Violations During the Pandemic of Law School Faculties’ Authority to Decide Methods of Instruction

During the pandemic, some universities have required as much “in person” teaching as possible everywhere on campus — including a university’s law school. Universities and their administrators who did this were wrong for three reasons. First, their fears that students would not enroll unless taught “in person” turned out to be unfounded. National postgraduate and professional school enrollment, including law school enrollment, actually increased even though almost half the country’s colleges and universities began the fall semester or quickly went primarily or entirely online. Second, these weren’t decisions about public health alone. They were also decisions about the quality of education. “In person” usually turned out to be an untested and primitive form of hybrid instruction that has no track record and has never been used on any scale before. During the pandemic the choice has never been between genuine “in person” teaching and online teaching. Public health concerns continually put some students online because of contagion risks. The real choice has been between fully online teaching (nobody in a classroom) and simultaneous hybrid teaching (some students in a classroom while others participate online). In many but not all situations, simultaneous hybrid teaching is demonstrably worse than fully online teaching. Third, university administrators who made unilateral decisions about methods of instruction violated basic rules on shared governance under the nationally authoritative 1966 AAUP Statement on Government of Colleges and Universities. The AAUP has already begun investigating some colleges and universities on this basis. And to the extent a university’s unilateral decisions included a law school, the university’s actions also violated the American Bar Association’s accreditation standards and the Association of American Law Schools’ Bylaws. A law school needs ABA accreditation for its graduates to take the bar exam, and nearly all law schools are AALS members. The ABA accreditation standards and AALS Bylaws combine to require that decisions about modality — modes of teaching — be made by a law school’s faculty, not by administrators elsewhere and imposed on the law school.