ABA Adopts New Academic Freedom / Freedom of Expression Requirement for Law School Accreditation

This apparently just happened; here's the full American Bar Association standard (and see this ABA Journal article):

Standard 208: Academic Freedom and Freedom of Expression

[a] A law school shall adopt, publish, and adhere to written policies that protect academic freedom. A law school's academic freedom policies shall:

[1]​ Apply to all full and part-time faculty, as well as to all others teaching in law school courses;

[2] Apply to conducting research, publishing scholarship, engaging in law school governance, participating in law related public service activities, curating library collections and providing information services, and exercising teaching responsibilities, including those related to client representation in clinical programs; and

[3] Afford due process, such as notice, hearing, and appeal rights, to assess any claim of a violation of the academic freedom policies.

[b]​ A law school shall adopt, publish, and adhere to written policies that encourage and support the free expression of ideas. A law school's free expression policies must:

[1]​ Protect the rights of faculty, students, and staff to communicate ideas that may be controversial or unpopular, including through robust debate, demonstrations, or protests; and

[2]​ Proscribe disruptive conduct that hinders free expression by preventing or substantially interfering with the carrying out of law school functions or approved activities, such as classes, meetings, library services, interviews, ceremonies, and public events;

[c] Consistent with this Standard, a law school may:

[1] ​Restrict expression that violates the law, that falsely defames a specific individual, that constitutes a genuine threat or harassment, or that unjustifiably invades substantial privacy or confidentiality interests.

[2] Reasonably regulate the time, place, and manner of expression.

[3] Adopt policies on academic freedom and freedom of expression that reflect the law school's mission, including a religious mission, to the extent such policies are protected by the First Amendment of the United States Constitution and are clearly disclosed in writing to all faculty, students, and staff prior to their affiliation with the law school.

Interpretation 208-1[:] Standard 208 applies to both public and private law schools.

Interpretation 208-2[:] A law school may, when appropriate, differentiate among students, faculty, and staff in its policies on freedom of expression.

Interpretation 208-3[:] Standard 208(a) does not preclude a law school from identifying the courses that will be taught, requiring courses to cover particular content, or requiring faculty, students, or staff to clarify in appropriate circumstances that their views are not statements by or on behalf of the law school.

Interpretation 208-4[:] This Standard does not prevent a law school from applying disciplinary action for conduct identified in Standard 208(b)(2).

Interpretation 208-5[:] Subsection (c) recognizes that law schools may restrict speech consistent with the First Amendment of the United States Constitution.

Interpretation 208-6[:] Effective legal education and the development of the law require the free, robust, and uninhibited sharing of ideas reflecting a wide range of viewpoints. 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. Concerns about civility and mutual respect, however, do not justify barring discussion of ideas because they are controversial or even offensive or disagreeable to some.

[From the accompanying Report:] … In the background, but not influencing the creation of Standard 208, were the widely publicized disruption of a speech at Stanford Law School in March 2023 and a letter that month to the Council from the U.S. House Committee on Education and the Workforce asking the Council to investigate the Stanford Law School's compliance with Standard 405(b)….

Comments

[Dr. Ed 2]

Someone in DC fired a shot across the ABA's bow. Wonder who.

The ABA can see the writing on the wall -- and that they could lose their monopoly in the process.

The big question I have is who is going to enforce these rules???

[Drewski]

"The big question I have is who is going to enforce these rules???"

You frequently claim to be a teacher but aren't familiar with accreditation. That sounds about right.

[Dr. Ed 2]

But who is going to make the accreditor enforce it?

You're missing my whole point -- I don't think the ABA wants this. For reasons I state below, I don't think they even actually wrote it because they are lawyers and hence view the First Amendment legally rather than conceptually.

And they may force law schools to also "talk the talk" but we already know that having talk like this doesn't mean that the institution is going to "walk the walk" -- and if the accreditor isn't going to show up with cattle prods, who will?

[The Margrave of Azilia]

Why doesn’t the ABA stop biting the ankles of our top law schools? Do they have the courage to denounce Biola?

[Trollificus]

Rev. Kirkland lite, sounds like.

[Davy C]

... I don't like it. Apparently many states require a degree from an accredited school in order to take the bar exam. So, what, we're going to say "you can't take the exam because your law school didn't have enough academic freedom and/or freedom of expression"?

[Dr. Ed 2]

I believe that ALL states now do -- and yes, that is what it means.
But the flip side is that the states could ignore ABA accreditation, as Massachusetts already does with (new) state-licensed but unaccredited law schools.

OR ED could qualify other entities to accredit law schools and that would put the ABA in an impossible position if ED wished to push it because ED holds the financial aid purse strings.

I say again, someone fired a shot across the bow of the ABA and I honestly don't know who. But there is no reason they couldn't have another hearing like they did with Claudine Gay.

