The Legal Academy Looks To Adopt New Free-Speech Standard in a Last-Ditch Effort To Revive American Law Schools

American law schools may soon get their first-ever comprehensive free speech protections as their left-leaning accrediting body, the American Bar Association, looks to save academia from itself.The ABA’s policy-making body, the House of Delegates, will vote next month on whether to codify a proposal that would require law schools to adopt protections for the free-speech rights of faculty, staff, and students. It would be the first policy of its kind to address free speech for students, faculty, and administrators beyond the context of tenure.What differentiates this proposal from prior institutional pledges to protect free speech is that it’s coming from a prestigious authorizing body, the ABA, which is also known for its left-of-center policy agenda. Law schools that do not comply with its rules risk losing their accreditation, depriving their students of the ability to take the bar exam and become lawyers. “Our society needs to relearn how to deliberate about the most controversial questions with civility and professionalism,” the chairman of the ABA’s Strategic Review Committee, Daniel Thies, tells the Sun. “Lawyers should be leaders in this effort, and so law students must be trained in how to handle viewpoints and speech with which they disagree. The proposal aims to ensure that law schools are carrying out this most basic educational task.”The existing standard asks law schools to have “an established and announced policy with respect to academic freedom and tenure,” but includes no implementation requirement. The new Standard 208, “Academic Freedom and Freedom of Expression,” would raise the pressure on public and private law schools to uphold their commitments and expand them to include freedom of expression in the form of written policies. “This is a great opportunity,” a senior program officer at the Foundation for Individual Rights and Expression, Mary Griffin, tells the Sun, “for schools to set forth clear, written policies so students and faculty feel comfortable expressing themselves on campus and are fully aware of the boundaries of freedom of speech as well.”Universities have faced public scrutiny in recent months for appearing to have double standards with respect to open discourse. While they have a reputation for silencing speech as they see fit, most students violating the code of conduct by, say, engaging in disruptive pro-Palestinian protests in campus buildings have faced no disciplinary actions, even as the number of civil rights complaints of antisemitism on campus reaches a record high.“The antisemitism discussion is a sideshow to a much bigger question which has been simmering for years now,” the director of open learning at American Jewish University, Mark Oppenheimer, who is also a veteran journalist, tells the Sun. “Are our universities places for robust free speech, even when it makes us uncomfortable, or are we places where we submit to monitoring by bureaucrats and administrators? There’s not much middle ground.”Critics worry that universities could find ways to override or ignore Standard 208. “Enforcement and implementation of any policy is always a concern from our perspective,” Ms. Griffin says. “We’ve seen even good policies abused and poorly written ones left unenforced.”Yet students, faculty, and the general public will have the right to hold law school leaders accountable if they fail to adhere to written requirements on free speech. “If there is a controversy on campus,” Ms. Griffin says, “free speech advocates must remind schools of the guarantees they made in official policy and call on them to uphold those promises, no matter how unpopular or inconvenient.”The ABA has been developing its new standard over the last year as free speech rights have struggled to survive in the legal academy. To name just a couple of the high-profile incidents of intolerance: In March 2023, Stanford Law School students disrupted the campus visit of a federal judge who was an appointee of President Trump. The university then issued an apology and mandated free-speech training. That came in the form of five pre-recorded online training videos, which law school students had more than six weeks to complete — or they could simply check off a box attesting they had watched them. The training was much less rigorous than the law school’s required modules on Title IX and alcohol issues, which ask students a series of questions to ensure they understand school policy.At Yale Law School the previous year, a group of students disrupted a campus discussion with an invited conservative speaker. Two federal judges subsequently said they would not hire clerks from Yale. The law school pledged to reaffirm its commitment to free speech, and its dean, Heather Gerken, told students, “This is an institution of higher learning, not a town square.”ABA’s new standard would prohibit such disruptive conduct from interfering with free expression, also known as the “heckler’s veto.” The proposal also wards against institutional maltreatment of students exercising their speech rights by providing for due process for those accused of violating the policy.FIRE, in its comment on Standard 208, urges the ABA to also invoke the University of Chicago’s oft-quoted free-speech policy, the Chicago Statement, as its gold standard. More than 100 institutions have adopted it in recent years while leading universities like Harvard have not. “It is not the proper role of the University,” the 2014 statement asserts, “to attempt to shield individuals from ideas and opinions they find unwelcome, disagreeable, or even deeply offensive.”In November, the ABA’s Council of the Section of Legal Education and Admissions to the Bar, which oversees law schools, unanimously supported Standard 208. Now it’s up to the House of Delegates on February 5 to give it the final seal of approval. Notably, it was endorsed by the dean of the UC Berkeley Law School, Erwin Chemerinsky, who told the ABA Journal in August, “It’s important for schools to clearly state that the disruption of speakers is not tolerated, and if students do that, they will face academic discipline.”

The Legal Academy Looks To Adopt New Free-Speech Standard in a Last-Ditch Effort To Revive American Law Schools

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