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In a recent development, the American Bar Association (ABA) has proposed a proposal that requires law schools to adopt robust free speech policies. This proposal has garnered a largely positive response within the legal academic community, signaling a potential shift in the way law schools approach the protection of free speech.
Positive Reception with Room for Enhancement
Following a one-month public comment period, the ABA received 19 comments regarding a potential alteration to its law school accreditation standards. The proposed change would mandate that law schools establish written free-speech policies to facilitate the exchange of ideas while prohibiting disruptive activities on their campuses.
Almost all commenters supported adding a free speech rule within the accreditation standards. However, many suggested that the ABA should consider strengthening the proposal to offer more comprehensive protections or making specific adjustments.
Student Coalition Voices Concerns
One notable voice in this discussion comes from a coalition of student leaders at the City University of New York School of Law. They called on the ABA to ensure students can protest peacefully without causing disruptions. They also requested that the new standard protect students from harmful or discriminatory speech and harassment.
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The “Gold Standard” Advocates
The Foundation for Individual Rights and Expression, an organization known for assisting law school faculty members facing administrative reprimand due to their actions, proposed that the ABA encourage all law schools to adopt the Chicago Statement. This statement, introduced by the University of Chicago in 2015, is often called the “gold standard” for institutional policies on freedom of expression. It emphasizes the importance of allowing speech criticism while discouraging speech obstruction.
Differing Perspectives from Puerto Rico
University of Puerto Rico Law School administrators raised concerns about the ABA’s involvement in regulating free speech policies. They argued that matters related to free speech are highly contextual and suggested that the proposed standard might limit law schools’ ability to address complex questions of discourse and civility.
Key Elements of the ABA Proposal
Under the ABA’s proposal, law schools would be responsible for developing their free speech policies. These policies must prioritize protecting the rights of faculty, staff, and students to express controversial or unpopular ideas. Simultaneously, they should safeguard robust debate, demonstrations, and protests while prohibiting disruptive activities that impede free expression or significantly interfere with the functions and activities of the law school.
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Contextual Background and Future Prospects
This proposal comes after high-profile free speech incidents at institutions such as Stanford Law School and Yale Law School, where students disrupted controversial speakers, sparking criticism of the school’s handling of these situations.
However, the American Association of University Professors has highlighted that law schools’ primary threat to free speech stems from lawmakers seeking to restrict faculty from teaching about racial injustice and banning critical race theory from classrooms. Consequently, this organization has urged the ABA to reconsider stipulating that the proposed free speech policies “are not in violation of the law.”
The ABA’s Council of the Section of Legal Education and Admissions to the Bar is scheduled to deliberate on the free speech proposal during its meeting on November 17 in Dallas. This meeting could mark a significant turning point in how law schools approach and protect the fundamental right to free speech on their campuses.
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