Interim Deans and Illegitimacy

When I began my guest-blogging stint here at the Lounge last month, it was not my intention to focus so heavily upon the the unfolding events at Saint Louis University and its School of Law.  I will eventually turn to incidents at other law schools that have significant implications for faculty governance.  But before doing so, I feel compelled to address SLU President Lawrence Biondi's appointment of Tom Keefe, Jr. to serve as interim dean for the 2012-13 academic year at SLU Law.

All indications are that Keefe is a talented attorney with a lucrative law practice, an enthusiastic and committed alumnus of SLU Law who has been rather generous with financial gifts (including a pledge to donate his decanal salary back to the school), and a rather interesting character who isn't shy about making provocative statements.  I have no doubt that he's a huge hit at parties.

And who knows?  Perhaps Keefe, despite his lack of experience in academia, has the qualities necessary to be an outstanding dean.

Putting all of that aside, however, three aspects Keefe's appointment as interim dean have the effect of rendering it illegimate from the outset.  First, Keefe intends to maintain his law practice throughout his tenure as interim dean.  Second, Keefe became a member of the SLU University Board of Trustees shortly after accepting the appointment.  And third, and most significantly from a faculty-governance perspective, the SLU Law faculty was deprived of any opportunity to participate in the selection of Keefe as interim dean.  I will focus for now on the first of these concerns, and address the other two in subsequent posts.

Standard 206(a) of the ABA Standards for the Approval of Law Schools provides that "[a] law school shall have a full-time dean, selected by the governing board or its designee, to whom the dean shall be responsible." (emphasis added).  According to the definition set forth in Standard 106(7), the term "dean" includes "an acting dean or interim dean."  ABA Standards thus envision that the demands of the position of dean require a total commitment on the part of the individual holding that position, regardless of how long he or she intends to hold it.

Keefe, however, has stated publicly that his service as interim dean at SLU Law was conditioned on his ability to maintain his law practice.  Keefe has suggested in this regard that forsaking his clients would be inconsistent with his fiduciary duties to them.

While Keefe's commitment to the interests of his clients is commendable, it should occur to him that, in his capacity as interim dean, one of his essential functions is to ensure that SLU Law is acting in compliance with ABA Standards.  Even though he may be satisfied that he has what it takes to serve SLU Law effectively while maintaining his practice, the fact remains that SLU Law does not presently have a "full-time dean" within the meaning of Standard 206(a).  If leaving his clients behind is not an option, then serving as interim dean is not an option either. 

Comments

[Ralph D. Clifford]

Wow. When we had the need for an Interim Dean last year, the Chancellor met with the full law faculty to solicit recommendations. After that, she met or conversed with each member of the faculty separately to make sure that the consensus she had received at the meeting was not group-think. Subsequently, the chosen candidate was appointed Interim and did a great job until our recent hire of a permanent Dean.

It looks to me that the leadership at SLU ought to review Rule 24(d) of the ABA Rules of Procedure for Approval of Law Schools.

[Recent SLU Law Grad]

These aren't the only provisions of the ABA Standards that Dean Keefe's appointment and the situation at SLU raises about whether SLU is in compliance with the ABA Standards.

Standard 206(c) states that "[e]xcept in extraordinary circumstances, a dean shall also hold appointment as a member of the faculty with tenure." It's no clear, at least publically, whether Mr. Keefe holds a faculty appointment with tenure, given that he did not hold an academic position before he was appointed interim dean. There are probably valid arguments on both sides about whether Dean Clark's sudden resignation/termination was an "extraordinary circumstance" that required the school to select an interim dean who did not have tenure. Certainly the university made no attempt to find an interim dean who held tenure.

Furthermore, and perhaps more importantly, Standard 206(b) requires a law school to provide the dean with sufficient authority "needed to discharge the responsibilities of the position and those contemplated by the Standards." Dean Clark's allegations in her resignation letters raise significant questions about whether in fact she possessed such authority to ensure compliance with the ABA Standards.

After Dean Clark's resignation, Fr. Biondi discussed how using law school funds for University purposes was necessary because the law school was part of a larger institution. While this no doubt has some truth, the ABA Standards require a University to give a law school a certain amount of autonomy in how it is governed.

For example, Standard 210(b) states that "if a university’s general policies do not adequately facilitate the recruitment and retention of competent law faculty, appropriate separate policies should be established for the law school." Certainly SLU's misguided proposal to essentially eliminate tenure with post-tenure reviews would probably significantly impede the law school's ability to recruit and maintain competent faculty.

Standard 210(c) states that "resources generated by a law school that is part of a university should be made available to the law school to maintain and enhance its program of legal education." Standard 210(d) requires a University to give the law school an opportunity to present budgetary recommendations to the "university administration before the budget is submitted to the governing board for adoption." Dean Clark's allegations about Fr. Biondi unilaterally transferring law school to the university president's discretionary accounts funds without knowledge of the Law School Dean suggests that perhaps the school violated Standard 210(c) and (d), and suggests that Dean Clark did not have the power to ensure compliance with these standards.

Furthermore, the now abandoned tenure proposal also could have violated Standard 405(d): "[a] law school shall afford legal writing teachers such security of position and other rights and privileges of faculty membership as may be necessary to (1) attract and retain a faculty that is well qualified to provide legal writing instruction as required by Standard 302(a)(3), and (2)safeguard academic freedom."

[birkin bag]

Good job. Very great topic. Thanks.