Perpetuating difference? Law school sabbaticals in the era of performativity

© 2007 The Authors. Journal Compilation © 2007 The Society of Legal Scholars. Published by Blackwell Publishing,9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA

Legal Studies, Vol. 27 No. 4, December 2007, pp. 649–677DOI: 10.1111/j.1748-121X.2007.00064.x

Perpetuating difference? Law school sabbaticals in the era of performativity

Maureen Spencer and Penelope Kent*

Principal Lecturers in Law, Centre for Legal Research, Middlesex University

This paper attempts to contribute to the increasing body of research on the workingpractices of legal academics and what has been called the ‘private life’ of the law school.It seeks to subject to further empirical investigation the analysis made by Collier, Cownie,McGlynn, Morley, Wells and others that the new corporate managerialism in universitieshas created a gendered regime of control and target setting. It examines one under-researched aspect of academic practice, namely the award of sabbaticals. The study drawson an examination of the practice of sabbatical leave by academic staff in both pre- andpost-1992 university law schools. Although sabbaticals are widely assumed to be neces-sary for the effective development of research and scholarship, there has been little recentinvestigation of their operation in English universities. This is in contrast to the USAwhere a number of studies have been conducted. Sabbaticals are thus an aspect of the‘donnish dominion’ which, although well covered in campus novels, is missing fromresearched surveys of university life. The paper reviews the relevant literature on sabbat-icals, reports on the results of a study of the published criteria law schools have forawarding sabbaticals and analyses responses to a questionnaire sent to law school headson the operation of their policies. Particular areas of interest are differing practicesbetween universities, possible gender bias and the relevance of sabbaticals both to theteaching versus research debate and to an understanding of academics’ working livesmore generally. The survey results suggest that the practical application of sabbaticalpolicies demonstrates the ambivalent way managerialism operates in universities.Although performance targets are stipulated, the mechanism for enforcement in relationto sabbatical awards is surprisingly light or non-existent. It is argued that the use ofsabbatical leave plays a part in defining both the status of university law schools and alsothe organisation of academic research. It thus impacts on the formation of the professionalidentities of legal academics. Those who are excluded from this benefit may be margina-lised and areas of academic labour considered inappropriate for sabbaticals consequentlyregarded as secondary. This may entrench already existing areas of inequality.

* The authors wish to thank a number of colleagues at Middlesex University who haveassisted in the preparation of this article, including Brenda Barrett, Ian Cheetham, RichardCroucher, Jeff Evans and Ifan Shepherd. Our thanks also for the helpful comments of theanonymous reviewers. Papers based on the research were given at the UKCLE LILI Conferencein January 2005 and at the Annual Conference of the Society for Research into HigherEducation, December 2006.

650 Legal Studies, Vol. 27 No. 4

© 2007 The Authors. Journal Compilation © 2007 The Society of Legal Scholars

INTRODUCTION

Cownie has drawn attention to our incomplete knowledge about the working lives oflegal academics.

1

Her recent detailed study has gone a significant way to fill thosegaps but she acknowledges that the sort of ethnographic studies she advocates formspart of an ongoing cumulative enterprise. The research on which this paper is basedis intended to make a contribution to that enterprise by examining an area which hasbeen, for the most part, absent from surveys on higher education to date, namely theoperation of sabbatical policies in universities. A number of earlier studies haveexamined the relationship between the various elements of academic work, namelyresearch, teaching, administration and service or community involvement, and therelative esteem afforded to each, but there has been little in the way of a more detailedreview of how academics’ work patterns enable them to fulfil both institutionalexpectations and individual career ambitions.

2

Collier has referred to ‘the very

inde-terminacy

of academic labour in terms of time and commitment’. He sees this as apossible contributor to stressful working conditions since it is ‘proving double-edgedwithin the new emotional economy which is being fostered by the corporatiseduniversity’.

3

Academics, Collier argues, are thereby given an open-ended set ofdemanding expectations. If this is so, then arguably one of the manifestations of thisindeterminacy is the university sabbatical, usually understood as a period of extendedpaid leave from daily university duties whereby university teachers are given anopportunity to pursue a sustained and uninterrupted programme of work. How fre-quently are such opportunities available? Is the practice uniform across the sector?What are the expected outcomes of sabbaticals and what processes are in place toensure them? Are they fairly allocated? The classic meso-level studies of universityacademics have not provided answers to such detailed questions.

4

Neither have thelarge-scale empirical studies of law schools specifically included sabbatical schemeswithin their examination of working practices.

5

This is surprising in that the very notion of the sabbatical encapsulates many ofthe features of contemporary controversies relating to universities: it helps illuminatethe actual allocation of work between teaching and research; it suggests that it is

1.

F Cownie

Legal Academics. Culture and Identities

(Oxford: Hart, 2004).

2.

The literature on the relationship between research and teaching is vast. For a recentsummary of the issues and a bibliography, see R Barnett (ed)

Reshaping the University. NewRelationships between Research, Scholarship and Teaching

(Maidenhead: SRHE and OpenUniversity Press, 2005).

3.

R Collier ‘The changing university and the (legal) academic career – rethinking therelationship between women, men and the “private life” of the law school’ (2002) 22 LS 1 at21 (original emphasis).

4.

See, eg, M Trow ‘The public and private lives of higher education’ (1975) 104 Daedalus113; AH Halsey

Decline of Donnish Dominion: The British Academic Professions in theTwentieth Century

(Oxford: Oxford University Press, 1992); T Becher

Academic Tribes andTerritories: Intellectual Inquiry and the Culture of Disciplines

(Milton Keynes: SRHE andOpen University Press, 1989); T Becher and P Trowler

Academic Tribes and Territories:Intellectual Inquiry and the Culture of Disciplines

(Buckingham: SRHE and Open UniversityPress, 2nd edn, 2001).

5.

P Harris and S Beinat ‘A survey of law schools in the United Kingdom, 2004’ (2005) 39The Law Teacher 299; P Harris and M Jones ‘A survey of law schools in the United Kingdom,1996’ (1997) 31 The Law Teacher 38; P Leighton, T Mortimer and N Whatley

Today’s LawTeachers: Lawyers or Academics?

(London: Cavendish, 1995).

Perpetuating difference? 651


necessary for a single academic to be ‘relieved’ from teaching in order to pursueresearch effectively; and that the ‘lone scholar’ model of research is an appropriateone.

6

If sabbatical leave is not available to all academics, this may exacerbate existingdivisions in the university system. There are therefore a number of possible inequal-ities arising from the distribution of sabbatical awards.

7

LITERATURE AND UNIVERSITY SABBATICALS

Observations on sabbaticals in the higher education literature do occasionally sur-face.

8

References in fiction are more prolific and there the picture given of universitysabbaticals is somewhat hedonistic.

9

Perhaps as a result of such exposure, one Amer-ican commentator argued that academics found themselves ‘in the position of coun-tering the belief that sabbaticals are extended vacation, “perks” available only to agroup that also benefits from job security and pleasant working conditions unavailable

6.

Sabbaticals are usually awarded by law schools to individual recipients and thus theresearch to be conducted is likely to be conducted by the lone academic. On the other hand,of course, in some instances he or she may be temporarily joining a team from anotherinstitution and thus work collectively. Further research is needed to investigate the extent ofthis.

7.

See also M Kogan ‘Teaching and research: some framework issues’ (2004) 16 HigherEducation Management and Policy 9. Kogan points out (at 10) that of the approximately105,000 full-time teachers in higher education institutions, only 43% were entered for theResearch Academic Exercise in 2001. It is interesting to question how far staff becameeligible for entry, thus enhancing their career prospects, as a result of previously allocatedresearch time allowances rather than because of intrinsic differences between them in researchcapability.

8.

See, eg, J Hinde ‘Are sabbaticals being phased out?’

The Times Higher EducationSupplement

14 July 2000. Hinde observed that most ‘old’ universities include provision forsabbaticals in their regulations with guidelines on who can apply and how often, and othershave informal arrangements at the discretion of heads of departments. On the other hand, shereported, the new universities for the most part did not enjoy this generosity. She quoted theNational Association of Teachers in Further and Higher Education (NATFHE) research officerLiz Allen regretting that in the former polytechnics winning a sabbatical is often ‘an impossibledream’. The implication is thus that they are desirable but unattainable. Allen commented:‘There is no history of sabbaticals, nor often the resources for them. While some new univer-sities may be sympathetic to the idea of sabbaticals, I don’t know of anywhere there is a formalentitlement. There is a huge difference between the two halves of the sector. Our members arestruggling to fit in research. The notion of having a whole term to do research would be aluxury’. Even in the older universities, according to Hinde, if outside funding was not secured,it was getting harder to be awarded a sabbatical (NATFHE and the Association of UniversityTeachers (AUT) amalgamated in 2006 to form the University and College Union (UCU)).

9.

For an amusing account see T Caesar ‘Flying high and flying low: travel, sabbaticals andprivilege in academic life’ (1999) 33 Style 443. She quotes David Lodge’s Morris Zappreflecting on the joys of the academic life: ‘Of course, you had to be distinguished – by, forinstance, having applied successfully for other, similar handouts, grants, fellowships and soon, in the past. That was the beauty of academic life, as Morris saw it. To them that had, morewould be given . . . In theory, it was possible to wind up being full professor while doingnothing except be permanently absent on some kind of sabbatical grant or fellowship. Morrishadn’t quite reached that omega point, but he was working on it’: D Lodge ‘Small world’ in

David Lodge Trilogy

(London: Penguin, 1993) p 382.



to professionals outside the academy’.

10

In marked contrast to the position in the UKthere have been a number of studies of sabbaticals in American universities. In 1999,the American Association of State Colleges and Universities published a report

FacingChange: Building the Faculty of the Future

in 1999 which contains a lengthy accountof sabbaticals in a section headed, ‘Faculty Reward Structures’. The report surveyedthe sabbatical policies of 50 colleges and universities across the country. It concluded:

‘All institutions had policies regarding sabbatical leaves and they had manycharacteristics in common. Not all institutions offer sabbaticals but those that do(including the 50 we reviewed) offer them to full time faculty members at regularintervals – usually every seventh year . . . Sabbaticals have been and are a keyingredient in the faculty development continuum. Sabbaticals provide time forfaculty to conduct scholarly work, improve their teaching, develop curricula andenhance their artistic performance and creative growth.’

