By AALS President Darby Dickerson, Dean, UIC John Marshall Law School
The theme for my presidential year is “The Power of Words.” During my January 2020 presidential address,i I emphasized three words—“caste,” “candor,” and “change”—and for each word, I posed a challenge to the legal academy. This final column addresses “caste” and calls on the academy to abolish the caste system present in most law schools.
In 2002, then-Dean Kent Syverud published “The Caste System and Best Practices in Legal Education.”ii Syverud explained that most American law schools include seven castes, listed from highest to lowest:
Syverud also identified ten best practices for legal education, including the three below:
Best practices encourage student-faculty contact, inside and outside class, to facilitate feedback, encouragement, and inculcation of skills and values.
Best practices encourage active learning. Students must talk about what they are learning, write about it, and apply it to their own lives and work.
Best practices give prompt and frequent feedback.iii
He observed that because some of the best practices were identified with some of the lower castes, those in higher castes were reluctant to adopt them.iv He also observed that those in the lower castes often suffer from lower salaries, lack of security of position, and lack of respect.v
Any caste system is insidious. But most, if not all, law schools have them. In many schools, the caste system means that many individuals are not recognized appropriately or compensated fairly for their contributions. At some schools, non-tenure-track (NTT) faculty carry a disproportionate share of the teaching and service loads so that others can focus on research.
This division of labor may mean that, due to service and teaching loads—and their demographics—the NTT faculty develop the strongest relationships with students. They often meet with students more regularly, counsel them on a wide range of matters, and develop the relationships that keep students motivated and enrolled. The division of labor may mean that NTT faculty are running the programs for which a school receives high rankings and accolades, thus bringing in prospective students and donors. It may mean that NTT faculty are primarily women and individuals of color or hold degrees from law schools below the T-14, despite often having graduated at the tops of their classes, held journal editorships, clerked for federal judges, and worked for national law firms. And it may mean that the NTT teachers are not considered faculty, have no voice or vote in the programs they teach or direct, have segregated offices far from the faculty hallways, and are not afforded opportunities for professional development or summer support, even if they are publishing regularly. And this list could go on.
But the division of labor is not the true problem. Many individuals in NTT roles are passionate about teaching and serving, even if they also produce or desire to produce scholarship. And in any workplace, people in different positions perform different tasks, even if the tasks are equally important. Instead, the real problems are the inequities in pay, security, and respect—and the harm the caste system inflicts on our academic programs.
At some schools, the pay for full-time NTT teachers is one-half or even one-quarter of the average paid to tenure-line faculty members, even though the number of hours worked and student contact hours are often the same, if not greater. While most schools have recognized the folly of caps, some still employ non-tenure-track faculty on short-term contracts, even when those individuals have proven records of success over long periods of time. Although we’ve seen some improvements in pay and status over the years thanks to the hard work of brave individuals and organizations such as the Clinical Legal Education Association (CLEA), the Association of Legal Writing Directors (ALWD), and the Legal Writing Institute (LWI),vi pay equity and security of position are still serious issues at many schools—and some schools have regressed, especially during the decade following the 2008 recession. As just one example, the 2019–20 CSALE survey reports that only “65% of those teaching in a clinic or field placement course are employed full-time by the school,” which represents a decline from 78% in 2013–14 and 82% in 2010–11.vii Unfortunately, the current pandemic may cause further erosion in terms of job security and pay.
In terms of respect—or disrespect—NTT faculty suffer a wide range of affronts. A sampling of these slights includes having faculty assemblies dictate or attempt to dictate which course materials they use; having faculty assemblies change or attempt to change program design (e.g., number of credits, grading scales, etc.) without consultation and sometimes over their expert objections; failing to acknowledge NTT faculty members’ expertise and accomplishments; relegating NTT faculty to the least desirable offices and spaces on campus; and referring to them by first name only, instead of by position and title, in front of students. Again, the list could go on.
