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Mary Smith, the newly elected President of the American Bar Association (ABA), hinted that efforts by law schools to safeguard “free speech” on their campuses might play a role in their accreditation status. The ABA has put forth new guidelines recommending that law schools establish policies promoting freedom of expression and addressing “disruptive conduct.” This development follows instances of student-led protests during conservative speaker events at Yale and Stanford law schools.
While the ABA’s authority to mandate school policies remains somewhat unclear, it houses the accrediting body for law schools and currently sets guidelines for various aspects of legal education, such as curriculum and student evaluations. Smith, who assumed her role on August 8, stated, “I don’t know what direction this proposal will [ultimately] take, but we are able to set those guidelines in a number of areas and then base law school accreditation on those guidelines.”
The ABA’s Council of the Section of Legal Education and Admissions to the Bar has introduced a proposal, outlined in a memo dated August 17, that would require law schools to establish freedom of expression policies. This proposal expands the focus on freedom of expression to encompass both students and teachers, a subject previously covered under the existing standard of academic freedom for professors. The proposal is currently open for public comment with no specified end date.
See also: ABA Advances Proposal for Free Speech in Law School
Should this proposal be adopted, it would necessitate that schools enact policies safeguarding the rights of faculty, staff, and students to voice ideas that might be deemed contentious or unpopular. The proposal also seeks to prohibit conduct that obstructs such speech. Additionally, it would forbid “disruptive conduct” that interferes with the normal functioning of law schools and restrict expression that constitutes a “genuine threat or harassment” or infringes upon confidentiality interests.
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The catalyst for this proposal was the series of protests at Yale and Stanford, triggered by events featuring individuals such as Kristen Waggoner of the Alliance Defending Freedom in March 2022 and Fifth Circuit Judge Stuart Kyle Duncan in April 2023. Subsequently, both institutions issued apologies, and an associate dean at Stanford Law resigned from their role in the aftermath of the protests.
The debates arising from these events highlight differing viewpoints. Some argue that protests constitute free speech, while conservative critics contend that these actions are hypocritical if they seek to suppress opposing opinions, potentially infringing upon others’ right to free expression.
Fifth Circuit Court Judge James Ho took a firm stance in response, expressing that he would no longer hire law clerks from Yale Law School due to the institution’s handling of the disruptions. Later, he extended this decision to include Stanford.
Smith, a member of the Cherokee Nation and the first female Native American to assume the ABA presidency, revealed that the ABA’s legal education arm has been diligently developing the proposal over the past year. With a background that includes roles in the Indian Health Service, the Civil Division at the United States Department of Justice, and the White House, Smith emphasized the increasing autonomy of higher education institutions in formulating their own policies even prior to the ABA’s involvement.
Smith underscored the significance of free speech as a cornerstone of American democracy, allowing for diverse opinions, nonviolent protest, and the exchange of ideas—a freedom deeply rooted in the nation’s history.
Mary Smith’s indication that free speech protection efforts could influence law school accreditation has sparked discussions within the legal education landscape. The ABA’s proposal, if adopted, would establish guidelines for safeguarding free expression and address the issue of disruptive conduct, potentially reshaping the dynamics of speech-related incidents on campuses.
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