11

This US report added that public perception of academic sabbaticals was unsympa-thetic: ‘Higher education needs to more effectively communicate the value of sabbat-icals to students, institutions and the public’.

12

In a perhaps predictable instrumentalistargument it stressed the relationship between private and public sectors in the caseof sabbaticals:

‘Private sector information on training and development confirms that collegesand universities should encourage more sabbatical type activity. More and morebusinesses in the US . . . offer their employees sabbatical type leaves because suchopportunity can boost productivity, promote flexibility and counter mediocrity andburn out.’

13

The Association called for institutions to ‘consider allowing greater flexibility in thetraditional sabbatical program to include faculty improvement leaves’.

14

Concern about sabbaticals in the USA follows a long tradition. In a much earlierstudy, published in 1934, American researchers had examined the status of sabbaticalleave in publicly controlled institutions of higher learning. The outcomes, accordingto their findings, included the ‘improvement of present staff’ and attracting the ‘highertype of person’.

15

The fascination of American university commentators with sabbat-icals is not surprising since Harvard University is reputed to have invented the

10.

E Gerdes ‘Remembering the contemplative life’ (1998) 84 Liberal Education 58 at 58.She added, ‘. . . those responsible for educating students in the life of the mind require time tothink . . . Sabbatical leaves can be seen . . . as higher education’s method of intermittentlyrestoring time to think’.

11.

American Association of State Colleges and Universities

Facing Change. Buildingthe Faculty of the Future

(1999) pp 26–27, available at http://www.aascu.org/pdf/facing_change.pdf.

12.

Ibid.

13.

Ibid.

14.

Ibid, pp 27–28.

15.

See H Bennett and S Scroggs ‘Sabbatical leave’ (1932) 3 The Journal of Higher Education196 at 199. Even in the USA, however, sabbatical policies can run into difficulties. Wilsonreported that travelling sabbaticals were being curtailed since the two-career families made itmore difficult for professors to take leaves that involved uprooting their families. In addition,technological advances now allow academics to communicate with colleagues and get datawithout ever leaving their offices: R Wilson ‘The stay-at-home sabbatical increases in popu-larity’ (1999) 45 Chronicle of Higher Education A16.

http://www.aascu.org/pdf/



university sabbatical when it lured the philologist Charles Lanman from rival JohnHopkins University with the promise of every seventh year off.

16

Since then they haveformed part of the terms and conditions of employment of many university academics.The American author Zahorski has written one of the very few published monographsgiving a detailed examination of university sabbaticals.

17

His review suggests that thescope and expectations of sabbatical leave are rather broader in the USA than theUK. Zahorski adopts the American educationalist Carter Good’s definition of asabbatical, ‘[The sabbatical is] a plan for providing teachers with an opportunity forself-improvement through a leave of absence with full or partial compensation fol-lowing a designated number of years of consecutive service (originally after sixyears)’.

18

Zahorski distinguished sabbaticals from other leaves of absence.

19

He advo-cated sabbatical policies which were not dominated by individual self-interest.

20

Reviews of sabbatical policies such as his cover academic departments in general andwe have not uncovered any that deal specifically with practice in law schools.

21

RESEARCH OBJECTIVES AND METHODOLOGY

One research objective in examining the operation of sabbatical policies specificallyin law schools in England and Wales was, drawing in particular on Collier’s research,to investigate what they revealed about the working lives of legal academics.

22

Anthro-pological studies of disciplined-based ‘academic tribes’ have been pioneered by the

16.

KJ Zahorski

The Sabbatical Mentor. A Practical Guide to Successful Sabbaticals

(BoltonMA: Anker Publishing Company Inc, 1994) p 6.

17.

Ibid.

18.

Good was the editor of the

Dictionary of Education

(New York: McGraw-Hill, 1959).

19.

Zahorski, above n 16, p 5. He wrote, ‘Good’s definition is particularly useful in that itidentifies the three defining elements that help us distinguish a sabbatical from other kinds ofextended leaves of absence. First, the sabbatical has a clearly-defined purpose of providingopportunities for self-improvement; second, the sabbatical is paid leave, with the awarding offull or partial salary a vital part of the arrangement between faculty and institution; and third,the prime determinant of eligibility is a designated period of prior service (usually six years).At least two other distinguishing traits need mentioning; most sabbatical policy statements alsostipulate (1) a required return to service and (2) the filing of a sabbatical report’. Our researchhas revealed that by contrast English university sabbatical policies do not generally specify areturn to the institution as a contractual requirement.

20.

Zahorski, above n 16, p 126: ‘If we are to strengthen significantly our sabbatical system,we must try to reach philosophical agreement on the purpose and place of the sabbatical. Alltoo frequently the sabbatical is viewed either as a motivational carrot administrators danglebefore the noses of faculty, or as a faculty entitlement about which administrators should havelittle or nothing to say. Perhaps a more balanced, and productive, approach is to view thesabbatical as a professional growth opportunity benefiting not only faculty but also studentsand the institution as a whole: in short, a programme for the good of the entire academiccommunity’.

21.

For a more recent review of policies and practice in the USA, see C Sima ‘The role andbenefits of the sabbatical leave in faculty development and satisfaction’ [2000] New Directionsfor Institutional Research 65.

22.

Collier observes that, ‘Whilst recognising there are dangers in drawing wider inferencesfrom the study of one discipline, the exploration of a distinct subject area has a potentialanalytic use for developing an understanding of the changing nature of academic work moregenerally’: Collier, above n 3, at 5.



work of writers such as Trow, Halsey, Trowler

23

and Becher.

24

The researchers antic-ipated that the operation of a sabbatical policy could throw some light on questionsof equality in law schools. The research therefore was based in part on the contentionthat a proper study for academics is the working of the academy.

25

As Tight points out:

‘While it might be argued, at a fairly superficial level, that the idea of academicsresearching academic work seems a peculiarly introspective form of navel-gazing,further reflection should suggest that understanding the nature of academic workis critical if we are to understand higher education.’

26

More specifically, another research objective of the investigation was to illuminatesome features of the relative standing of research and teaching.

27

It is commonplacethat universities are facing a period of transition and rationalisation. The post-1992universities in particular are concerned about the future funding of research in theirinstitutions. The debate is centred in part on the place that research should play inwhat were formerly predominantly teaching institutions. The issue of the distributionof central funding has dominated the discussion and there has been little detailedempirical work on precisely how a research environment is developed and fostered.It is generally acknowledged that, although the link between teaching and researchis jealously guarded by most academics, there is, in practice, little intellectual per-ception of their integration.

28

How a department structured its sabbatical policy and

23.

Above n 4.

24.

Becher pointed out that ‘. . . [the] ways in which particular groups of academics organisetheir professional lives are intimately related to the academic tasks on which they are engaged’:Becher, above n 4, p 2.

25.

Halsey, above n 4, p 2. Halsey quoted Burton Clark: ‘Observers have long noted thatacademicians study everything but themselves, a remarkable failing in an estate composed ofscholars and researchers devoted to the task of assisting others to understand the natural andsocial phenomena that make a difference in shaping the modern world. Of this we can be sure;the academic profession makes a difference. We can hardly know too much about it. In themid-1980s we still know little’.

26.

M Tight

Researching Higher Education

(Maidenhead: SRHE and Open University Press,2003) p 152. He adds, ‘Academics are, after all, the key to the higher education process, therewould be no one to teach and supervise students, to carry out and disseminate academicresearch, or, to a considerable extent, to run higher education institutions’.

27.

For the landmark discussion of the nature of academic research, see E Boyer

ScholarshipReconsidered: Priorities for the Professoriate

(Menlo Park, California: The Carnegie Founda-tion for the Advancement of Teaching, 1990).

28.

For a review of the current debate see A Jenkins and R Zetter

Linking Research andTeaching in Departments

(London: The Higher Education Academy, 2002). The authors rec-ommended (p 12) that ‘. . . the way forward is to conceive research and teaching and theuniversity’s role in the community in terms of a process of learning. The policy implicationsof this include how to structure and organise the university, including academic departments,to ensure effective linkages between forms of learning – rather than focusing on linkingteaching and research at the level of the individual academic’. McNay has argued that thefunding system operated by the Research Assessment Exercise has led to a gradual separationof research from teaching for individuals, departments and institutions. See I McNay ‘Theparadoxes of research assessment and funding’ in M Henkel and B Little (eds)

ChangingRelationships between Higher Education and the State

(London: Jessica Kingsley, 1998) p 191at p 196.



the extent to which this privileged research or teaching would arguably be someindication of the relative importance it attached to these activities and how connec-tions could be made between them.

Finally the researchers had a more general objective. Perhaps the study of thissmall corner of the academic life could have some resonance in society at large. AsDelanty put it:

’The role of the university must be to make sense of this situation of endlesschange and secondly it must enable people to live more effectively in this chaoticworld . . . The university must be capable of giving society a cultural direction.The national state once fulfilled this function as the Church had earlier.’

29

We wished to investigate whether there were valuable outcomes for society as a wholethat could flow from university sabbatical programmes. The planned research thusset out to achieve several objectives.

30

It aimed to contribute to the intellectual storyof universities as social institutions by examining the evolution and current operationof sabbaticals and their place in research and teaching. The results, it was hoped,would throw some light on the impact of the dominance in universities in recent yearsof the agenda of audit and quality, evidenced strikingly in the demands of theResearch Assessment Exercise (RAE).

METHODOLOGY

The methodology adopted included, first, an examination of the published criteriauniversities in England and Wales have for awarding sabbaticals. This part of thestudy covered all those universities offering qualifying law degrees and investigatedwhether or not the university as a whole had a published policy or whether sabbaticalswere awarded by a more informal discretionary process. Our preliminary investiga-tions had indicated that sabbatical policies were usually contained in university-widedocuments. At the second stage of the research, all heads of law schools weresurveyed.

31

They were asked to complete a questionnaire requesting information onthe awarding of sabbaticals over a 3-year period.

32

29.

G Delanty

Challenging Knowledge: The University in the Knowledge Society

(Bucking-ham: SRHE, Open University Press, 2002) p 155.

30.

The authors gratefully acknowledge the award of a seedcorn grant for the research fromMiddlesex University to be used for administrative assistance.

31.

It was anticipated that there might be situations where the university did not have apublished policy, although where the law school did so, we sent questionnaires to all heads oflaw schools including those from universities which had told us they did not have a policy.

