The policy-making body of the American Bar Association (ABA) has recently passed a directive that mandates law schools to implement written policies on “academic freedom”. According to the directive, these policies ought to facilitate freedom of speech, inclusive of expressions that may be deemed controversial or unpopular.
The measure proposes that such school policies must incorporate rules that prohibit behavior classified as disruptive and “substantially” intervenes with the functions of the law school. The resolution was prompted by protests carried out against conservative speakers at Stanford and Yale law schools such as federal appeals court judge Kyle Duncan, prompting Stanford University to issue a public apology.
This new resolution was approved by ABA’s House of Delegates during their midyear meeting in Louisville. The voting was carried out through voice vote with only a few dissenting “No” votes audible over the majority’s “Yes” votes.
While ABA’s jurisdiction in mandating school policies might be unclear, it’s worth noting that ABA contains the body that accredits law schools. The association already sets guidelines for law school activities in various areas such as curriculum development and evaluation of students, as mentioned by ABA’s president, Mary Smith, in an interview with Bloomberg Law.
The chief objective of the resolution is to safeguard the freedom of expression within the academic community of law schools, says delegate Antonio Garcia-Padilla, a professor at the University of Puerto Rico School of Law.
The newly approved standard represents a more “direct and comprehensive” approach compared to what it was prior to the implementation. The policy grants room for law schools to maintain an environment that encourages “robust” debate. Concerns related to civility and respect must not justify barring discussions of ideas because they may be perceived as controversial or even offensive or disagreeable to some.
The policy, under its new form, allows law schools to limit expressions that either infringe the law, unlawfully defames specific individuals, or amounts to “a genuine threat or harassment”. The approval of the ABA policy was catalyzed in the wake of student protests occurring at Yale and Stanford law schools during events that hosted conservative speakers.
The protests made it difficult for speakers like Duncan to address students at Stanford in April 2023, and for Kristen Waggoner from the Alliance Defending Freedom, a Christian legal advocacy group deemed conservative, to speak at Yale in March 2022.
In Stanford’s apology to Duncan, the unnamed incident was classified as “inconsistent” with its policies promoting free speech.