Free speech and academic freedom standards will now be part of ABA accreditation process
Law schools will now be asked to explicitly protect free speech rights for faculty, students and staff as part of the ABA accreditation process. Though law school faculty have long enjoyed protections for academic freedom, this would be the first accreditation standard to address free speech for the entire community within law schools.
The ABA House of Delegates on Monday voted in favor of the creation of the law school standards regarding academic freedom and freedom of expression at its midyear meeting in Louisville, Kentucky.
Resolution 300 was brought by the ABA Section of Legal Education and Admissions to the Bar. It calls for the adoption of Standard 208, which requires law schools to “protect the rights of faculty, students and staff to communicate ideas that may be controversial or unpopular, including through robust debate, demonstrations or protests.” It does not provide specific policy language.
“Until now, the standards have dealt with this matter in an indirect fashion,” said Antonio Garcia-Padilla, the Section of Legal Education and Admissions to the Bar delegate to the House, who introduced the resolution.
“We believe the policy will be better served if expressed directly as a general principle, and that is what we tried to accomplish with Standard 208,” Garcia-Padilla added. “Standard 208, which we now introduce, rests on a general statement and establishes minimum requirements in this matter, allowing law schools the flexibility to adopt institution-specific policies that might serve them better.”
The proposal follows protests that disrupted conservative speakers at Stanford Law School and Yale Law School and continuing tensions on campuses since Hamas attacked Israel last fall. Standard 208, however, forbids disruptive activities that hinder free expression or impede law school activities.
Academic freedom and freedom of expression have been hot topics for the past few years. In August 2022, a proposed revision to Standard 405(b) that would have required a law school to “adopt, punish or adhere to” a policy related to academic freedom was part of a package of changes to Standard 206. However, it was withdrawn before consideration by the House that year.
Next, the Section of Legal Education and Admissions to the Bar’s Strategic Review Committee drafted Standard 208, following the incidents at Yale and Stanford. During Standard 208’s period of notice and comment, which launched in August, the proposal received 21 comments, prompting minor language tweaks to include guest lecturers and speakers, along with law libraries and their services. Speakers invited by student organizations and others outside of class time, however, would be covered by the freedom of expression section.
Specific terms, such as harassment, will be determined by each law school’s individual policy. Standard 405(b) requires law schools to have an “established and announced policy” about academic freedom.
Follow along with the ABA Journal’s coverage of the 2024 ABA Midyear Meeting here.
The council of the Section of Legal Education and Admissions to the Bar voted unanimously in November to send its proposal for Standard 208 to the House for consideration. Under ABA rules and procedures, the House can concur, reject or make recommended changes. But the council has the authority to move ahead with its change after two House reviews, regardless of how the policymaking body acts.
Meanwhile, the House will consider three other resolutions from the Section of Legal Education and Admissions to the Bar as part of the consent calendar:
• Resolution 301, which eliminates the minimum and maximum time frames to complete a JD degree and codifies a limited priority enrollment policy giving JD students priority enrollment over non-JD students in certain essential courses.
• Resolution 302, which nixes the requirement for law libraries to have a physical collection and specifies that the law library director’s law faculty appointment has security of position “reasonably similar” to tenure.
• Resolution 303, which aligns ABA standards with U.S. Department of Education guidance and regulations regarding additional locations, institutional mergers and distance education.