32.

We estimated that this period of time would give meaningful figures on trends in thegranting of sabbaticals and that it would also be possible for the figures to be supplied withoutcausing too much inconvenience to the respondents. Information was also gathered on thenumber of academics employed in the law school; the frequency of sabbatical awards; thepurpose of sabbaticals (ie predominantly research, predominantly teaching related, mixedpurpose); and the characteristics (gender, post) of the recipients. The data were collected inthe academic year 2003/4.



REVIEW OF UNIVERSITY POLICIES

At the first stage of the survey information was collected from human resourcedepartments.

33

There seems to be no central record kept of university sabbaticalpolicies. The relevant trade unions were not able to give definitive answers as to whichuniversities had sabbatical policies.

34

This meant the requests for information had togo directly to the institutions. In October 2003 UKCLE listed 79 institutions inEngland and Wales as awarding qualifying law degrees (excluding the London exter-nal degree). Because of their special circumstances, it was decided to exclude fromthe survey the Open University, Buckingham University and what were at that timeaffiliated colleges of universities, namely Buckinghamshire Chilterns UniversityCollege, Bradford College, and the Mid-Kent College, thus reducing the populationto 74. Pre-1992 universities comprised 36 of these and there were 38 post-1992universities.

We obtained either directly from the university human resource departments orfrom the public websites sabbatical policies from 21 of the 36 pre-1992 universitieswho offered qualifying law degrees, giving a response rate of 58%. In all of theseinstitutions, respondents told us that the university had a sabbatical policy and madecopies available to us. Of the 38 post-992 universities, we had responses from 22,also giving a response rate of 58%. Eight of those sent us copies of their university-wide sabbatical policy. Two others had staff leave policies which did not includesabbatical leave, namely a ‘Career Break’ and a ‘Leave and Time Off’ policy. Eleveninstitutions told us they had no policy. In one further institution there was no writtenpolicy but ‘requests are considered individually’. Thus sabbaticals, although notunknown, are available in a minority of new universities. In summary, 36% (8/22) ofthe post-1992 institutions who responded told us that they had a formal writtensabbatical policy.

One post-1992 university reported that it had its scheme axed in 2001 followingthe cut to the HEFCE research funding.

35

It had run for only 6 years. A member ofthe human resource staff of another post-1992 institution wrote:

‘We do not have a published policy university-wide, one was produced someyears ago but became a dead letter. Some Faculties include “mini-sabbaticals” (my

33.

The success of the study largely depended on the goodwill and cooperation given byhuman resource departments, to whom we express our thanks. The Head of the HumanResource Service at the authors’ university kindly agreed to send a request to all heads ofuniversity human resource departments asking them to send a copy of their sabbatical policyor to let us know if they did not have one. It was necessary to follow up the initial email withtelephone requests in a number of instances. A number of universities have their policydocuments available on their public website. It proved quite difficult to get up-to-dateinformation.

34.

Very helpfully the AUT sent us a copy of

Essential AUT Conditions of Service

which listsuniversities with sabbatical policies. However the research officer commented that it was notclear when the information was collected and he therefore ‘questioned its reliability’. Inresponse to a request for information on sabbaticals in post-1992 universities, the NATFHEresearch officer responded that ‘generally the post-1992 institutions do not give sabbaticalsother than in occasional hard won circumstances – and even then they are not always paid orteaching has to be covered from within departmental resources’ (email to authors).

35.

For an illuminating examination of the impact of the RAE on a post-1992 university, seeP Sikes ‘Working in a “new” university: in the shadow of the Research Assessment Exercise’(2006) 31 Studies in Higher Education 555.



term!) as part of their staff development arrangements. I think that today suchthings are rarer and where they do take place, are shorter (perhaps a semester) andmuch more focused on outcomes.’

More positively some universities had only recently introduced a sabbatical policy.The language in a number of the policies suggests differing approaches to sabbat-

ical leave. One pre-1992 university policy proclaims that ‘Sabbatical Leave is a rightof members of academic staff whereas other forms of leave are considered a privilegeor an “employment benefit” ’. Another pre-1992 institution, on the other hand, statesthat, ‘Study leave is an expected privilege although not an absolute right’ and anotherpoints out that, ‘Study leave is granted as a privilege, each application being consid-ered on its merits; it is not a contractual right or entitlement’. All the policies set outin some detail the procedures for applications and means of appeal. For the most partthese include the requirement on the applicant to put detailed proposals and to seekapproval from senior university management.

The policies vary in the extent to which they privilege research. Most are quiteexplicit in spelling out their objective and this is often indicated in the very name ofthe policy. One pre-1992 university policy is titled

Research Leave

. It reads:

‘The university wishes to be research-led and to improve the quality of itsresearch. The university recognises the importance of Research Leave in helpingit to achieve this aim. The objective of a period of Research Leave is to allowacademic staff to concentrate on a specific programme of work that will lead tospecific identifiable and measurable outcomes of benefit to the university’sresearch standing.’

However, one unexpected finding from the research was that a number of the policiesdid acknowledge, albeit to a varying degree, that paid sabbatical leave could beawarded for furthering teaching or study other than research. Thus a pre-1992 uni-versity policy stated that it accepts that ‘both research leave and study leave are tobe seen as staff development, the latter consisting of work more relevant to teachingthan research’.

36

The majority of other university policies do not acknowledge teaching quite soexplicitly. One explains that its programme is for research-active staff but ‘applica-tions for other purposes (for example to develop new teaching skills, tools and/ormaterial) will be considered’. It adds that ‘staff with a poor record of research activityshould not be encouraged to apply for study leave unless their application focuses ona scholarly activity other than research’. Another, on the other hand, robustly cham-pions teaching in its policy: ‘Sabbatical leave is integral to the support of high qualityresearch and of initiatives in teaching’. Similarly a pre-1992 university policy statesthat, ‘The general purpose of sabbatical leave is to enable members of the teachingstaff to pursue research; to undertake preparation of new courses and to retrain infresh areas of academic activity’.

36.

The written policy defined study leave as involving ‘(a) undertaking some specific teach-ing-related project such as the development of computer-aided learning software, the produc-tion of a textbook or other published output as distinct from the preparation of a new courseof lectures or practical classes, or (b) developing a new teaching-related skill and (c) in eithercase providing in advance details of a predicted outcome or outcomes against which achieve-ment can be measured’.



A number of universities have ‘Learning and Teaching Leave’ sabbaticals as wellas Research Leave and one of these states that ‘both schemes should be given equalstatus’. One post-1992 institution’s policy refers to ‘Teaching Fellowships’ which ‘arespecifically available for the development of teaching and learning material’. Thusformally there is a clear acknowledgement in the stated policies of a number ofinstitutions that sabbaticals may be awarded for both teaching and research.

There is a considerable variety in the conditions set for sabbatical awards.

37

Somehave no qualifying period. Of the pre-1992 universities Oxford and Cambridge appearto have the most generous specific provision of a 1 term sabbatical every 6 terms;while the least generous is found in a new university which ‘normally’ allows 1semester after 7 years. One pre-1992 university has ‘no specific qualifying period’but otherwise the range is between 1 term after 8 terms and 1 year after 7 years.However, all the policies appear to contain a certain amount of discretion and ourresearch revealed that sabbaticals were in practice granted after shorter periods ofservice than that specified in the policy.

38

A number of the policies exhort applicantsto seek external funding. If that is not forthcoming, they vary in the extent to whichthey specify provision of additional resource. Much depends also on staff collabora-tion. One university, for example, provides for a ‘bid’ to be ‘made in the comingfinancial round for funds to allow where necessary Heads of Departments to requestsome assistance to buy in teaching cover for staff on study leave, with specialconsideration being given to the needs of small departments’.

LAW SCHOOL SABBATICAL PRACTICE

Our review of university-wide sabbatical published policies indicates that some, atleast, of the differences within the sector are not as sharp as might be assumed. Justover a third of respondents from new universities in our survey did offer sabbaticals,and the written policies of a number of both pre- and post-1992 universities provide,at least in principle, for sabbaticals to be taken for teaching purposes. In order toobtain more detailed information on the actual operation of the university policies inlaw schools, a questionnaire was sent to heads of law schools in England and Wales.The population was also drawn from the UKCLE list of universities which offerqualifying law degrees.39 Here, however, because of the special character of thecollege system, it was decided to exclude Oxford and Cambridge as well as those

37. There is some controversy over the origin of the word ‘sabbatical’. Zahorski (see aboven 16, p 6) points out that, contrary to a common popular misconception, sabbatical does notmean every seventh year but is derived from the Hebrew word ‘shabbath’ meaning ‘to rest’.38. One post-1992 university has devised an intricate policy which was sent to us in draftform. It contained an elaborate ‘Sabbatical Leave’ arrangement obviously designed to be asefficient as possible: ‘Members of staff, by prior written agreement of their dean, may accu-mulate professional development time to provide a significant period of continuous sabbaticalleave in accordance with the following: (i) in any year not more than seven days of holidayand eight days of professional development may be “banked” towards sabbatical leave; (ii) notmore than a total of sixty days may be “banked”; (iii) when the time banked is 60 days, theuniversity will add a further 15 days’.39. Since law schools differ widely in their size as well as their nomenclature within theuniversity, with some known as ‘departments’ or ‘academic groups’, we focused on the UKCLElist of institutions with qualifying law degrees for the purpose of the survey.



excluded from the first stage of the study. This gave a population of 34 pre-1992universities and 38 post-1992 institutions.

Availability of sabbaticals across the sector

We received 13 responses to our questionnaire from the 34 pre-1992 university lawschools giving a response rate of 38%. There were 22 replies from the 38 post-1992university law schools, a response rate of 58%.40 Although these figures are small andthis research therefore does not present a complete census of the sector as a whole,the responses do reveal trends which we suggest merit further and fuller investigation.The questionnaire set out a number of specific questions on the operation of asabbatical policy in the 3 preceding years.41 We asked the heads of law schools to tellus whether their universities had published sabbatical leave policies.42 The responsesdid not always match the responses from the human resource departments. This isexplicable, of course, because the same universities did not respond in these twodistinct parts of our survey. Of the pre-1992 institutions, 71% (11/13) of heads of lawschools told us there was a university-wide policy, whereas this was the case for only23% (5/22) post-1992 universities.