[Bwaaah]

I think they're providing counter-balancing context to their Standard 206 re: "Diversity and Inclusion." Is it OK to argue in law school that all race-based policies, including Standard 206, should be eliminated? Could that argument be considered to be "anti-inclusive"?

Much of that anti-race-conscious-policy stuff has been treated as verboten in recent years. I think this Standard is intended to open up the dialog, and to be clear that faculty, students and staff are not entitled to be free from arguments that offend them. It even goes further as to suggest that institutions have a responsibility to quash the heckler's veto.

Standard 208 negates some of the potentially negative interpretations of Standard 206.

[Dr. Ed 2]

Or they are being forced into this BECAUSE OF Standard 206.

In such case, they have no intention of enforcing this beyond just words.

I hope I am wrong, but never forget that the Soviet Constitution had far more protections than the US Constitution, it just was never enforced...

[Drewski]

If you complete law school and later find out it wasn't accredited, that's sort of on you. Someone who did that wouldn't pass the bar anyway, because they'd show up at the wrong place and get drunk.

[Dr. Ed 2]

People familiar with the story of how UMass Dartmouth came to acquire a School of Law know the story -- and those who don't can ask someone who does. Just don't confuse it with Law Schools Bravo and Charlie -- when the head of one burnt down the law library of the other.

But before Law School Alpha was "donated" to UMass Dartmouth (think "Fall River"), I was considering going the CAGS/JD route rather than the CAGS/EdD route that I wound up remaining on. UM had a Law Fair and I attended, and while I knew that Law School Alpha wasn't accredited, they never told me that, nor was it in their literature.

They told me that they were "fully licensed" and that I "could take the Massachusetts Bar upon graduating" -- both of which were technically true, but how many undergrads would have known the difference?

Answer right now -- honestly -- who accredited your undergraduate college or university? And did you know that when you were graduating as a senior? (I didn't...)

When you go into the hospital, do you ask to see the medical license of everyone present? Or do you make the rational presumption that because they are there, they *must be* fully licensed....

When you fill a prescription, do you first call the Board of Pharmacy to ensure that it is legitimate, or do you trust the druggist to say something if it isn't? And how is that different from a student presuming that ED would say something if the law school wasn't fully accredited?

I asked "are you accredited" and the response was "we are fully licensed" and it was done so smoothly that I had to go check to make sure they still weren't.

[SimonP]

Agreed. This seems outside the ABA's proper scope of authority. A private law school ought to be able to define certain perspectives as off-limits, and religious schools shouldn't have special rights in that respect.

I don't know to what extent ABA accreditation policies are subject to the First Amendment. But this seems like it puts constraints on the freedom of expression of private law schools and discriminates against secular law schools, by creating an exception from their rule for religious law schools that doesn't seem to have anything to do with the underlying rationale (if any) for the rule.

Like - if my law school can't be accredited because it doesn't permit speakers who oppose LGBT equality to give talks on campus, why should Notre Dame be accredited when they don't permit speakers who advocate for LGBT equality to give talks on campus?

[Dr. Ed 2]

Simon, you need to go one level deeper than that, and look at the issue raised by the APA in the Jennifer Keeton case: https://centerforacademicfreedom.org/cases/keeton-v-anderson-wiley/

The ABA (and APA) are designated gatekeepers on the issuance of state licenses and as such, are they de-facto agents of the state? A related question (often co-mingled by persons unfamiliar with actual First Amendment law) is if they are going to enforce guidelines on behalf of the state, should that not also include all of the underlying principles of the state.

What I really think happened here is either someone scared the daylights out of the ABA or there was enough little stuff happening that the ABA saw the writing on the wall -- either way, the ABA came to fear that it would lose its monopoly on accreditation unless it defends free speech.

Do not forget that Betsy DeVos was seriously talking alternative accreditors for faith-based IHEs until the Wuhan Flu shut everything down, and while she wasn't saying it, I was thinking that this might extend to the affiliated law schools, e.g. Notre Dame Law. (Which now has a SCOTUS alumnus.)

[David Nieporent]

The ABA … are designated gatekeepers on the issuance of state licenses

No, they're not. Yet another thing you get wrong.

[Dr. Ed 2]

Bullshyte.

Graduating from an ABA accredited law school is a prerequisite -- they are a gatekeeper.

[Sarcastr0]

Not in every state. VA and CA spring to mind.

This kind of imprecise ignorance is why it's more likely you were a janitor.

[Dr. Ed 2]

OK, California changed its rules — I checked 15 years ago when the “Baby Bar” was only for students attending a law school and was then such a “disaster” that it was speculated it would soon end.