When we dig into who holds these “lower-caste” positions, we see that legal writing and clinics are Pink Ghettos. The 2019–20 CSALE survey reports that clinical faculty is 67% female (with fewer than 1% genderqueer/non-binary).viii The 2014 ALWD/LWI survey reported that 72% of all full-time legal-writing faculty were female.ix Law libraries are also Pink Ghettos,x and my educated guess is that academic support is similar. In many schools, the heavily female NTT faculty are performing more traditional female roles of service and teaching. Although teaching and service are critical to student success (and law school success), those roles are undervalued in the academy, which often promotes scholarship as the coin of the realm. The gender differential vis-à-vis the tenure-line faculty contributes to gender-based devaluation NTT faculty work, thus exacerbating the respect issue.
Consider what your law school would look like without your NTT teachers. Would your program of education be as strong and robust? Would class sizes be larger? Would overall scholarly production decline? Would you be able to field advocacy teams? Would your students succeed on the bar at the same rate? Would employers be as pleased with your graduates’ skill level? At many schools, I bet the answer to each question is “no.” Our NTT colleagues perform valuable work, and they should be acknowledged for that work and their contributions to our law schools’ and students’ successes.
Another caste-related issue that harms our schools and students is the fact that ideas and practices from the “lower castes” are disregarded or marginalized until someone from a higher caste or an accrediting body embraces it. Examples include experiential education and formative assessments, which were used widely by clinicians and legal-writing professors long before the accreditation standards required or encouraged them. By ignoring best practices based on their origin, are students are harmed, as are our programs of legal education. Why should the status of an individual with a great idea matter? Our NTT colleagues are smart and talented; otherwise, we would not have hired them. Just because their job title and description differ somewhat from tenure-line faculty doesn’t mean that we should ignore or shun their ideas and contributions.
Over the past 18 years, the legal academy has made progress. We now have a few deans—and dozens of associate deans—from the legal writing, clinical, and academic support fields. Schools have converted some NTT positions to tenure-line positions or enhanced the security and pay of NTT faculty. Some non-director law librarians have gained improved status and security. More faculty in podium courses are incorporating more formative assessments into their courses and embracing experiential learning.
But more work needs to be done. We need to eliminate the caste system—a system meant to divide—from legal education. We need to recognize the similarities in and value of the work we all perform and appreciate, not denigrate, the differences. Raising some up does not diminish the work of others. Instead, it improves the whole of legal education. Because I’ve worked at three schools that have made significant progress in improving status for legal writing professionals, clinicians, academic support specialists, librarians, and staff, I know that abolishing the caste system is both a realistic call for action and one that will benefit our students and the legal profession.
Below are three concrete ideas for law schools and two pieces of advice for those in NTT positions about how we might take steps to abolish the caste system.
First, although I wish that all NTT faculty positions could be converted to tenure-line positions, I know that it not realistic at most law schools. I also understand that not all NTT faculty wish to convert to tenure-line status. Where wholesale conversion is not possible or desired, I encourage law school to develop standards and processes that would allow individual NTT faculty to seek conversion to tenure-line status. If they are doing all aspects of a tenure-line position, why not reward them with a tenure-line position? Will this process be easy and problem-free? No. But is a conversion process worth the trouble to reward individuals for their hard work, keep talented faculty at our schools, and advance our programs of legal education? Yes.
Second, I encourage deans to develop plans to equalize the pay of NTT faculty. As a sitting dean in the midst of a pandemic, I understand that resources are stretched thin. But we must invest in our human resources, even in difficult times. NTT faculty understand that pay equity will take time, but nothing will happen if the issue is not added to the school’s priority list.
Third, treat NTT faculty with respect and dignity. Take a hard look at your culture and examine how you treat NTT faculty. Change the culture to emphasize community over caste. What are the NTT titles? Are NTT faculty invited to faculty meetings, and can they vote? Do they serve on committees, and can they vote? Where are their offices? Are they listed on the faculty webpage, and if so, are they segregated? Do they march with the faculty at commencement? Are NTT faculty listed in the graduation program, and if so, how are they designated? Do they have meaningful opportunities for professional development? Do they have opportunities for summer support? When is the last time the law school featured their work, or thanked them? For schools that cannot afford pay equity for NTT faculty, many of these status and respect issues can be extended for free—but will mean a great deal to NTT faculty. That being said: don’t forget to equalize pay.