These responses also confirmed that sabbaticals are all but universal in pre-1992universities but available in a minority of new universities. It was, of course, possiblethat the law schools would not necessarily follow university policy and so a questionon whether the university and law school practice differed was included to enable usto establish whether law schools deviated from university policy on sabbaticals. Inone pre-1992 university, one law school did not grant sabbaticals although the uni-versity did and one law school granted sabbaticals although it was stated that theuniversity as a whole did not have a sabbatical policy. Five out of the respondent post-1992 university law schools granted sabbaticals despite there being no university-wide policy, whereas one did not grant sabbaticals although the university had apublished policy. The final position that emerged was that 92% (12/13) of law schoolsin pre-1992 universities granted sabbaticals, whereas 45% (10/22) did so in post-1992institutions. The latter proportion contrasts with the percentage given above of 36%of new universities with sabbatical policies according to responses from humanresource departments.43

40. Some respondents did not answer all the questions and some told us they were giving esti-mates rather than precise figures in response to some questions. We have not distinguished theseestimates from the other data. As a result of different response patterns the survey populationvaried between questions. The lower response rate from pre-1992 institutions may be partlyexplained by the fact that universities who did have policies had more questions to answer.41. A number, but not all, heads of law schools, gave us permission to identify their university.It was decided however that since we were interested in general trends rather than specificinstances the responses could best be analysed collectively and anonymity was preserved for all.42. As has been explained above, the researchers did seek copies of university policies fromhuman resource departments so in some ways this question was redundant. It was included incase there were instances of university sabbatical policies where we had not obtained a responsefrom the human resource department.43. Of course it may be that our survey is not representative in that law schools which havesabbatical policies in post-1992 universities were more inclined to respond than those who didnot, while an alternative explanation is that law schools more readily grant sabbaticals thandepartments in the rest of the university.



Thus law schools in both sectors do not exactly follow university policy and indeedsome law schools had their own written sabbatical policy documents which wereadditional to the policy of the institution. This was the case in 58% (7/12) pre-1992law schools which granted sabbaticals and 40% (4/10) of the post-1992 law schoolsgranting sabbaticals. In terms of the existence of sabbatical policies, the final picturethat emerged was that just one law school in the post-1992 sector which grantedsabbaticals did not have either a university-wide or specific departmental set ofpublished criteria. In response to our question of what actual criteria were appliedthe university responded that they included ‘clear reason, outcome, resourced’.44

Academic work appropriate for sabbaticals

The published criteria of a number of sabbatical policies indicate, as we outline above,that such leave may be awarded for the development of teaching as well as research.We investigated whether this did in fact happen in practice. Preliminary surveys anda study of the literature including the published policies indicated that sabbatical leavecould include the following areas of academic work, (these were listed (a)–(e) in ourquestionnaire with an additional category for respondents to describe practices notcovered by these categories):45

(a) conducting scholarly research;(b) engaging in the preparation of teaching materials or other work related to teaching;(c) taking a recognised course of academic or professional study;(d) undergoing a finite period of secondment to work in another institution.

The questionnaire asked heads of law schools to indicate which of these categorieswere included in their current practice. They were also given the opportunity to addany additional areas of work. Of the respondents who answered this question, sevenout of ten of the pre-1992 universities stated that they exclusively granted sabbaticalsfor conducting scholarly research. Three gave differing combinations of the categoriesset out above but included (a). Two referred to ‘engaging in the preparation ofteaching materials or other work related to teaching’, one stating that it ‘could beagreed as an adjunct’. The other wrote in explanation:

‘(a) plus (b) for study leave. (d) would normally be covered by leave of absenceunless the period in the other institutions involved research or teaching develop-ment eligible for study leave. There is also leave of absence to accept a researchaward where the research provides replacement salary for the staff concerned.Some staff are also awarded unpaid leave of absence to accept temporary appoint-ments in other academic institutions or public appointments.’

Insofar as the sabbaticals actually granted reflected the predominance of scholarlyresearch the results were more uniform. We asked respondents to specify the pur-pose of each sabbatical granted in the current and preceding 2 years. For the pre-1992 universities all who responded to this question indicated that these were

44. One other law school which did grant sabbaticals but where there was no university policydid not respond to the question about the criteria set.45. In fact no respondents used this additional category.



overwhelmingly for conducting scholarly research, with two including ‘undergoinga finite period of secondment to work in another institution’ as an additional pur-pose for one sabbatical recipient at each institution. One respondent specificallylisted writing articles or books as the expected outcome of every sabbaticalgranted over the previous 3 years.

In the post-1992 sector, on the other hand, there was a wider range of acceptablereasons for granting sabbaticals. Four out of the ten law school heads who respondedto this question stated that scholarly research was the only reason for sabbaticals anda greater spread of categories was indicated. The others acknowledged various com-binations of the categories we listed, although all included scholarly research. Thustwo included all four categories, one scholarly research and a period of secondmentto another institution and two scholarly research and taking a recognised course ofacademic or professional study. With regard to the sabbaticals actually awarded, 41out of the total of 48 for which we had responses on this question were for scholarlyresearch, while six were for ‘engaging in the preparation of teaching materials orother work related to teaching’ and two were for ‘undergoing a finite period ofsecondment to work in another institution’. Four of the six sabbaticals awarded forpreparing teaching materials were at one institution out of the nine awarded over the3 years. This suggests that management here at least had found it possible to introducea more inclusive policy.

Profiles of staff taking sabbaticals

The proportion of staff on sabbatical at any one time would obviously have an impactto a greater or lesser extent on the allocation of work in the department. Respondentswere asked to give the number of staff on sabbatical in the academic year 2003/4 andalso the overall size of the law school in order to assess what proportion of staff thisrepresented. The proportions on sabbatical ranged between 0% and 21% for the pre-1992 sector, the median being 17%. The sabbaticals awarded in 2003/4 as a proportionof those in law schools in the former polytechnics, on the other hand, was generallysmaller although we only had meaningful responses on this question from sevenuniversities. The proportions ranged between 0% to 7% except for one universitywhere 16% of staff were on sabbatical in that year. The median was 4%. Thus, onlya relatively small proportion of the staff is on sabbatical at any one time in post-1992institutions. In the pre-1992 universities, law school management, on the other hand,has to distribute teaching and administrative work bearing in mind that a significantproportion of the staff may not be available for this work for periods ranging from 1term to 1 year.

Gender

The existence of a systemic gender bias in law schools has been the subject of severalstudies.46 Wells has graphically demonstrated its existence in her 1998 study of 48

46. See, eg, C Wells ‘Working out: women in law schools’ (2001) 21 LS 116 and C Wells‘Women law professors – negotiating and transcending gender identities at work’ (2002)Feminist Legal Studies 1.



women law professors.47 She wrote, ‘The strongest theme in the interviews I con-ducted was the confirmation that women believe that they take on more pastoral workin universities. They think that students and colleagues believe that this is somethingwomen do better’.48 The effect however may ‘mark’ women as not serious aboutresearch or scholarship, even if they patently are. Women may be left with no timefor or be perceived as uncommitted to research. Different standards may be appliedto women who fail their obligations than to men. Because research is higher orderand intangible in the university value system, these ‘“failings” are not tolerated andat the same time the “absent-minded” male intellectual is excused from the mundanework of administration’.49 Acker and Feuerverger also argue that women are far morelikely than their male colleagues to take up pastoral and lower level administrativework rather than research which is a prerequisite for a sabbatical award.50 McGlynn’sresearch also drew attention to the small number of women legal academics in seniorpositions dependent for advancement on ‘gatekeepers’ who tended to be men. Shewrote that they ‘determine, among other things, teaching requirements, nominationsfor important university committees, research support, sabbatical leave and promo-tions’.51 Drawing on more recent research Cownie comments, ‘In terms of careerprogression, the abilities which appear to be rewarded by the prevailing culture arebeing single-minded about research (often at the expense of being a “good citizen”),being male, and the ability to network effectively’.52

Our research attempted to discover whether there was any gender bias in thegranting of sabbaticals, for example whether the proportion of women in the school

47. C Wells ‘Ladies in waiting: the women law professors’ story’ (2001) 3 Sydney LawReview 167. Wells wrote (at 167) ‘In the UK there are more men in academic positions in lawschools than women by a ratio of about 60 to 40. There are more men than women in seniorpositions in law schools by a proportion of about 70 to 30. There are more men at theprofessorial level by a factor of about 83 to 17. This translates to approximately 55 womanlaw professors. That is less than one woman professor for every law school in the UK. Nearly60 per cent of law schools in the UK have never had a female professor. The same percentageof schools has never had a female head of school’.48. Ibid, at 176.49. Ibid.50. S Acker and G Feuerverger ‘Doing good and feeling bad: the work of women universityteachers’ (1996) 6 Cambridge Journal of Education 401. Their research is based on experiencesin Canadian Universities but it has considerable resonance for the UK. The expectation wasthat that the feminist university teacher would ‘be intellectually inspiring yet endlessly nurtur-ing’ (at 403). The job descriptions of university lecturers require that they engage in teaching,administration (or ‘service’ in the Canadian context) and research. One of the respondentscomplained (at 410): ‘Nobody else in the real world is saying do everything, in order to be anacceptable professional. Except academe. Academe’s saying, you must do scholarship. Youmust do service. You must do teaching. And they must all be wonderful. A third, a third, athird. It’s bizarre’. The authors showed that many of the women believed that they should carefor their students yet they also found that an emphasis on working with students tended to theoverlooked in the promotion system and left them with heavy workloads. See also C Currie,P Harris and B Thiele ‘Sacrifices in greedy universities: are they gendered?’ (2000) 12 Genderand Education 269.51. C McGlynn The Woman Lawyer: Making the Difference (London: Butterworths, 1999)p 50.52. Cownie, above n 1, p 95. See also F Cownie ‘Women legal academics – a new researchagenda’? (1998) 25 Journal of Law and Society 102.