I have a day job, it isn’t janitor, and I’m not quite anal enough to keep rechecking everything on a daily basis. And as to Virginia, I admit I missed that, although “of the 25,173 persons who passed the Virginia Bar Exam from February 2001 to July 2022, only 39 of them read law.” https://barexam.virginia.gov/reader/readermemo.html

And I suppose every state exempts its own law schools.

[Dr. Ed 2]

"Like – if my law school can’t be accredited because it doesn’t permit speakers who oppose LGBT equality to give talks on campus, why should Notre Dame be accredited when they don’t permit speakers who advocate for LGBT equality to give talks on campus?"

Is your law school affiliated with a religious order with a defined doctrineal position on "LGBT equality" (along with a specific definition of exactly what that does and doesn't mean)?

Like we once hung Quakers on Boston Common, and we like, concluded that was wrong and since then, like, we have gone out of our way to respect the religious beliefs of others.

THAT'S THE DIFFERENCE.

[Krenn]

"
Interpretation 208-5[:] Subsection (c) recognizes that law schools may restrict speech consistent with the First Amendment of the United States Constitution.
"

Wait.... what does that even mean? that 208.c is basically a mirror of the first amendment government-citizen relationship, or that all colleges have some form of inherent first amendment right to regulate what is said on college campuses, as part of the college's marketing to the rest of the world?

Can, say "Ginsburg College" require all it's law students to wear "Ginsburg Lace Collars" on "Ginsburg Memorial Day"?

[Krayt]

It means read between the lines? “Our heart is with censorship, but, you know."

“There are laws against murder, but we encourage you to do so as far as it’s legal.”

[Dr. Ed 2]

" that 208.c is basically a mirror of the first amendment government-citizen relationship"

That trikes me as language coming from a non-attorney member of Congress. An attorney would have worded it differently, maybe keeping the analogy but making it clear that the 1st Amd doesn't apply to PRIVATE law schools.

It's why I am saying someone fired a shot across the ABA's bow -- I just don't know who.

[Drewski]

[Scribe]

1. It should be an embarrassment to have even been needed. The'll present this with a straight face.
2. No confrontation rights in disciplinary proceedings.
3. I'm not holding my breath about enforcement being even-handed across the ideological spectrum.
--- as an aside ---
4. CUNY Law can't find a hall that will allow them to hold their commencement speeches. Too much woke antisemitic content in past speeches have made the law school radioactive, at least with the people who might rent halls for gatherings.

[Dr. Ed 2]

There may be more to CUNY law’s problem.

I’m reminded of the last time that Ann Coulter spoke at Smith College — they were using a nearby auditorium owned by the City of Northamption. The 200 lb lesbians were blocking the isles so as to intimidate and I asked the Smith College cops if that wasn’t a violation of the fire code. They responded that it was, and ordinarily they’d tell them not to do that, except that “the dean” had told them not to do anything.

I asked “isn’t this a City-owned building?” They smiled and a few minutes later, City of Northamption cops were clearing the isles.

That may be an issue with CUNY Law — that the building’s owner has rights and the city police have jurisdiction — and while it wouldn’t look good for CUNY Law to have 30 arrests at a graduation, neither the venue owner nor the city cops would care about that.

IANAA and venue contract law is something I know absolutely nothing about, but my guess is that there are clauses in the contract (or would be) about how venue management has the right to both call the cops and/or shut down the event if things get out of hand.

Hence it isn't them being radioactive per se, but that they can't find a venue that would permit them to remain so.

[Archibald Tuttle]

What about the ABA's own policies that could sanction ABA members for their own speech. That has been widely discussed here on VC? Does that still stand?

[Dr. Ed 2]

I highly doubt that any bar sanction would withstand a frontal challenge on a First Amendment basis. It's just that conservative lawyers would prefer to quietly make money and not be in trouble, so they likely would self-censor.

The authority to accredit is more of an Achilles heel.

[John F. Carr]

"that constitutes a genuine threat or harassment"

"Harassment" is vague. Picking a side in the Israel-Palestine conflict is harassment if an administrator wants it to be.

[Dr. Ed 2]

I imagine that opposing Massachusetts' new gun confiscation law would be as well. So much if there is a defensible (I argue correct) legal argument that it is unconstitutional -- arguing it would still be considered harassment.

Never forget that Harvard demoted a criminal law professor for the offense of -- heaven forbid -- assisting in a criminal defense. OK, the perp was likely guilty and quite disgusting, but isn't defending such schmucks what the criminal defense bar *does*?

[Commenter_XY]

It says a lot for the state of our legal system that the ABA even felt compelled to issue Standard 208 in the first place.

Quis custodiet ipsos custodes? 🙂

And who enforces?

[Dr. Ed 2]

Congress?

[tkamenick]

"that falsely defames" - Didn't lawyers write this? It's redundant. Defamation by definition has to be false.