New ABA Accreditation Standard Is A Step Forward For Free Speech At Law Schools

David Lat (Bloomberg Law), New ABA Rule Is a Step Forward for Free Speech at Law Schools:

When it comes to free speech and intellectual diversity, US law schools continue to face challenges. On Jan. 23, the Law School Student Senate at Columbia Law School voted to deny official recognition to Law Students Against Antisemitism, or LSAA, a student group seeking to “raise awareness and educate about both historical and contemporary antisemitism.”

Nine organizations requested official recognition from the Senate this year, and Law Students Against Antisemitism was the first to get rejected. Why? According to a letter from the Foundation for Individual Rights and Expression, or FIRE, to the Student Senate president, the rejection appeared to rest on objections to LSAA’s definition of antisemitism, which some pro-Palestine students opposed. It therefore was, in the words of professor Steven Lubet of Northwestern Law, “a blatant case of viewpoint discrimination.”

Columbia Law’s Student Senate later reversed itself and recognized LSAA. But the fact the reversal was even necessary—and didn’t happen until after the decision was widely criticized and FIRE intervened—reflects an ongoing free-speech problem in US law schools. (According to the Columbia Law School Senate Executive Board, the initial rejection of LSAA was based primarily on a problematic provision in the LSAA constitution pertaining to the removal of board members, not the constitution’s definition of antisemitism—and once this issue was addressed, LSAA was approved.)

This free-speech problem attracted notice of the American Bar Association, the leading accreditation body for law schools—and the ABA took action. On Feb. 5, the ABA House of Delegates passed a resolution adopting Standard 208, “Academic Freedom and Freedom of Expression.”

Standard 208 requires law schools, as a condition of accreditation, to “protect the rights of faculty, students and staff to communicate ideas that may be controversial or unpopular, including through robust debate, demonstrations or protests.” It is, as noted in the ABA Journal, “the first accreditation standard to address free speech for the entire community within law schools”—not just for faculty, who were already covered by standards protecting academic freedom. …

“Standard 208 is a desirable reaffirmation of free-speech principles,” said Erwin Chemerinsky, dean of the UC Berkeley School of Law and a leading scholar of constitutional law. “It’s in accord with what almost all law schools already do. But especially in these difficult times, where so many free speech issues have arisen, it is desirable for the ABA and the law schools to make clear their commitment to freedom of speech.” …

Despite all its virtues, Standard 208 is not a panacea. Perhaps most importantly, it doesn’t address the significant social pressures on faculty and students to engage in self-censorship on controversial issues. …

At the end of the day, while Standard 208 is a commendable step forward, free speech and academic freedom are ultimately about culture. Law schools must instill a culture of free speech and academic freedom, one in which people tolerate and even affirmatively seek out opposing viewpoints. And that can’t be done by rules and standards alone; it needs to be done by changing hearts and minds.

I joined the deans of BYU, Catholic, Cumberland, Liberty, and Notre Dame law schools in a letter to the ABA supporting Standard 208 but objecting to the extra burden placed on faith-based law schools.

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