for more diversification of law faculties have focused on the trend that minority or female scholars are more likely than others to leave positions early in their careers -- making the differential views of the tenure process an important topic to examine. And while the authors note that law schools can take pride in the view of most faculty members that tenure is awarded in a fair way, the "pockets of bleakness" should be of concern.

A national survey of tenured law faculty members and interviews with a smaller group of them formed the basis of the paper, by two legal scholars, Katherine Barnes of the University of Arizona and Elizabeth Mertz of the University of Wisconsin at Madison. They note that tenure is viewed as crucial by most law faculty members, but for widely varying reasons.

To some, it is "the guardian of quality and high standards in legal education and in legal scholarship, standards that some have felt might be diluted were issues of gender or race to be raised in law school hiring and promotion." To others, "tenure was frequently described as the crucial institutional process through which the legal academy could block or open the doors to gender and racial integration."

The disputes over tenure extend beyond issues of race and gender. "Tenure has also been the focus of disputes over the relative weight of different kinds of law teaching: tenured status is not generally granted to professors whose focus is on clinical training or legal writing," Barnes and Mertz write. "Thus the tenure process in law schools has come under a great deal of scrutiny both from within and outside of the legal academy, because of its role at the center of struggles over the definition of law school education itself."

Asked whether they thought the tenure process was fair, 38 percent of white men strongly agreed -- compared to 8 percent of minority women. And while only 5 percent of white men strongly disagreed, 13 percent of minority women did.

Views of Law Faculty on Statement that the Tenure Process Is Fair

Splits were also evident on the relative ease of the tenure process, with 56 percent of white men either agreeing or strongly agreeing that the process was easy, while 61 percent of minority women either disagreed or strongly disagreed.

Views of Law Faculty on Statement that the Tenure Process Is Easy

While only those who achieved tenure were surveyed, and they obviously got something significant in job security and status, most did not see the process itself as rewarding. Among minority men, 32 percent agreed or strongly agreed that the process was rewarding, and the numbers were smaller for all other groups.

The interviews with the professors revealed different ways of considering the gaps in law professors' analysis on questions of the fairness and ease of the tenure process.

Many of the minority and female scholars interviewed described feeling that they had to do more than their white male counterparts to be assured of success. "I've had to work harder. There's no question about that," said one minority woman interviewed, in a typical quote.

Many white male professors, however, suggested that law schools had already done all that was necessary to support people who are not white men coming into the academy.

Said one white male: "I think law schools, all of the ones I’ve been at, bend over backwards to minimize the impact of all those kinds of things. We give people extra time off, we stop tenure clocks, you know, especially around issues of kid, child-rearing, you know. And so, you know … the way I view it is, what I see at all the schools I’ve been at is: so first, most of those issues are mainly relevant in the run-up to tenure. And in the run-up to tenure, all schools that I’ve been at, and all the ones I’ve heard of -- with the possible exception, I guess, of Harvard -- and even they may be changing now -- basically view it as a failure of the school if somebody doesn’t get tenure, and so work really hard to make sure that, that, you know, their people will succeed."

Other factors in the interviews suggest that reasons aside from race and gender may be at play in differing perceptions of the ease of the tenure process. For instance, the paper notes that faculty of all ages noted a sense that the standards for tenure are getting tougher, with more of an emphasis on publication than was the case in the past.

So the era when good teaching alone might win many law faculty tenure may have ended just as more faculty other than white men were being hired at law schools -- and those new hires may have had lots of reasons to perceive the tenure process as more difficult than did their predecessors.