The Council of the ABA Section of Legal Education and Admissions to the Bar has taken initial steps to create a new standard that seeks to protect academic freedom and freedom of expression in law school.
On Aug. 18, the council released for public comment new Standard 208, which would require all 196 law schools it approves to adopt and enforce policies to protect academic freedom and freedom of expression. While the council wouldn’t impose specific policy language on law schools, the new standard would allow faculty, students and staff “to communicate ideas that may be controversial or unpopular, including through robust debate, demonstrations or protests,” and would forbid disruptive activities that impinge on free speech.
The proposal recognizes that “effective legal education and the development of the law require the free, robust and uninhibited sharing of ideas reflecting a wide range of viewpoints.”
Daniel Thies, an attorney in Champaign-Urbana, Ill., and co-chair of the council’s Strategic Review Committee, said the changes would strengthen the current standard for academic freedom for faculty, and require for the first time that law schools develop free expression policies for the entire campus. The proposal on free speech, he said, “is carefully limited to require a policy” and enforce it, and comes two years after the council, which is recognized by the U.S. Department of Education as the sole accreditor of the nation’s law schools, decided to review standards for academic freedom.
The free-speech issue at law schools has become a hot topic after several highly publicized events at some of the nation’s top schools. These included a 2022 investigation of a senior lecturer and administrator for a noncomplimentary tweet of then-U.S. Supreme Court nominee Ketanji Brown Jackson, and disruption of remarks of two conservative speakers, one a federal appeals court judge, at two different law schools since then.
In other matters, Bill Adams, managing director for ABA accreditation and legal education, said the council would consider variances for a standard that requires most law school applicants to have a “reliable and valid” test score, such as from the LSAT or GRE. The council had previously decided to “pause” making such a requirement optional.
Adams explained that as law schools likely review their admission policies in light of the U.S. Supreme Court decision in June on race-conscious admissions in higher education, schools that decide to experiment with admissions policies that consider applicants without a test score can apply to the council for a variance.
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