For the NTT faculty: lean in and amplify. Understand your true worth to your law school. Without you, the school could not offer the programs and services it does. The student experience, and likely student performance, would diminish. Don’t stay in your cubbyhole. Instead, build alliances inside and outside of your law school. When you help someone, ask them to write your dean. Ask for equitable pay and other indicia of respect commensurate with your duties and abilities. Change can be slow, can sometimes move in the wrong direction, and is often incremental. But consistent small steps can lead to big changes over time. Make sure to start your journey.
In addition, support each other and amplify the voices of your fellow NTT faculty. Make sure you are heard, and don’t let others take credit for your ideas. Don’t hide your efforts. Promote the work of other NTT faculty, whether through a blog, invitation to speak at a conference, thank-you letter, or conversation with tenure-line faculty. When tenure-line faculty recognize the scope and impact of your work, they often will support efforts for improved status and pay.
As I close, let me acknowledge at least one significant shortcoming of this column, which is not to address fully other castes and caste systems. The COVID-19 pandemic has spotlighted the critical role that staff play in our educational programs. At my school, we opened study spaces and offer limited in-person classes only because our dedicated facilities and security team members work hard every day to ensure that the campus is clean and safe. One day, when transportation was disrupted in Chicago, two facilities staff members traveling on the Orange Line couldn’t make it to school. Instead of giving up and calling off for the day, they traveled back home, grabbed bikes, and pedaled many miles back to school. Our staff members’ amazing dedication, day in and day out, enhances our students’ learning experiences. Like the faculty, they, too, are educators.
In most law schools, adjuncts work for a pittance or for free while teaching our students important knowledge, skills, and values. With the rise of the gig economy across the U.S., we can anticipate that, in the future, fewer adjuncts will have full-time jobs with benefits that allow them the flexibility to teach for little or nothing.
In addition, law schools themselves are often viewed in terms of castes, as reflected in the U.S. News tiers. As with NTT faculty, programs initiated at lower-ranked schools are often ignored until a higher-ranked school develops a similar program.
And importantly, the U.S. legal academy—including NTT ranks—remains primarily white. As I emphasized in my last column, we must work to transform our schools into antiracist organizations, xi which means recruiting, hiring, supporting, and retaining more faculty, staff, and students of color.
To end, let me acknowledge that, even as someone attuned to the caste issue in legal academia, I can and will do better to dismantle the caste systems in legal academia. I hope many of you will join me in this quest.
i Darby Dickerson, The Power of Words, AALS Newsltr. 1 (Winter 2020).
ii Kent D. Syverud, The Caste System and Best Practices in Legal Education, 1 J. ALWD 12 (2002).
iii Id. at 17 (emphasis in original).
iv See id. at 18–19.
v Id. at 19.
vi For more than 20 years, ALWD and LWI have jointly conducted an annual survey to gather information about legal-writing programs and faculty. A review of survey responses over that period shows improvements, as a field, in status and pay. ALWD, Survey, https://www.alwd.org/resources/survey (last visited Oct. 19, 2020) (compare the 2017–18 survey results for status and pay to the 1999 results).
vii Robert R. Kuehn et al., Center for the Study of Applied Legal Education (CSALE), 2019–20 Survey of Applied Legal Education 17–18, https://uploads-ssl.webflow.com/5d8cde48c96867b8ea8c6720/5f5bcf9641910f246b95ead9_Report%20on%202019-20%20CSALE%20Survey.pdf (2020) [hereinafter CSALE].
viii Id. at 52.
ix ALWD, Survey, 2014, at 68, https://www.alwd.org/images/resources/2014%20Survey%20Report%20(AY%202013-2014).pdf.
x Alyssa Thurston, Addressing the “Emerging Majority”: Racial and Ethnic Diversity in Law Librarianship in the Twenty-First Century, 104 L. Libr. J. 359, 372 (2012).
xi Darby Dickerson, President’s Message: Change, AALS Newsltr. 1 (Summer 2020).