(which may in itself of course contain a gender bias) reflects the granted sabbaticals.One question asked respondents to give the gender of each sabbatical recipient overthe 3 proceeding years and also the number of law school members in the year of thesurvey who were women.53 For the pre-1992 universities which responded to thequestion the proportion of the total staff in the year of the survey which was femaleranged between 30% and 62%. The mean was 46%.54 Overall 165 sabbaticals wereawarded by our respondent pre-1992 universities across the 3 years covered by thesurvey. Leaving out the two universities who did not respond to the question on thegender of recipients gave a total of 144 sabbaticals. Of these 58 recipients (40%) werewomen.55 For the post-1992 universities the proportion of women academics rangedin the survey year between 35% and 71%, including those universities whichresponded that they did not have a sabbatical policy. The mean was 49%.56 Over the3 years covered by the survey, there were 45 sabbaticals awarded in our respondentuniversities who gave us details of the gender of recipients and of these 18 (40%)were to women.57 Thus, on these admittedly small figures, across the university sectoras a whole, it would not be accurate to say that there was a clear gender bias eitherin the proportion of women in law schools or in the proportion of sabbatical recipients.However, the figures do indicate that women are less likely to be awarded a sabbaticalthan men in both university sectors, and that the mean proportion of women awardedsabbaticals over the 3 years was lower than the proportion of women employed inthe year of the survey. It is unclear from our survey whether a possible aspect ofgender inequality is that there may be a preponderance of women in those law schoolswhich do not grant sabbaticals. The one pre-1992 law school which did not grantsabbaticals did have the highest proportion of women academics of all our respon-dents (62%) but, on the other hand, in the post-1992 law schools which did not grantsabbaticals the mean percentage of women academics was 46%, which contrasts with51% in those which did grant sabbaticals.58

A number of studies have suggested that the emphasis on research outputs insabbatical policies may exacerbate gender imbalances in university law schools.Devos, writing about Australian universities, points out that:

‘The current climate of accountability in higher education has reinforced thedefinition of “the good researcher” in terms of a narrow band of research outputs.The attitudes and behaviours which the good (“successful”) researcher is required

53. The question itself caused some concern. The head of a post-1992 university law schoolwas ‘somewhat taken aback’ by it and responded simply ‘a proportionate number’. We did notask for historic figures on the employment of women.54. Taking just the pre-1992 law schools which offered sabbaticals, the mean percentage ofwomen staff in the survey year was 44%.55. The proportion of women sabbatical recipients in that same year in the relevant univer-sities ranged between 12% and 100%. The individual percentage figures for each university,particularly the new universities, are too small to be meaningful.56. Taking just the post-1992 law schools which offered sabbaticals, the mean percentage ofwomen academic staff in the survey year was 51%.57. One of these sabbaticals was just for 1 month, the only one in the study which was noteither a semester, a term or a year.58. One disadvantage faced disproportionately by women academics is that traditionally agreater proportion of them are on fixed-term contracts; such staff are rarely eligible forsabbaticals. See E Halvorsen ‘Female academics in a knowledge production society’ (2002)56 Higher Education Quarterly 347 at 356.



to display include selfishness around research time (“Just say NO”), protectivenessabout research ideas, a competitive approach to grant-getting, minimal time andeffort invested in (particularly undergraduate) teaching, developing skills andinvesting energy in self-promotion and networking locally and internationally.’59

These are behaviours, Devos points out, which are more alien to women. In her studya lateral approach to enhancing research output was shown to have had some success.This had emphasised confidence building, sustained support and specific researchskills. Halvorsen also doubts whether equality of opportunity for women in univer-sities will be realised without initiatives, which she argues must be national ones, ineach higher education institution.60

Research conducted by the Association of University Teachers has demonstratedthat men were twice as likely as women to be rated ‘research active’. Its report,published in 2004, was based on the cost centre statistics from the Higher EducationStatistics (HESA) and so does not give separate figures for law, which is included insocial sciences.61 The overall figures however indicate that 19.3% of female academ-ics were counted as research active for the 2001 RAE, compared to 36.5% of all maleacademics. The results were uneven between universities. Female staff in specialistinstitutions, higher education colleges and post-1992 universities were far more likelyto be disadvantaged than those in older universities.62

Despite evidence such as this of the existence of gender discrimination in the sectoras a whole, Cownie’s research on law schools ‘. . . suggested that awareness of genderissues is not very deeply embedded into the culture of academic law’.63 Our researchsuggests that differences in the awards of sabbaticals to men and women, althoughexisting, are not dramatic and this may encourage the sort of indifference or compla-cency Cownie revealed. She adds that ‘. . . most academic lawyers have to be specif-ically directing their attention to the subject before they readily identify gender asproblematic’.64 Similarly, there was no indication in the responses to our survey thatlaw school management took explicit account that the operation of a sabbatical policyafforded an opportunity to address gender issues.

The management of sabbaticals

Collier is one of a number of scholars who has illustrated how recent develop-ments have led to a new authoritarian management approach which, while

59. A Devos ‘Women, research and the politics of professional development’ (2004) 29Studies in Higher Education 591 at 600.60. Above n 58, at 354. She noted that ‘The number and proportion of female academicsincreases annually. In 2000, 36% of academics were women. How those women’s time isallocated within their institutions is under-researched. There is some evidence to support thetheory that women carry the administrative burden in departments, and have less time thantheir male colleagues for the research that can so often play a major part in their promotionprospects, but it is largely anecdotal’.61. Gender and Research Activity in the 2001 Research Assessment Exercise (London, Asso-ciation of University Teachers: 2004).62. Ibid, p 4. See also D Knights and W Richards ‘Sex discrimination in UK academia’(2003) 10 Gender, Work and Organisation 154.63. Cownie, above n 1, p 91.64. Ibid.



formally proclaiming equality, in practice undermines equilibrium in law schools.He describes:

‘. . . the new managerial style within universities as culturally masculinist innature; aggressive, top down, resistant to dialogue and exchange and lacking inempathy as to the human costs of the changes which have been (and are being)instituted in many institutions (not least, as in a growing number of cases in theUnited Kingdom, in the administering of redundancies).’65

If what Collier and others call the masculinist management in law schools exists, itwould be expected that there would be a rather rigid approach to the operation ofsabbatical policies. To investigate if this was so, we inquired under what conditionssabbatical requests were refused in the 3 years covered by the survey. It appeared thatsuch refusals were not common. Further research is needed to see if this is becausestaff only make applications on the basis of prior encouragement from the head ofschool. Where reasons for refusals were given they suggest that lack of potentialoutput may prompt a refusal, although the quality of the applications was also setalongside the likely impact on the overall work of the law school.

In one pre-1992 university the respondent wrote, ‘One refused. Insufficient pros-pect of published output’. Another commented when asked about refusals:

‘None to my knowledge. The Chair of the law school and its appointmentscommittee will vet applications before they go forward to the University Commit-tee as against teaching and other needs. A member of staff might be asked topostpone their leave if necessary. There is also a University rule that no more than20% of the staff of a department can be on leave in any one year.’

Another told us, ‘One – applicant applied too soon. We have an “every nine termspolicy” ’. One head of school responded ‘Two. Not fully planned; research plans notclearly identified’. Another wrote, ‘One. Department would not have been able todeliver one of its compulsory modules’. Unusually in one law school applicants hadto bid against one another and there five were refused. This respondent commented,‘Until this year we operated a competitive sabbatical system against criteria set. Thoserefused either a) did not match the criteria or b) were judged less worthy than thoseawarded’. A total of ten refusals have to be set against the total number of 144sabbaticals awarded over the 3 years in the pre-1992 university law schools whichresponded to this question.

In the post-1992 institutions we were given details of two refusals out of a totalnumber of 45 awarded by all such universities over the 3 years. One respondent statedthat one applicant had been turned down as a result of, ‘a very poor applicationsubmitted without necessary consultation or support’. A refusal in another institutionwas because the ‘. . . applicant had been given a sabbatical previously and had notproduced anything at all’. Thus, the picture which emerges is that, for the most part,those applications for sabbaticals which are made are overwhelmingly successfulsuggesting the existence here of a lighter management touch than some commentatorssuggest.

65. Collier, above n 3, at 22. See also Becher and Trowler, above n 4, p 13: ‘Academics areexpected to work longer, on a greater variety of tasks with fewer resources. There has in shortbeen an intensification and degradation of academic work’.



Evaluation by heads of schools

We asked respondents whether, in their view, the policy was working. In the pre-1992universities 46% (6/13) of respondents thought the policy was ‘working well’ or‘working very well’. For the post-1992 universities 50% (5/10) thought it was work-ing well or very well. A number of respondents generously took the trouble to addindividual comments on the practice of sabbaticals and this gave an added dimensionto the research. Their responses generally emphasised the importance of sabbaticalsfor the effective functioning of the university. As one Director of Research for a pre-1992 university put it, they are ‘Essential for our thinking time!’. Similarly, a headof a pre-1992 law school stressed, ‘Sabbaticals are essential and since I have been inoffice (from 2002) I have encouraged staff to apply provided they seek externalfunding (not essential to succeed but the boost to resources can be v important)’. Thehead of one of the tiny number of pre-1992 law schools where there was currentlyno practice of awarding sabbaticals commented, ‘Would very warmly welcome aUniversity initiative on this matter, but not aware of any in the offing’.

In some post-1992 universities, there was clearly a sense of being denied a valuableresource. As one head put, ‘Would be a good idea but the University cannot resourceresearch leave’. Another said, ‘At present we are unable to afford to offer sabbaticals.However the ability to do so is fundamental to any law school which promotessustained research, especially research of international quality’. In the same veinanother pointed out:

‘I think it is important to create space for major research projects. At presentall I can do is fiddle around with commitments or allow people with funding tobuy themselves out of teaching. [The university] is not semesterised which doesnot aid the planning of sabbaticals.’

A number of respondents however recognised the management difficulties posed bythe awarding of sabbaticals. One post-1992 head made a particularly critical commentwhich underlines again our finding that sabbatical programmes are in practice some-what lightly managed:

‘The problem with allocating sabbaticals to research staff is that there is nocontrol over what they actually produce during their absence. In my experiencewhilst work was produced it was not of a sufficiently high quality to benefit theFaculty. Given the cost (approx 100K with on-costs) I made a bad (but generous!)decision.’

It thus appears that there are limited potential sanctions for a failure to produceadequate work during a sabbatical. The relationship in this sense is one of trustbetween academic and manager and this emphasises the importance of the profes-sional integrity of the academic. Another head of a pre-1992 law school indicated theconsequential impact on the school as a whole of granting sabbaticals at an inappro-priate time, referring to ‘Bunching of sabbaticals due to start date of colleagues putshuge strain on colleagues in some years. Colleagues need to make more of matchedfunding to provide external support to enable extended leave’. This comment alsoindicates management regret at what might appear to have been too ready a grant ofsabbatical leave.

