Enhancing Free Speech Protections in Law Schools: ABA Proposal Sparks Controversy

Amidst a backdrop of contentious free speech issues within law schools, the American Bar Association (ABA) is contemplating a new mandate to bolster the protection of "freedom of expression" on campus. In response to growing concerns over the curtailment of free speech, the ABA, responsible for accrediting law schools, has opened a window for public input on a proposal until September 29. The proposal calls for the compulsory implementation of written policies safeguarding free speech while prohibiting disruptive activities within these institutions. The ABA's Section of Legal Education and Admissions to the Bar anticipates substantial feedback on the matter, with further deliberations scheduled for November.
 

If endorsed, this proposal would constitute the inaugural accreditation standard addressing free speech rights for the entire law school community, a significant development given that academic freedom for faculty has long been within the purview of existing standards. The impetus for this proposal stems from recent high-profile incidents at Stanford Law School and Yale Law School, wherein students disrupted events featuring controversial speakers, leading to criticism of the institutions' responses.
 
Stanford Law School apologized to 5th U.S. Circuit Judge Stuart Kyle Duncan after students disrupted his address to the campus Federalist Society chapter in March. Subsequently, the school introduced mandatory free speech training for students. Likewise, Yale Law School reinforced its commitment to free speech following a disruptive incident during a campus discussion with a conservative guest speaker in March 2022. This event resulted in two federal judges announcing their refusal to hire clerks from Yale.
 
The ABA's proposal mandates that law schools develop their free speech policies, primarily focusing on safeguarding the rights of faculty, staff, and students to express controversial or unpopular ideas. It also emphasizes preserving the integrity of robust debates, demonstrations, and protests while prohibiting disruptive activities that obstruct free expression or significantly disrupt the functioning of law school activities.
 
In addition to the proposed free speech guidelines, the ABA is soliciting public commentary on various other modifications, including adjusting to library regulations to enable schools to maintain fully digital collections. Furthermore, a separate proposal about student learning outcomes is under consideration. This proposal would necessitate schools to formulate a precise and quantifiable list of what students should learn in each course. Additionally, all first-year courses must incorporate at least one "formative assessment" — an opportunity for students to receive feedback and assess their performance before taking a final exam.