The American Bar Association (ABA) is on the verge of introducing a new requirement that could mandate law schools to adopt policies promoting free speech on their campuses. This potential change comes in the wake of a series of high-profile incidents at academic institutions where students disrupted controversial speakers.
The pivotal decision is being considered by the ABA’s Council of the Section of Legal Education and Admissions to the Bar. This council, responsible for overseeing the accreditation of law schools, is set to deliberate on a proposed rule that would mandate the implementation of “written policies that encourage and support the free expression of ideas.”
Under this proposed ABA regulation, individual law schools would be tasked with developing their own free speech policies. These policies, however, must adhere to certain standards. They are required to ensure the rights of faculty, staff, and students to engage in discourse involving controversial or unpopular ideas. Moreover, the policies are expected to safeguard the integrity of robust debates, demonstrations, and protests. Any activities that disrupt the expression of free speech or substantially interfere with the functioning of the law school would be explicitly prohibited.
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The proposed rule emphasizes the importance of cultivating the ability to engage in candid and civil discourse even when opinions diverge. It argues that concerns over maintaining civility and mutual respect should not be used as a justification for suppressing discussions around controversial, offensive, or disagreeable ideas.
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Although the ABA’s standards have traditionally covered academic freedom for faculty, this proposal marks a notable expansion. If approved, it would represent the first time that the ABA’s standards address the concept of free speech for the entire law school community. William Adams, the ABA’s managing director of accreditation and legal education, pointed out the significance of this potential shift.
Several prominent law schools across the United States have faced criticism over their handling of student protests related to conservative guest speakers. Stanford University, for instance, faced backlash after students disrupted a speech by 5th U.S. Circuit Judge Stuart Kyle Duncan at the campus Federalist Society chapter event. Following the incident, the law school introduced mandatory free speech training for its students.
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Yale Law School also encountered controversy when a group of students disrupted a campus discussion featuring a conservative speaker in March 2022. This incident led to repercussions, as two federal judges later announced their decision not to hire clerks from Yale due to concerns about the institution’s handling of free speech issues.
The proposed free speech rule provides room for law schools to restrict certain forms of expression. These restrictions include speech that violates the law, defamatory statements, genuine threats or harassment, and speech that unjustifiably invades privacy or confidentiality. Also, law schools would be permitted to “reasonably” regulate the timing and manner in which expression occurs.
The impending decision on the proposed rule is scheduled for a vote by the council. The outcome of this vote will determine whether the rule will be released for public notice and comment. It is anticipated that the proposed rule will attract substantial feedback, and there is a possibility that further revisions will be made before its finalization.
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