Bar Association Requires Law Schools to Adopt Free Speech Policy

• U.S. law schools will soon be required to create policies to protect free speech and academic freedom.
• The American Bar Association passed the new requirement in early February.
• Both public and private institutions would need to institute the new policies if they aren't already.

Law schools across the country, both public and private, must adopt free speech policies or risk losing their American Bar Association (ABA) accreditation.

The ABA's House of Delegates adopted the new requirement during its midyear meeting on Feb. 5. The new standard requires law schools to adopt, publish, and adhere to written policies that encourage and support the free expression of ideas, for faculty members and students.

Those policies, per the revised standards, must:

• Protect the rights of faculty and students to share ideas that may be controversial or unpopular, including through debates, demonstrations, and protests
• Forbid conduct that hinders free expression by disrupting law school-approved activities like classes, meetings, interviews, ceremonies, and other public events

A law school can still restrict speech in some limited circumstances. That includes speech that violates the law, such as defamation and genuine threats. Institutions may also set parameters on when and where students can reasonably share their opinions.

Lastly, free speech policies should reflect the law school's mission, including a religious mission, ABA's resolution states.

The new framework is noteworthy because it applies to both public and private institutions.

While public colleges and universities are always held to the First Amendment standard for freedom of expression, private institutions have more leeway in restricting student speech. To maintain ABA accreditation, private institutions must implement many of the same standards as their public counterparts.

Discussions over student free speech rights intensified following the start of the latest Israel-Hamas war.

But law schools have had a prominent part in student free speech issues even before that conflict. Stanford University apologized to a federal judge in March after law students disrupted a campus appearance, and Yale University students similarly disrupted a speaking engagement involving a lawyer with the Alliance Defending Freedom in March 2022.

ABA's resolution regarding freedom of expression also created new parameters for academic freedom.

The revised standards require law schools to adopt policies that protect academic freedom for all full- and part-time employees. Such policies should allow faculty and staff to conduct research, publish papers, and teach without fear of retribution from the institution's law program.

Academic freedom has also been a hot-button issue in recent years.