By Michael A. Olivas

My wife and I recently changed our life together radically, by moving from our suburban Houston four bedroom home to a two bedroom loft apartment near the UH Law Center. Earlier this week, I set a new land-speed, non-Olympic-Year record of 3 minutes and 20 seconds, walking from the 8th floor of the Calhoun Lofts to my UHLC office. Whereas we had defined our neighborly life by how we kept the lawn, whether we were in compliance with the neighborhood association requirements for house maintenance, and how we watched each other’s property when on vacation or away—today our neighborly concern is how to maintain a secure facility in an urban area, watching who comes and goes in the locked building, and keeping the music down with shared walls. This move from the more independent single home dwelling norm to the shared collective norm is one I first encountered when I moved in the 1960’s to my first dormitory, as a high school seminarian in Santa Fe, New Mexico. In a sense, as the oldest of ten children, my family life has always been a collective enterprise, as was that of my wife, who is the oldest daughter of ten children as well.
Being a good neighbor is highly contextual and individualistic, and many of us struggle with this Robert Frost-paradox of fences and walls making us good neighbors, not denizens of gated communities. I know that when I size up potential colleagues in hiring meetings, I assume the basic merit badges of academic and professional accomplishments, but I also place weight upon citizenship, whether a person will likely be a good colleague and contributor to the overall enterprise.

By this, I do not mean the “collegiality” criterion that has been used to punish faculty for their views, as has happened, where courts assessed the extent to which the use of such a metric is discriminatory and unfair.1 The AAUP, for example, discourages the use of collegiality as a separate and independent measure:
“Relatively little is to be gained by establishing collegiality as a separate criterion of assessment. A fundamental absence of collegiality will no doubt manifest itself in the dimensions of teaching, scholarship, or, most probably, service, though here we would add that we all know colleagues whose distinctive contribution to their institution or their profession may not lie so much in service as in teaching and research. Professional misconduct or malfeasance should constitute an independently relevant matter for faculty evaluation. So, too, should efforts to obstruct the ability of colleagues to carry out their normal functions, to engage in personal attacks, or to violate ethical standards. The elevation of collegiality into a separate and discrete standard is not only inconsistent with the long-term vigor and health of academic institutions and dangerous to academic freedom, it is also unnecessary.2 “

And I acknowledge that the line between being a law professor who is a good colleague and one who is a schnook is often blurred and very personal. The AAUP notes this as well: “Criticism and opposition do not necessarily conflict with collegiality. Gadflies, critics of institutional practices or collegial norms, even the occasional malcontent, have all been known to play an invaluable and constructive role in the life of academic departments and institutions. They have sometimes proved collegial in the deepest and truest sense.”3 I cringe when I recall some of the fights I have picked over my 30 years at UHLC, but I would probably run after and chase some of the same fire trucks again. I have caught my fair share of these trucks over the years. Rather, I want to hire people who will contribute to the overall health of the enterprise, and who will leave the trail cleaner than they found it. If they have some evidence of volunteer activities, professional contributions, or personal participation in an organization, they are more likely to become a good colleague, with all the other traits one wants in a fellow worker.

The issue I write about in this, my final column, is being a good neighbor in our overall service and professional obligations. Our Association has a very large number of volunteers, most of whom give selflessly and freely to improve the overall work of our enterprise. This year, I appointed almost a hundred such persons to committees, task forces, planning groups, and the many other bodies that carry out the daily work of the AALS. Only a handful of persons I called to service turned me down, and it was, in virtually all instances, with their regret that a personal circumstance or other professional obligation precluded them from accepting my invitation. Some of these appointments were to quite time-consuming tasks, especially the colleagues who accepted a position on the Membership Review Committee. MRC is the James Brown of legal education, attracting the hardest-working persons in a service capacity. But all of these responsibilities—advising the AALS Executive Committee on government relations, library issues, and international programs, or putting on a workshop in intellectual property and other important topics—all have their place in our system, and we could not function without this group of workhorses who shoulder the load of planning our activities and advising our members. I believe this to be a covenant with our collective selves, as part of good governance.

Ironically, the nature of becoming a successful law professor is one that combines talent, hard work, good fortune, and self-motivation, and there are many whose fame or reputation has been hard won through sheer individual achievement. These colleagues have divined that the path forward or upward is through being a successful and efficacious independent contractor, and so their career trajectories have been carved out by individual and personal accomplishment. Others, having earned tenure and security of position, seek a more balanced career by undertaking the many forms of service that are available to legal educators and lawyers: in the various general and specialized bar groups, in public office or appointments, in the professional associations and learned societies that allow tribal interests to flourish, and in the many “pipeline” programs that present themselves and allow us to replenish our ranks.

