The Volokh Conspiracy

An American Bar Association Strategic Review Committee Memorandum, released Thursday, suggests a proposed new Standard 208 in the ABA's Standards for law schools:

[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 law school courses;

[2] Apply to conducting research, publishing scholarship, engaging in law school governance, participating in law related public service activities, 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, 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, so long as such policies are not in violation of the law 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.

Note that the existing ABA Standard 405 briefly discusses academic freedom ("A law school shall have an established and announced policy with respect to academic freedom and tenure of which Appendix 1 herein is an example but is not obligatory"), but this proposal would elaborate on that, and would also add the material on freedom of expression. Thanks to James Creigh for the pointer.

From D.C. v. Casa Ruby, Inc., decided May 1 by D.C. trial judge Danya A. Dayson, but just posted on Westlaw:

Therefore, specifically, as to each Third-Party board member Defendant, there must be factual allegations sufficient to support an inference or conclusion that the board member either intentionally, rather than negligently, inflicted harm on Casa Ruby, that they voted for or assented to a distribution made in violation of DC Code 29-406.33, that a board member intentionally violated a criminal law or that the board member received some amount of money to which they were not entitled.

{[Footnote accompanying the "they":] In this Order, the pronoun "they" is used as a singular pronoun to refer to a hypothetical person, consistent with prevailing practices in style guides. See, e.g., MLA Handbook § 3.5 (9th ed. 2021) ("[T]hey has gained acceptance as a generic, third-person singular pronoun used to refer to hypothetical or anonymous people."); APA Publication Manual § 4.18 (7th ed. 2020) (advising writers to "use 'they' as a generic third-person singular pronoun to refer to a person whose gender is unknown or irrelevant to the context of the usage."); The Associated Press Stylebook, they, them, their (55th ed. 2020) ("Arguments for using they/them as a singular sometimes arise with an indefinite pronoun (anyone, everyone, someone) or unspecified/unknown gender (a person, the victim, the winner)."); The Chicago Manual of Style ¶ 5.48 (17th ed. 2017) (noting that "because he is no longer universally accepted as a generic pronoun referring to a person of unspecified gender, people commonly (in speech and in formal writing) substitute the third-person-plural pronouns they, them, their, and themselves (or the nonstandard singular themself.))".}

This doesn't speak to the more modern pronoun dispute: the use of "they" to refer to named people, whose gender is known (whether or not they themselves prefer to be labeled "they"). It's also just one judge's opinion; I expect many other judges prefer to avoid this, and many others just use singular "they" without saying anything about it.

As for me, I still urge my students to avoid this, unless they have reason to think the judges who will be reading the brief are fine with it. Here's what I wrote about it two years ago:

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