The Council of the ABA Section of Legal Education and Admissions to the Bar took a major step on Nov. 17 to create a new standard that seeks to protect academic freedom and freedom of expression in law schools.
Without dissent, the section’s 21-member governing body approved Standard 208, which would require all 196 law schools it accredits to adopt and enforce policies to protect academic freedom and freedom of expression of law students, faculty and staff. The decision means the proposed standard will be considered by the ABA House of Delegates (HOD), when it meets Feb. 5 at the 2024 ABA Midyear Meeting in Louisville, Kentucky.
Under ABA rules and procedures, the HOD can concur, reject or make recommended changes. But the council has the authority to move ahead with its change after two HOD reviews regardless how the HOD acts.
The new standard wouldn’t impose specific policy language on law schools. Rather, it would require schools to adopt a policy that 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 activities that disrupt or impinge on free speech.
Law school faculty have long enjoyed protections for academic freedom. But if enacted, the new standard would be the first to address free speech for the entire law school community. The move follows student protests at Stanford Law School and Yale Law School, which disrupted controversial conservative speakers, and comes amid mounting campus tensions in the aftermath of the conflict in the Middle East, which began with Hamas’ invasion of Israel on Oct. 7.
In an unrelated and unexpected move, the council also indicated it would put out for public comment a proposal to ease requirements to allow 100% online schools. The proposal could also apply to existing online schools that do not now have ABA accreditation. Under accreditation rules, law schools can now offer up to one-half of a student’s required course work online without seeking special approval.
Council members acknowledged that the success of the online courses that developed after the onset of the pandemic in March 2020 led to a rethinking of the merits of online law school education. There was no timetable announced on when the council would begin to solicit public comment on the proposal.
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