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The Strategic Review Committee of the ABA’s Section of Legal Education and Admissions to the Bar has unveiled a new accreditation standard that addresses academic freedom policies and freedom of expression in response to recent campus speech controversies and requests for investigations. The proposed standard comes after a U.S. House of Representatives committee urged an inquiry into a Stanford Law School incident. The initiative reflects the increasing need for clearer guidelines on academic freedom and expression in educational institutions.
According to an August 2 memo, the proposed standard recommends an expansion of the existing Standard 405(b), which requires law schools to establish and communicate academic freedom policies. The memo suggests the incorporation of language explicitly extending these policies to both full- and part-time faculty members. It further advocates for the inclusion of mechanisms that offer due process for individuals alleging violations of their academic freedom and condemns disruptive behavior that obstructs free expression.
While the memo does not delve into the specifics of the Stanford Law School speech incident, it cites a similar event in March 2023 involving Judge Stuart Kyle Duncan of the 5th U.S. Circuit Court of Appeals. During a campus Federalist Society event, Judge Duncan faced heckling from the audience due to his controversial views on transgender individuals. The memo does not attribute the proposal for the new standard to the House Committee’s request but rather presents it as a necessary step to address growing concerns.
See also: Proposed Free Speech Rule for Law Schools Under Consideration by ABA
Legal professionals have weighed in on the proposed changes. Lawyers interviewed by the ABA Journal noted that the Stanford incident primarily pertains to free speech rather than academic freedom. They contend that more detailed guidance is essential for both concepts and support the idea of a comprehensive accreditation standard. The proposed standard’s emphasis on condemning disruptive behavior that impedes the functioning of law schools is seen as a positive step to maintain a conducive learning environment.
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Erwin Chemerinsky, Dean of the University of California at Berkeley School of Law, acknowledges that protests and expressions outside or inside a building can be protected speech as long as they do not disrupt the speaker’s message or the audience’s ability to hear and see. He underscores the importance of schools explicitly stating their intolerance for disruptions and enforcing academic discipline against students who engage in such behavior.
Brian Gallini, Dean of the Willamette University College of Law, suggests that addressing academic freedom in conjunction with learning assessments and objectives in accreditation standards might be beneficial. He recognizes the challenge of striking a balance between robust debate in learning environments and academic freedom while maintaining the effectiveness of classroom interactions.
The proposed revision also delves into the permissible limitations on expression. It states that law schools can restrict expression that violates the law, defames individuals, or constitutes a legitimate threat or harassment. However, the boundary between academic freedom and harassment remains nuanced and subject to interpretation.
Legal scholars and educators alike have welcomed the introduction of an ABA accreditation standard that explicitly addresses academic freedom and freedom of expression. Catherine Ross, a professor emerita at George Washington University Law School, highlights the importance of safeguarding faculty from state actions that might curtail academic freedom. She points to state laws like Florida’s 2022 legislation that seeks to restrict certain teachings in public schools as a prime example of the need for comprehensive protection.
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