Caste Revisited

August 13th, 2021 / By Deborah J. Merritt

I’ve written several times about the caste system in legal education: a hierarchy that favors professors who teach torts, contracts, and other legal “doctrine” over those who teach legal writing, clinics, and other legal “skills.” This favoritism includes higher pay, more job security, and greater respect. Many schools maintain third and fourth classes that rank even lower than the second class citizens of clinics and legal writing. Academic support professors, teaching fellows, contract faculty, adjuncts, librarians, and other staff members often occupy those lowest rungs of the academic hierarchy.

California Western Steps Up

I’m returning to this topic because several related items recently hit my inbox. First, I received a press release from the California Western School of Law announcing that it had adopted a unitary tenure track that “creates opportunities for its clinical, Legal Skills, and other skills professors who were hired as full-time faculty to achieve tenure, with the same faculty governance and voting rights that come with an existing tenure-stream faculty position.” Kudos!

The press release, however, leaves several open questions. Will pay be equalized for professors on this unitary tenure track? Or will some professors still be more equal than others? How much research will be required for professors to join this unitary tenure track? Will the currently tenured professors turn their noses up at the scholarly focus of their new colleagues? And what about professors who choose not to join the unitary tenure track? Will the school recognize their ongoing contributions through higher pay and respect?

I’m not trying to rain on California Western’s parade: they have taken a hard step that many other schools are still resisting. I hope they will also find answers to these remaining questions, which schools face whether or not they embrace a unitary tenure track. What type of distinctions are appropriate among employees in a single organization? How do we value different types of contributions to the overall enterprise? Are the answers different for an academic institution and a manufacturing plant?

A Message from Darby Dickinson

Given these questions, I was pleased to read a column written by 2020’s AALS President, Darby Dickerson. The column is boldly titled “Abolish the Academic Caste System,” and it merits close reading. Drawing on Kent Syverud’s thoughtful essay, The Caste System and Best Practices in Legal Education, Dickerson both castigates the caste system and recognizes the barriers to overcoming it. She then offers three pragmatic suggestions:

• Offer nontenure-track faculty a path onto the tenure track
• Increase the pay of nontenure-track faculty. Even if equity is not immediately achievable, make pay increases a priority.
• Treat nontenure-track faculty with respect. Give them offices similar to those of tenured faculty with the same seniority. Provide resources for professional development, research, and summer support. Feature their work on school websites. Watch for (and avoid) daily microaggressions.

These are constructive suggestions, and I hope schools will follow them. I also appreciate Dean Dickerson’s closing acknowledgement that even these steps don’t address the low pay and respect often afforded the staff who do so much to keep our institutions running. [I’m a few months late in reading this column, but that’s the state of my inbox.]

Imposter Syndrome

Sara Ochs recently posted a thoughtful paper on Imposter Syndrome & the Non-Traditional Law Professor. Ochs documents the feelings of insecurity and inferiority that nontenure-track professors feel–and that are constantly reinforced by their low status within the law school hierarchy. As one legal writing teacher wrote in a survey conducted by Ochs:

I’m an excellent writer, and I teach writing well. But colleagues
look down their noses at m[e] for being nothing more than a
grammar teacher. I feel sure other faculty tell first year students not
to spend so much time on their writing class; they tell students no
decent teacher would be stuck in Legal Writing. So[,] I feel like I
am constantly trying to prove to my students, and myself, that I’m
doing worthwhile work[.]

Even highly successful professionals, who commanded significant respect in their previous careers, succumbed to these feelings of inferiority and self-doubt. Another respondent to Ochs’s survey wrote: “I used to be self-confident and had a successful career as a prosecutor before teaching. Now, the constant bombardment of unequal treatment has sunk in[,] and I question my abilities constantly.”

As Ochs explains in her article, these feelings harm the teachers, their students, and the institution. Some of the low-caste professors confessed that they had trouble pressing students for better work because they had come to doubt their own abilities. Several wrote about how they had ideas for scholarship–and wanted to produce scholarship–but felt beaten down by tenured faculty who treated them as intellectual light weights.

Ochs’s piece illuminates the trap institutions set for their second- and third-class faculty. Many tenured faculty find it difficult to teach legal writing, clinics, other skills courses, or academic support courses; they also find those courses inconsistent with the ways they approach scholarship. The tenured faculty, therefore, assume that no one can teach these courses while also producing scholarship. To provide these essential courses to students, they create positions with very heavy teaching loads and no time or support for scholarship–then justify the low pay and status given these positions because the teachers don’t produce scholarship. The feelings of inferiority, combined with the heavy teaching loads and low pay, assure that very few of these teachers do produce scholarship.

Wouldn’t it be better for law schools to assume that teachers of all subjects were interested in scholarship to complement their teaching? And to provide pay, status, time, and other support to foster that scholarship? I would also grant more status and pay to teachers who prefer to focus exclusively on teaching, and who excel at that work, but recognizing the potential for scholarship among teachers currently trapped in our “low status, low pay, and heavy workload” box could be an important step towards institutional reform.

As with so many other things in life, the institutions we create define the outcomes we reap.

Faculty, Scholarship, Teaching, Uncategorized, Academic Support, Caste System, Clinics, Legal Writing, Scholarship