ABA Sends Out For Notice And Comment Proposed Law School Accreditation Standards On Academic Freedom And Freedom Of Expression, Learning Outcomes And Assessment, And Library and Information Resources

ABA Memorandum From Bridget Mary McCormack (Council Chair) & William Adams (Managing Director of Accreditation and Legal Education) (Aug. 30, 2023):

At its meeting on August 17-18, 2023, the Council of the Section of Legal Education and Admissions to the Bar (the “Council”) approved for Notice and Comment proposed revisions related to Academic Freedom and Freedom of Expression (new Standard 208), Learning Outcomes and Assessment (Standards 301, 302, 314, 315, and 403) and Library and Information Resources (Chapter 6 of the Standards).

All proposed revisions and accompanying explanations are published on the Section’s website. We solicit and encourage written comments on all the proposals listed above. Please address all written comments to Bridget Mary McCormack, Council Chair and send to Fernando Mariduena by September 29, 2023. Written comments received after September 29, 2023, may not be included in the materials considered by the Council at its November 2023 meeting.

Part 1: Academic Freedom and Freedom of Expression – Creation of Standard 208
Summary: This proposed Standard addresses the interrelated topics of academic freedom and freedom of expression. The development of the law and effective legal education require free and robust inquiry, exposition, and the exchange of ideas. Proposed Standard 208 seeks to ensure that law schools properly protect academic freedom for teachers and freedom of expression more broadly.

Existing Standard 405(b) requires a law school to have “an established and announced policy with respect to academic freedom and tenure” and identifies as an example Appendix 1 to the Standards. This Appendix is the “1940 Statement of Principles on Academic Freedom and Tenure” of the American Association of University Professors. The current standards do not otherwise address academic freedom or freedom of expression.

Proposed Standard 208 would: (1) move the discussion of academic freedom from Standard 405(b), more specifically address the scope and application of a school’s required policy, and decouple the issue of academic freedom (which will apply to all those teaching in the law school) from security of position (which applies only as specified in Standard 405); (2) add a new discussion of freedom of expression modeled on policies adopted by law schools and universities nationwide; and (3) place the Standard in Chapter 2 (Organization and Administration) because these requirements, like others in that chapter, concern the law school’s operation generally and are not specific to topics addressed in other chapters, such as Chapter 3 (Program of Legal Education) or Chapter 4 (Faculty).

The SRC has discussed these issues over the last year. In August 2022, a proposed revision to Standard 405(b) would have required a law school to “adopt, publish, and adhere to” a policy with respect to academic freedom and tenure, rather than merely to establish and announce such a policy. This proposal, which was part of a package with changes to Standard 206, was withdrawn before consideration by the ABA House of Delegates. In September 2022, the Council hosted a roundtable on the topics of Academic Freedom and Freedom of Expression. The SRC subsequently developed draft Standard 208. Also in the background, although not influencing the SRC’s proposed draft 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 school’s compliance with Standard 405(b).

The SRC’s convictions following this review are summed up in proposed 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.” ...

Reuters, Free Speech Is a Hot Topic at Law Schools. Should the ABA Get Involved

Part II: Learning Outcomes and Assessment and Instructional Role of Faculty – Revisions to Standards 301, 302, 314, 315, and 403
This proposal makes several changes with respect to Learning Outcomes and Assessment so law schools better understand what they are expected to do in these areas. It also clarifies the percentage of the first one-third of each student’s coursework that full-time faculty must teach and requires annual education on effective teaching for the full-time faculty. ...

Part III: Library and Information Resources – Revising and Re-Organizing Chapter 6
Summary: Chapter 6 of the Standards (Library and Information Resources) has been substantially streamlined and re-organized. Parts of this chapter were internally repetitive or may have been better placed with Standards relating to assessment or equipment and technology, so parts of Standards in this Chapter may have been moved or deleted. This Chapter was also arranged more thematically so that similar parts of the Chapter were grouped together in the same Standard. Also, the touchpoint for all the work of the library is now that it is sufficient for the law school to operate in compliance with the Standards and to carry out its program of legal education.

Several substantive changes were made to the Standards in Chapter 6. The part of former Interpretation 606-1 that suggested that a law library collection that consisted of a single format could violate the Standards has been deleted. Former Interpretations 606-3 and 606-4 on off-site storage and cooperative agreements were eliminated, except for the last sentence of Interpretation 606-4, which was moved to new Interpretation 604-2. The purpose of these revisions is to give law libraries flexibility to use technology, information resources, and collection formats most appropriate for their law schools. Furthering flexibility for law libraries, there is no longer a requirement of a core collection (former Standard 606(a)) that must consist of the materials enumerated in former Standard 606(b); revised Standard 604(a) instead requires reliable and efficient access to a collection of materials and information resources that is complete, current, and in sufficient quantity or with sufficient continuing access.

Additionally, while the requirement that a law library director be full-time was removed in Standard 603(b), this was not intended to suggest that the law library director could be a part-time law school employee. The intent behind this change was to allow the law library director to have other responsibilities such as teaching law school courses, jointly managing the law school’s law library and a county law library, or other duties in addition to directing the law library. Also, Standard 603(d) specifies that the law faculty appointment with security of position for the law library director means security “reasonably similar to tenure.” Further, there were also places where “law library director” was replaced with “law library” to indicate the involvement of the director and library staff in making decisions about the law library.

ABA Memorandum From Bridget Mary McCormack (Council Chair) & William Adams (Managing Director of Accreditation and Legal Education) (Aug. 30, 2023):

At its meeting on August 17-18, 2023, the Council of the Section of Legal Education and Admissions to the Bar (the “Council”) approved for Notice and Comment proposed revisions to Definitions, Standards, and Rules based on U.S. Department of Education (USDE) guidance and others identified by the Council though its accreditation work.

Part I: Revisions to Standards 202, 311, 313, 502, and 505 and Rule 9 based on Council Accreditation Work ...

Part II: USDE-Related Revisions
The U.S. Department of Education (USDE) has issued updated guidance on a few topics over the last few months and the Managing Director’s Office has noted several updates that need to be made to better align the Council’s definitions with those of the USDE. The following revisions to the Definitions, Standards, and Rules implement the USDE guidance and ensure Council procedures are updated to account for process considerations inherent in this guidance.