The acting head of a pre-1992 law school gave a particularly reflective comment,acknowledging that ‘. . . the sabbatical system works very well from the point of viewof staff taking sabbaticals as a matter of their career development’. However:



‘From the narrower perspective of the Department and its interest in researchassessment, I think that the answer would be that the sabbatical system is aqualified success, simply because in recent years some staff have left after takingsabbaticals and the benefit in terms of research output has then partly or evenwholly gone elsewhere. It is difficult to resolve this particular issue, since asabbatical system seems to very much presuppose staff retention.’

A head of a post-1992 university made the point that the provision of sabbaticals hasto be seen as part of the overall work programme of the law school. He wrote,‘Analysis of sabbatical schemes needs to be made in the context of the workloadmodel in which it operates and what other support is provided for research and staffdevelopment by means of other allowances etc’.

Such observations support the point made by Henkel that research success isincreasingly viewed by management not just as a matter of individual ambition butas integrally tied up with the future of academic departments and even the prospectsfor the university as a whole.66 However, the criticism by the head of school referredto above indicates that, although departmental heads may express regret at what maybe seen as the lack of loyalty to an institution, there appear to be no mechanisms inplace to enforce this. It does not appear that it is usual to include a contractualobligation on the academic to remain with the institution for a period after returningfrom a sabbatical. Again this suggests that the managerialism is not as intensive assome commentators suggest. The relative lightness of the management touch in thisarea is all the more notable when it is recalled that sabbaticals must have significantbudgetary implications for universities. Of the 117 sabbaticals awarded in our respon-dent pre-1992 universities who answered the question on funding, only seven (6%)were financed wholly or partly by an external grant. In the new universities, of thetotal of 45 awards just four (9%) were funded externally. (Three of these were fromone institution and one of these sabbaticals was for 1 month.)

The RAE, sabbaticals and the academic work load

Our research results suggest that the overwhelming expectation is that sabbaticalswill produce research outputs, primarily of course work to be submitted in the RAE.67

The overall picture suggests that the bald division between old and new universitiesis misleading and that some new universities are closer to older universities than toother former polytechnics.68 However, this does not mean that subtler divisions maynot grow. It is clear that sabbaticals are expected to produce research which will bepotentially highly rated and that the RAE exerts a powerful influence. A number ofwriters have stressed how powerful the RAE is in determining academic identitiesand, albeit indirectly, it may undermine gender equality. Cownie again here stresses

66. M Henkel Academic Identities and Policy Change in Higher Education (London: JessicaKingsley Publishers, 2000) p 135.67. A Talib ‘The continuing behavioural modification of academics since the 1992 ResearchAssessment Exercise’ (2001) 33 Higher Education Review 30.68. See F Cownie ‘Two jobs, two lives and a funeral: legal academics and work-life balance’(2004) 5 WJCL I. Cownie points out that all the respondents in the old universities and twothirds of the respondents in the new universities said they carried out research. Cownie reportedthat respondents were pretty evenly split between those who thought the RAE had beneficialeffects and those who saw it in negative terms.



the delicate nature of difference. She points out that, although ‘The RAE wouldappear to be an inherently gender-neutral process, to which all research-active aca-demics, male and female are subjected, this neutrality is deceptive since it mayinherently be structured so as to foster divisions’.69 For Morley also the RAE ‘. . .creates interpersonal tensions, competitions and hierarchies and reinforces individu-alism rather than collaborative projects’.70

It could thus be said that the concentration on RAE outputs has meant that asabbatical award has increased the pressure of academic work.71 One often notedoutcome of the new energetic management style appears to be an increase in stressand work loads. Many academics joined universities for the autonomy and controlover their working week such work gives. However, in a study on occupational stressof academics from a range of disciplines conducted for the Association of UniversityTeachers, Kinman showed that ‘70 per cent of respondents either agreed or stronglyagreed with the statement, “I find my job stressful” and 81% agreed or strongly agreedwith the statement, “I feel under more pressure to increase my research or consultancyactivity” ’.72 As Cownie points out specifically in relation to legal academics, ‘tradi-tional, voluntary research activity is very different from a centrally-organised bureau-cratic system of review’.73 Commenting on the factors affecting university law schoolswith ambitions to be research led, Collier states that:

‘[I]t is now beyond question that the performance and research productivity ofall legal academic staff has become crucial to the status, financial health and,perhaps, the very future of the law school itself. In the case of law, like otherdisciplines, this has been a process in which the “performativity” of academics,determined via a calibration of quantitative, observable (short to medium-term)output with the assessment of research productivity, has become of increasingly[sic] importance in recruitment and promotion practices and in institutional deter-minations of career “success” or “failure”.’74

He sees the corporate world as transforming the perception of what it means to be asuccessful academic, now redefined as a ‘new knowledge worker’ who operates in acompetitive environment, not only in obvious areas such as the distribution ofresearch funding but also in relation to ‘the very space and time in which it might bepossible to produce research in the first place’. Collier raises the question, ‘If oneindividual is regularly “bought out”, who is left to “take up the slack” (in meetingteaching demands, dealing with pastoral issues and so on)?”75 The answer seems tobe women academics.76

69. Cownie, above n 1, p 138.70. L Morley Quality and Power in Higher Education (Buckingham: SRHE, Open UniversityPress, 2003) p 23. Henkel, above n 66, p 106, refers to the RAE as ‘a vehicle of professionaland personal humiliation’.71. See S Court ‘The use of time by academic and related staff ‘(1996) 50(October) HigherEducation Quarterly 237.72. G.Kinman Pressure Points – A Survey into the Causes and Consequences of OccupationalStress in UK Academic and Related Staff (London: Association of University Teachers, 1998)paras 9.3 and 9.4.3.73. Cownie above n 1, p 141.74. Collier, above n 3, p 15.75. Ibid, p 19.76. See also Cownie, above n 1, pp 148–150.



Sabbaticals as a time for reflection rather than production?

Hardly surprisingly, no heads of school in our survey, hard-pressed themselves byquality audits, questioned the proposition that sabbaticals should have identifiableoutputs. On the contrary, a number of them deplored any failure of the academic toproduce a tangible result, namely a publication. At the same time, no mention wasmade of any sanctions for failure or of penalties for moving institutions on returnfrom a sabbatical. Occasionally, however, a plea for a more radical stance surfacesin the literature. One American academic, George Douglas, regrets that, ‘Professorsgranted sabbaticals must prove that they have been “active”, “busy” and“productive” ’. He continued, ‘The university is like a factory and must ceaselesslyturn things out – completed research projects, publications – much as other factoriesturn out ingots or automobile parts’. Douglas proposed an alternative approach:

‘But why can we not point out that the original intent of the “sabbatical” is aworthy one? What is wrong with looking out to sea, or even up at the ceiling,recharging one’s batteries, or perhaps reading different kinds of books – booksthat might have nothing at all to do with one’s speciality? Isn’t it important for usto stand off from our work a bit, to look at what we have been doing from adifferent angle, perhaps even leave our speciality altogether? In short, what isreally wrong with improving oneself, as opposed to turning things out on theproduction line?’77

Douglas contrasted the approach taken by academic administrators in the USA to thatin Europe.78 Drawing on the early twentieth century essay on Oxford by the Canadianacademic and humorist, Stephen Leacock, he commented:

’The ideal of learning that had developed in European universities since theMiddle Ages was one of character and intellect combined. The genius and author-ity of the scholar were in the person, not just in his work. The scholar was admiredfor such characteristics as eccentric individualism and charm, not just for his placeon the production line. Often this individualism required wild flights of the imag-ination rather than disciplined performance, but in the end, it might actually resultin more-disciplined performance.’79

Douglas of course paints what is now an unrecognisably rosy and impossibly nostal-gic picture even of contemporary Oxford academic life but there is an alluring aspectto his argument that there is something to learn from the older tradition of sabbaticals:

‘It is true that the Oxford-style of higher education will never take hold in theresults-oriented American university. But that older style has something to teachus: There is nothing wrong with resting, nothing wrong with a desultory andleisurely form of learning. Very often it may produce the most valuable insights,

77. G Douglas ‘Sabbaticals in the age of productivity’ The Chronicle of Higher Education13 October 1995 at B3.78. On the position in European universities see Y Enders and U Teichler ‘A victim of theirown success? Employment and working conditions of academic staff in comparative perspec-tive’ (1997) 84 Higher Education, 347. The authors draw on a European-wide survey coveringGermany, England, the Netherlands and Sweden.79. Douglas, above n 77, at B3. Stephen Leacock (1869–1944) taught economics at McGillUniversity. Douglas quotes from his eulogistic essay ‘Oxford as I see it’, which was firstpublished in 1922.



because professors have had the time and freedom to let their minds range widely,to think broadly, to open themselves to unexpected juxtapositions of informationand perspectives.’80

What appears to have occurred, however, is that far from American universitiesadopting what Douglas described as the Oxford approach, English universities havebecome more like American ones with their pre-occupation on performance targets.(Ironically, as university sabbaticals are becoming more associated with achievingperformance indicators, the value of the more liberal approach to ‘time out’ advocatedby Douglas is being adopted by private employers.)81 In relation to sabbaticals, anemphasis on performativity is certainly endemic. Cownie, commenting on the workof Collier, states that ‘Work which cannot be measured in terms of “outputs” (suchas counselling students) becomes formally invisible’.82 Similarly Henkel indicateshow the redefinition of academic work might lead to loss of control by the individualacademic.83

It seems therefore that the very concept that sabbatical leave research time mustproduce an output impacts on the understanding of prevailing theories of knowledgewhere truth is replaced by exchange value. In this connection, Lyotard commentedon scientific research but the point has general implications:

’The production of proof, which is in principle only part of an argumentationprocess designed to win agreement from the addressees of scientific messages,thus falls under the control of another language game in which the goal is no longertruth, but performativity – that is the best possible input/output equation.’84

This survey suggests that law school managements are impelled to adopt such anarrowly focused view of the way new knowledge can be developed and that theyapply this in sabbatical policies. Sabbaticals in law schools are now overwhelminglya mechanism for improving research output. The quantitative approach stresses outputrather than individual development, but this does not appear to be accompanied bythe implementation of measures to assess the intrinsic value of outcomes or to enforcemore inclusive goals. Those working in higher education do not appear to haveassessed in any meaningful way the actual benefits achieved, or the best way ofachieving them, or if any other objectives might be appropriate. The effect is that the

