The Importance of the Secret Ballot in Law Faculty Personnel Decisions: Promoting Candor and Collegiality in the Academy

Abstract

Law school faculty personnel decisions are often controversial. Debates may be heated, votes may be close, and ill will may be incurred. One way to avoid this enmity and to promote or maintain a collegial atmosphere is to use secret ballots for votes on hiring, retention, promotion, and tenure. The use of secret ballots, however, allows for the possibility of voting for the wrong reasons (e.g., bias, discrimination). But open voting carries the same possibility (e.g., political correctness, fear of reprisals).

This Article discusses the evolution and significance of the secret ballot and considers the arguments for and against its use on law school faculties. It also presents the results of an original survey (with a 97% response rate) on the use of secret ballots in faculty personnel decisions at all law schools in the United States. Comments from the survey and conversations and email exchanges between the author and faculty and administrators across the country reveal a subtext that involves, among other things, the need for candor, openness, fairness, and sensitivity, on the one hand, as well as concerns about politics, frustration, anger, power, dominance, and control, on the other hand.

The Article concludes that, with secret ballots - at the very least, with an open and honest debate about whether to conduct secret ballots - may come not only candor, but also greater harmony and collegiality.

Keywords: voting rights, employment, academic freedom, political correctness, secret ballot, Australian ballot, law school administration, legal education, faculty governance

JEL Classification: D72, I29, K10, K19, K30, K31