Paul L. Caron

Monday, November 20, 2023

ABA Council Unanimously Votes To Send Law School Free Speech Accreditation Standard To House Of Delegates For Final Approval In February

Reuters, Law School Free Speech Proposal Moves Forward After ABA Vote:

ABA Legal Ed (2022)A plan that would require all American Bar Association-accredited law schools to establish free speech policies cleared a key hurdle on Friday amid mounting campus tensions over conflict in the Middle East.

The ABA’s Council of the Section of Legal Education and Admissions to the Bar, which oversees law schools, voted unanimously to send the free speech proposal to the ABA’s House of Delegates in February for final approval. The ABA’s law school accreditation rules have long protected the academic freedom of faculty, but this standard would be the first address free speech for the entire law school community. ...

Campus free speech debates have intensified since Hamas’ Oct. 7 attack on Israel and Israel’s responding assault on Gaza, with Israeli and Palestinian supporters clashing. But free speech has been a hot topic in legal education for more than two years following controversies at a several high-profile schools — which played a role in developing the ABA’s new free speech requirement., ABA Council Sends 'Academic Freedom' Proposal to HOD:

During the Council’s Nov. 17 meeting, held Texas on Friday, Daniel Thies, vice chair, suggested sending Standard 208 to the HOD with only “a few small tweaks to the language, all of which we think are clarifying changes, not things that need to go back out” to notice and comment again.

First, there were comments from a number of folks that it would be helpful to reference all libraries, as well as specifically being entitled to protection, so language has been added, Thies said.

There were various comments that were concerned that guest speakers should also be included in the protections of standard 208. The committee believes that they are included, Thies said, but “we tweaked that language just slightly to say it applies to those teaching in law school courses to make clear that guest lecturers are included in that,” which also includes guest speakers who are invited by student organizations. ...

Leaders from six faith-based law schools—Stephen C. Payne, the dean of the Columbus School of Law at The Catholic University of America; Ambassador Morse H. Tan, dean of Liberty University School of Law; G. Marcus Cole, dean of Notre Dame Law School; David H. Moore, dean of the J. Reuben Clark Law School, Brigham Young University; Blake Hudson, dean of the Cumberland School of Law at Samford University; and Paul L. Caron, dean of Pepperdine Caruso School of Law—wrote supporting the proposal but expressing concerns that subsection (c)(3) places an burden on religious institutions, urging the ABA to revise the subsection to remove the burden. ...

Proposed Standard 208 includes:

(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.

ABA Journal, Legal Ed Council Votes to Send Academic Freedom Proposal to ABA House of Delegates

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