In his January, 1997 AALS Presidential Lecture, my predecessor and friend John Sexton (NYU), wrote in “The Academic Calling: From Independent Contractor to Common Enterprise”:

“There is, I submit, an interesting analogy between the way most legal academics view themselves and the way most law schools view themselves. Specifically, I believe that the dominant model that we employ to define the relationship of the 180 or so member schools in this Association is that each school is an independent contractor. Rarely do we view our member schools as participants in a common enterprise.”
What does that mean for us as an Association? We know that the Association is legal education’s learned society. The word ‘learned’ describes our core function: education and research. The word ‘society’ masks a lot. In other disciplines, the learned societies are collections of individual professors—to wit, they are aggregations of independent contractors. We are not only a society of professors but also a society of schools. This means that we can choose an identity for ourselves across a spectrum of possible identities.4
I write to affirm these remarks, and to issue a challenge to all our members to become part of the solution and undertake service that does not merely advance the specialized interest of our own research and scholarship, but that advances the interests of others, and particularly those not as fortunate as we have been. Some faculty teach prelaw programs, conduct street law classes, raise scholarship funds, lobby legislators, perform pro bono work, draft legislation, testify before various legislative and administrative bodies, and write op-eds to influence important public policy decisions. I am not speaking here of taking on paid clients as their counsel or consultant, which is a perfectly appropriate activity, within bounds and institutional obligations, but I consider these part of the independent contractor side of law professor lives.

I have done these, and find that they enrich my teaching and scholarship. But no one will pay me for sitting with 17 prelaw sophomores last Saturday morning, rehearsing them for taking the LSAT and advising them about how to write admissions essays and apply to law schools. These activities enrich me beyond measure, even if they have no specific resume value. Not one of us arrived on our own merits, but all have relied upon the kindness and achievements of others who encouraged us, mentored us, and shaped us. It is our reciprocal obligation to do unto others. I invite colleagues to attend the Presidential Session on public service activities on the Friday afternoon after the Annual Meeting lunch, which will include Harold Koh (Yale), Nancy Rogers (Ohio State), and Linda S. Greene (Wisconsin)—all colleagues who have undertaken significant public service.

I end my term by asking all of us to give ourselves away, to at least one unpaid pro bono, non-legal education activity each semester. This is a modest and completely voluntary task, but many of us teach in schools where our students are required to undertake such work in much larger amounts (and to pay for the privilege by virtue of tuition). Every legal educator (and there are over 6,000 of us) should commit to involve himself or herself in one scholarship fund, one event to speak to schoolchildren, or one similar obligation each semester. Much has been given to each of us, and I believe that we all should give back, and give freely. Doing so is the proverbial bread cast upon the waters.

The second Mexican American lawyer ever to practice in Texas, Alonso S. Perales, wrote Are We Good Neighbors?,5 a 1948 book in which he outlined the many depredations practiced in Jim Crow and Jaime Crow Texas, post-WWII, where many Mexican American and African Americans served in the military and died for their country, or survived and returned to a United States that did not accord them the basic civil rights and dignity accorded white citizens. In Good Neighbors, through a careful series of testimonios and affidavits describing many humiliating incidents of exclusion from restaurants, bars, barber shops, and theaters and other private accommodations, and of refusals to sell property because of racial restrictive covenants, Perales not only challenged elected and appointed officials to accord civil rights to these populations of color, but he also challenged Mexican Americans to stand up for their rights, to press legislators and hold them accountable, and to behave as good neighbors to the larger community. That same challenge is still appropriate today, when legal education is being criticized for a variety of good and not-so-good reasons: Are we being good neighbors?

 

Endnotes

  1. There is a remarkable number of cases in this area, suggesting that tenure reviews do indeed take into account collegiality. See, e.g., Mayberry v. Dees, 663 F.2d 502, 517, 518-519 (4th Cir. 1981) (a “candidate’s relationship to other professors in the department’’ appropriate in tenure review, including judgment whether faculty is “the kind of person with the requisite degree of collegiality’’); Staheli v. University of Mississippi, 854 F.2d 121 (5th Cir. 1988) (denial of tenure may consider whether actions constituted “divisive influence on the faculty’’); McGill v. Regents of University of California, 52 Cal. Rptr. 2d 466, 472 (Cal. Ct. App. 1996) (colleges may consider “person’s ability and willingness to work effectively with his or her colleagues’’ in personnel reviews). It should come as no surprise that there is a substantial legal literature on this phenomenon as well: Michael L. Seigel, On Collegiality, 54 J. Legal Educ. 406 (2004); Sumi Cho, “Unwise,” “Untimely,” and “Extreme”: Redefining Collegial Culture in the Workplace and Revaluing the Role of Social Change, 39 U.C. Davis L. Rev. 805 (2006); Michael L. Seigel & Kathi Miner-Rubino, Measuring the Value of Collegiality Among Law Professors, 1 Faulkner L. Rev. 257 (2010).
  2. AAUP, On Collegiality as a Criterion for Faculty Evaluation (1999), available at: http://www.aaup.org/AAUP/pubsres/policydocs/contents/collegiality.htm
  3. Id.
  4. John Sexton, “The Academic Calling: From Independent Contractor to Common Enterprise,” (January, 1997 AALS Presidential Lecture), available at: http://www.aals.org/presidentsmessages/calling.html
  5. The book, long out of print and unavailable, is cited in Lupe S. Salinas, Gus Garcia and Thurgood Marshall: Two Legal Giants Fighting for Justice, 28 T. Marshall L Rev 145, 159-160 (2002-2003), and will be reprinted in 2012 by Arte Publico Press, following a conference on Perales. See http://www.law.uh.edu/ihelg/Perales-Conference.html. See also Michael A. Olivas, The “Trial of the Century” That Never Was: Staff Sgt. Macario Garcia, The Congressional Medal of Honor, and the Oasis Café, 83 Ind. L. J. 1391 (2008).