ABA Standard 208, Law Schools, and the First Amendment

New guidance makes explicit what should have been clear already: Standard 208 obligates law schools to embrace First Amendment principles.

Last February, the American Bar Association adopted a new accreditation standard on academic freedom and freedom of expression: Standard 208. Under this standard, all law schools are required to protect academic freedom and freedom of expression as a condition for their accreditation. This was a "step forward" for free speech and open inquiry at American law schools.

Standard 208 obligates law schools to "protect the rights of faculty, students, and staff to communicate ideas that may be controversial or unpopular, including through robust debate, demonstrations, or protests," among other things. The clear implication of the standard's language (and accompanying interpretations) was that law schools should be expected to provide speech protections consistent with the First Amendment. In other words, private law schools and public law schools would be expected to meet the same standard (with appropriate accommodation for those schools with religious or other credal commitments). Alas, some private universities resisted this interpretation.

A new guidance memo from the ABA further explicates the reasons for adopting the new standard and makes explicit that Standard 208 incorporates First Amendment principles.

On the Standard's purpose:

Standard 208 was created to strengthen academic freedom and freedom of expression protections, as Standard 405(b) required a law school only to have "an established and announced policy with respect to academic freedom" and did not specifically require that a law school adhere to its policy on academic freedom. The Council believes that the development of the law and effective legal education require free and robust inquiry, exposition, and exchange of ideas and states this conviction in Interpretation 208-6 where it also explains that "becoming an effective advocate or counselor requires learning how to conduct candid and civil discourse in respectful disagreement with others while advancing reasoned and evidence based arguments."

Part 208(c) of the standard notes that the law schools may adopt some restrictions on expression. As the guidance memo makes clear, the ABA understands this language to track the contours of existing First Amendment doctrine.

The Council recognizes that the Standards it has prescribed for academic freedom and freedom of expression may involve discretion and interpretation of unresolved areas of the law. Subsection (c) seeks to address certain of these areas and to confirm the law school's substantial discretion to regulate or restrict academic freedom or expression within them. As provided in Interpretation 208-5, Subsection (c) will be interpreted consistent with the First Amendment of the U.S. Constitution. In areas where First Amendment law is unclear or debatable, the Council will likely find any policy arguably consistent with First Amendment doctrine to be compliant, unless and until the law school's policy (or one substantially similar to it) has been found inconsistent with the First Amendment in a judicial proceeding following the exhaustion of any available appeals. To the extent that this occurs, the law school will be expected to change its policy to be consistent with the First Amendment. This approach gives schools the maximum flexibility to adopt and adhere to policies that they find appropriate, whether articulated in a general or more detailed manner, so long as they comply with applicable constitutional law.

As I have noted before, there are prudential reasons why private law schools should embrace First Amendment standards on speech and expression. The new guidance makes clear that they have an obligation to do so as well.