80. Ibid.81. S Deeble ‘How to get away with getting away’ The Guardian 21 June 2003. However,it might be considered that private employers are not overgenerous in relation to sabbaticals.British Airways employees can volunteer to take unpaid leave for 1–15 months. John Lewisoffers partners 6 months fully paid sabbatical after 25 years’ service.82. Cownie, above n 1, p 45.83. Henkel, above n 66, p 205. She reported: ‘The overall evidence of our interviews isambiguous. Academic values had remained robust. Academic narratives about their researchagendas reflected underlying assumptions that their disciplines and disciplinary cultures con-tinued to be the source of their academic identities. In one sense they continued to constitutethe ‘normative space’ in which academics lived and worked. Things were, however changingas academics confronted new diamonds and competing cultures. They could no longer assumethat they had the authority and power to regulate or maintain that space. They were increasinglyadopting strategies to enable them nevertheless to conserve it’.84. J-E Lyotard [G Bennington and B Massumi (transl)] The Postmodern Condition: A Reporton Knowledge (Minnesota: University of Minnesota Press, 1984) p 46.



sabbatical policies contain a number of contradictions. They are predominantly exclu-sive awards in that they are focused overwhelmingly on research outcomes and ignoreother aspects of academic practice; they are not available in all universities andarguably are more likely to be awarded to men than women. However, in operationalterms there seem to be minimal mechanisms to enforce standards on individuals. Onealternative approach could be a recognition that sabbaticals have a wider and lesstangible importance for broadening the intellectual life of university departments thanis measurable in research output. In this way, sabbaticals would be available morewidely across the sector and encompass all aspects of academic practice, rather thanjust forming part of the departmental research plan. Some lessons could be learntfrom the USA where it does appear that there is a greater range of types of sabbatical,not surprising in the light of the range of higher education institutions, and wherethere is an increasing body of research material on the subject. Zahorski, for example,states that the ‘function of sabbatical leave is to stimulate a faculty member’s profes-sional, personal and creative growth’.85 Others, however, doubt if the reality is quitethe creative space for intellectual growth which Douglas advocated.86

CONCLUSION

Our research indicates that university sabbaticals play a key part in what Cownienoted was the ‘constant pressure’ to publish.87 Their link with teaching in the olduniversities particularly, but to some extent across the sector as a whole, is not clearlyenunciated and it does not appear that a specific influence on pedagogy is an expectedoutcome. Rather, the pre-occupation with research entrenches the message that teach-ing, and thus by implication staff more closely involved in teaching, are marginal.But as Healey suggests in advocating a scholarly approach to teaching, ‘. . . a condi-tion of the award of a sabbatical could include the provision of a pedagogic impactstatement’.88

85. Zahorski, above n 16, p 8. He listed four purposes of such leave: ‘to provide opportunityfor scholarly enrichment, to improve teaching, to promote course and curriculum development,and to enhance artistic performance and creative growth’.86. M Miller and K Bai Impact of Sabbatical Leaves on Teaching: A Case Study of Post-Sabbatical Measures (2006), available at http://www.weleadinlearning.org/feb06mtm.htm.87. See Cownie, above n 1, pp 110–111. She quotes D Ryan ‘The Thatcher Government’sattack on higher education in historical perspective’ (1998) 227 New Left Review 3 at 31: ‘Thefocus on research is now obsessional, far beyond reasonable measure in the life of learning’.88. M Healy ‘Put scholarship into teaching’ The Times Higher Education Supplement 4February 2000. See also A Brew and D Boud ‘Teaching and research: establishing the vitallink with learning (1995) 29 Higher Education 261. These authors illustrate how research workduring sabbaticals could become, in effect, laboratory studies for understanding how these twoaspects of academic life are related. They argue (at 262) that ‘. . . if there is a link between[teaching and research] it operates through that which teaching and research have in common;both are concerned with the act of learning, though in different contexts’. A recent surveyconducted by the University and College Union (UCU) reported that 78.7% of responses fromacademics were in favour of an external funding regime which recognised and rewarded thedissemination of research through teaching: UCU The Future of Research Funding and Assess-ment: The ‘Voice’ of the Profession (London: UCU, 2006), available at http://www.ucu.org.uk/media/pdf/1/4/researchfundingfuture_1.pdf.

http://www.weleadinlearning.org/feb06mtm.htm

http://www.ucu.org.uk/



From the evidence of this survey sabbatical policies in law schools form an integralpart of higher education’s obsession with research which some commentators haveargued has a corrosive effect.89 Thus, the policies may convey a negative view ofteaching. As one American commentator points out:

‘. . . the most compelling reason to re-examine the practice of giving facultyreleased time may be what its traditional practice says about teaching. It helpspromote the belief that teaching and research/scholarship are incompatible. It tellsfaculty that research levels done during their grant of released time are notexpected once they have returned to their usual work loads. And, most unfortunateof all, rewarding faculty (as many released-time programs explicitly do) by givingthem time off from teaching seems to send a message that teaching is not anactivity highly valued by the administration.’90

Although the granting of sabbaticals is intimately bound up with research output,there has been little investigation to date as to whether the current practice is efficient.It is assumed rather than evidenced that additional time will be effectively utilisedoverwhelmingly by the academic conducting individual research. This emphasis onindividual output tends to underplay a more collegiate approach. Vick et al point outthat the individualist approach of the RAE which has impacted on sabbatical policiesfits ill with the tendencies of women in particular to take a more cooperative andcollaborative approach to problem solving, while it accommodates men who are morecompetitive.91 Their survey showed that ‘. . . women were more likely than men tobelieve that their department’s approaches to the RAE discouraged departmentalcohesiveness and teamwork, damaged inter-departmental relationships, and increasedstress’. They added:

‘It is not clear from the comments of respondents what lies behind this gendergap. It may be that the increased pressures to publish have been felt more keenlyby women because of the persistent imbalances between men and women inconnection with domestic obligations, including childcare.’92

The empirical evidence from this survey indicates some gender imbalance in theaward of sabbaticals but it is suggested that more complex factors are involved thanovert discrimination.93 It is arguable that the women who do succeed in researchappear to need to adopt values traditionally associated with men to do so. Devos,drawing on Foucault’s theory of governmentality, has argued that women’s subjec-tivities have restricted their success in academic research. She wrote, ‘The discourses

89. Some argue that the proposed metric system replacing peer review for the next RAE willincrease divisions in the sector. The Society of Legal Scholars has expressed its opposition ona number of grounds including the probability it would generate fierce competition for empir-ical research funding and researchers. It would also incentivise quantity over quality in termsof publication outputs.90. R Boice ‘Is released time an effective component of faculty development programs?’(1987) 26 Research in Higher Education 311 at 314.91. D Vick et al ‘The perceptions of academic lawyers concerning the effects of the UnitedKingdom’s Research Assessment Exercise’ (1998) 25 Journal of Law and Society 536 at 552.92. Ibid, at 554.93. See Collier, above n 3, p 28, ‘There is no reason to believe, in short, that the dominanceof men has shifted simply because a new intellectual terrain has evolved or because lip serviceis now paid to gender equity’.



of the good researcher reflect higher education’s framework of masculinist values,ideals and power relations which position women as outsiders’.94 She referred to the‘lack of access to, and discouragement from taking study leave (sabbaticals) evenwhen eligible’. In her institution there were difficulties in conducting research‘because staff [were] increasingly expected to do research in personal or “family”time – evenings, weekends and school holidays’.95

Thus questions of equality are raised by sabbatical provision, or lack of it. Thereis some inequality between the former polytechnics and older research-led universi-ties, although this is complex, with some research-active new university departmentsresembling older institutions in this area rather than other sister post-1992 universi-ties. More strikingly, there is a difference between provision for teaching as opposedto that for research. Of course this means differences between academics not justacademic practices. Teachers and researchers do operate it seems under differentregimes. Suggestions for change in academic practice are generally based on thepresumption that research is pre-eminently superior. As Elton puts it, ‘. . . the currentimprovements have been made largely in order to make teaching more like research,and little if anything has been done to make research more like teaching. We are stillat the beginning of a change which makes both into aspects of learning’.96 Thusarguably it is not just a case of awarding sabbaticals for teaching purposes, say forcurriculum development or for pedagogic research, but of reconceptualising thequestion of the organisation of staff time so that there is built in ab initio a connectionbetween all the areas of academic practice. Without such an imaginative revisiting ofacademic practice universities may not fulfil challenging demands placed upon themboth to produce knowledge and enable learning in an age of mass higher education.Elton gives a sharp warning: ‘I look for scholarship in teaching, in research andparticularly in the nexus of teaching and research to revive the coherence withoutwhich universities may die’.97

The evidence from this project is that academic research, as exemplified by sab-batical policies, is indeed portrayed very much as a self-interested and somewhatfractured enterprise and this exacerbates the current academic division of labourbetween teaching, administration and research, the latter accepted as superior. It isacknowledged that such an individualist approach has been traditionally integrallylinked to the notion of academic freedom in the sense of the autonomy of theacademic to organise his or her working life. Such an historically valued freedom isfacing demands, however, both from the new more controlling managerialism and thebureaucratic need for measurement and accountability. It is arguable also that thetraditional individualist notion of academic freedom is in any case no longer sustain-able in an age of new working practices and organisation along with the possibilityof a multi-faceted notion of professional identity and greater public involvement inhigher education. Nostalgia, as in dreaming of a prelapsarian Oxford, is out of place.Academic freedom has been traditionally seen very much in terms of the intellectualand professional interests of the contemplative academic. A period of uninterruptedresearch opportunity, a sabbatical, may be presented as one way of enhancing that

94. Devos, above n 59, at 597.95. Ibid, at 594.96. G Elton ‘Scholarship and the research and teaching nexus’ in R Barnett (ed) Reshapingthe University. New Relationships between Research, Scholarship and Teaching (Maidenhead:SRHE and Open University Press, 2005) p 100 at p 108.97. Ibid, at p 117.



freedom, albeit in a somewhat self-serving way. But an alternative construction ofthe work of the legal academic could emphasise a more inclusive, emancipatorynotion of scholarly endeavour, whereby research time affords not just an opportunityfor individual productivity but also for re-invigorating the intellectual life of thelearning community, including students, and the wider society.

One way to address the relative isolation in academic work, epitomised by thesabbatical, is proposed by Kogan, drawing on Boyer. He argues that the practice ofresearch, redefined as ‘disciplined inquiry’, can take several forms: research (as thediscovery and testing of new knowledge), research and development (R&D) (thesystematic application and testing of knowledge for use) and scholarship (the rework-ing and redefinition of existing knowledge and concepts). Kogan’s final category hecalls ‘other forms of knowledge’ which may be different forms of research anddevelopment ‘targeted on different purposes such as curriculum development’.98 Thefounding unifying principle of all of these would be: ‘Work undertaken within highereducation is demonstrable and testable by a wider audience than one’s own studentsand one’s own colleagues. It is based on and is tested by, its deference to logic,evidence and demonstrability’.99 This would involve ‘a great deal of intellectualactivity beyond the classic definitions of research’. It would be expected that alluniversity staff would engage in it, ‘Otherwise there is no difference from the workof further education or schools’.100 Without such a generalised approach to scholar-ship, it is arguable that the inequalities revealed in this survey will grow.

Walker regrets that ‘Academics in what has been described as the postmodernworld face dilemmas of fragmentation, consumerism, individualism, efficiency,regulation, the erosion of community and collegiality in the face of “newmanagerialism” ’. She observes that, ‘Of less concern have been issues of equality’.101

Walker paints an overly depressing picture, but as the above discussion has shown,the operation of sabbatical policies suggests that the actual impact of the new man-agerialism has not as yet brought about a regime of ultra efficiency. Rather it createsa climate whereby there is what Morley has called ‘an imperative to perform andconform’, which is internalised by ambitious academics.102 Morley continues, ‘Per-formativity is not fun, as in playfulness. It is not a way to find expression but torepress it’. The effect, she suggests, is to create uncertainty and precariousness.

The emphasis on output appears to encourage a cautious approach on the part ofthe law school management to the awarding of sabbaticals. They are granted to thosewho have already achieved or will be most likely to achieve. There seems to be littleconcept of the transformational possibilities of sabbaticals. There is some connectionhere with the unimaginative approach to operating equal opportunities policies inhigher education institutions. A recent study by Deem and Morley has shown thereis somewhat conservative attitude to acknowledging equality of opportunity despitethe plethora of statutory initiatives. The authors perceptively comment:

‘It should be remembered that implementing equality and diversity will alwaysnecessarily involve some degree of negating and countering some social groups’

98. Kogan, above n 7, at 15.99. Ibid, at 16.100. Ibid, at 17.101. M Walker Reconstructing Professionalism in University Teaching (Buckingham: SRHEand Open University, 2001) p 8.102. Morley, above n 70, p 72.



privileges that may be, in some cases, taken for granted as inalienable rights, partof what they see as the natural order of things. And that is precisely why the ethicaland moral case for equality and diversity needs to be explicitly argued, rather thanassumed to be self-evident.

Equality and diversity in the work place, in a HE work place in particular, needto be shown to be good, right and desirable, and, in the long term, in the interestof not only all members of the organisation, but also society at large.’103

In other words, removing inequalities is an ongoing struggle and not just a questionof a satisfactory statistical audit. It is too important to be left only to human resourcedepartments.

It is arguable that the current emphasis on research as a product has meant thatthe actual process by which legal academics can be enabled to conduct research hasnot been coherently examined or theorised. This very process, however, contributesin part to how academics define their professional identities.104 The complex natureof the formation of identity is examined by Valimaa. He writes:

‘It is very problematic indeed to explain the dynamics of academic communitieswithout taking into account the “environmental factors” like institutional and localtraditions as well as national cultures. Thus, I argue that it is both theoreticallyand empirically controversial to use disciplinary cultures as the only explanatoryfactor of academic behaviour.’105

Approving this approach, Cownie comments:

‘. . . in studying the culture of a specific discipline it is important to acknowl-edge the influence of the “micro” level of personal identity, of class and gender,of location in a particular type of institution and a particular type of departmentupon the professional lives of individual legal academics as well as the macro levelof national policies emanating both from government and elsewhere.’106

103. R Deem and L Morley Negotiating Equity in Higher Education Institutions (London:HEFCE, 2005) p 41, available at http://www.hefce.ac.uk/Pubs/rdreports/2005/rd10_05/. Theauthors also note (p 81) ‘Some of our most disturbing findings relate to the way in which thepressures of the audit culture and quality issues appear to over-ride concerns about equalities’.The present approach would appear to leave some staff marginalised. Large numbers ofacademic staff do not have the benefit of sabbaticals to conduct their research. Some studieshave shown that job satisfaction for academics is as much concerned with research autonomyas with pay. See also H Metcalf et al Recruitment and Retention of Academic Staff in HigherEducation DfES, Research Report RR 658 (2005), available at http://www.grad.ac.uk/downloads/documents/Reports/DfES%20recruitment%20and%20retention%20report%20Jul%202005.pdf.104. A Talib ‘The continuing behavioural modification of academics since the 1992 ResearchAssessment Exercise’ (2001) 33 Higher Education Review 30. He comments (at 45) ‘Thechallenge for policy makers is to recognise the importance of process measures and innovationsand learning strategies for genuine long term quality improvement in the delivery of value formoney services. Genuine improvement over the long term will only occur when policy makerspay attention to the way academics work and the attitudes and beliefs they hold while perform-ing this work . . . These unintended consequences of the RAE need to be continuously moni-tored and the RAE process fine-tuned where necessary’.105. J Valimaa ‘Culture and identity in higher education research’ (1998) 36 Higher Education19 at 126.106. Cownie, above n 1, p 2.

http://www.hefce.ac.uk/Pubs/rdreports/2005/rd10_05/

http://www.grad.ac.uk/



Multiple discourses

Our research suggests that there may be limits to the effect at the micro-level on thedaily working lives of academics of what has been identified as the new institutionalmanagerialism. In practice, the extent of bureaucratic power has to be set alongsidethe opportunity academics still have to influence the structure and content of theproduction and delivery of scholarship and teaching. This may mean in practice subtlesubversion of management objectives. This survey provides some support forTrowler’s observation that, ‘Universities provide the context for multiple discoursesand attempts to impose a dominant discourse are likely to result in failure’.107 Simi-larly, Bradney doubts whether universities have been transformed in the way Collierand others have depicted. Bradney observes, ‘. . . though there have been attempts tobureaucratise and corporatise the university, they have been resisted and can continueto be resisted. From this perspective Collier’s arguments are about what can happennot arguments about what must happen’.108

Perhaps what is required is that the very nature of the scholarly inquiry conductedduring a university sabbatical could be broadened. It is argued here that, rather thansimply resisting bureaucratisation, one possible way forward would be for legalacademics to address the need to devise new ways of working by encouraging inquiryand dialogue as well as public accountability.109 Sabbaticals, pioneered by universi-ties, afford scholars opportunities to develop innovative, possibly challenging or evensubversive, ideas. As Nixon et al point out, such privileges carry special responsibil-ities. They conclude with an observation which is of relevance to the discussion inthis paper, since it indicates how sabbaticals could be used to make a more roundedcontribution to the life of the law school and beyond:

‘What is needed is a new academic professionalism based upon a more gener-ous and expansive notion of academic freedom as freedom for others; the respon-sibility of academics to ensure that others have the responsibility to speak theirown minds, to learn in accordance with their own interests, and to enjoy a secureframework within which to learn.’110

Boyer for one reminded us that these ‘others’ should include students.111

107. P Trowler Academics Responding to Change; New Higher Education Frameworks andAcademic Culture (Buckingham: SRHE and Open University Press, 1998) p 151.108. A Bradney Conversations, Choices and Chances. The Liberal Law School in the Twenty-First Century (Oxford: Hart, 2003) p 201. See also Collier’s review of Bradney’s monograph,‘The liberal law school, the restructured university and the paradox of socio-legal studies’(2005) 68 MLR 475.109. For the public responsibilities of academics, see E Said Representations of the Intellec-tual: The 1993 Reith Lectures (London: Vintage, 1994). Said was a little scathing about theprofessoriate. He wrote (pp 70–71) ‘Today’s intellectual is most likely to be a closeted literatureprofessor, on a secure income and no interest in dealing with the world outside the classroom’.For a penetrating study of the ‘demise of the independent intellectual’, see U Huws Beggingand Bragging: The Self and the Commodification of Intellectual Activity Inaugural professoriallecture, London Metropolitan University (7 June 2006).110. J Nixon et al ‘What does it mean to be an academic? A colloquium’ (1998) 3 Teachingin Higher Education 277 at 278 (original emphasis).111. Boyer’s comments referred to the USA but they do have general significance. ‘We urge thata sabbatical leave policy be available at every institution, with the understanding that such leaveswill be competitively awarded and will be used in ways that will promote faculty growth andassume benefits to the institution and its students’: Boyer, quoted in Zahorski, above n 16, at 125.



In many ways the stance institutions take over sabbaticals encapsulates thedilemma facing higher education. As Morley controversially puts it:

‘In the Kantian tradition, the university has been a site of critique. The qual-ity movement in higher education has compromised and muted the possibilitiesfor critical engagement with the technologies used to assure quality. It demandscompliance and performativity and endless reproduction of norms . . . Quality isperceived as an instrument of containment, in opposition to critique andintellectual creativity . . . Paradoxically, the culture of excellence is producingmediocrity.’112

The university sabbatical is currently dominated conceptually by such a reification ofconcept of quality, for example in the measurement of research outputs.113 Our surveysuggests that the way sabbatical policies operate can entrench some subtle, butnonetheless real and possibly undesirable, differences in the academy. It is arguedthat there is consequently a danger of overshadowing the other more emancipatorytradition of the university sabbatical but one doubtless in need of contemporaryreappraisal.

112. Morley, above n 70, p 162.113. Arguably there is desire among academics for a re-assertion of public values in highereducation. See J Bone and I McNay Higher Education and Human Good (Bristol: TockingtonPress, 2006) for a powerful account of current academic staff unease about the increasingcommodification of higher education. McNay writes (p 33), ‘The heavy hand of the “system”and internal managerialism have subordinated the human element of the HE experience, andmay have contributed to lower standards as well as a loss of a sense of community’.

Documents

Perpetuating difference? Law school sabbaticals in the era of performativity