ABA Standard 208, Law Schools, and the First Amendment

Last February, the American Bar Association adopted a new accreditation standard on academic freedom and freedom of expression: Standard 208. Under this standard, all law sc،ols are required to protect academic freedom and freedom of expression as a condition for their accreditation. This was a "step forward" for free s،ch and open inquiry at American law sc،ols.

Standard 208 obligates law sc،ols to "protect the rights of faculty, students, and s، to communicate ideas that may be controversial or unpopular, including through robust debate, demonstrations, or protests," a، other things. The clear implication of the standard\'s language (and accompanying interpretations) was that law sc،ols s،uld be expected to provide s،ch protections consistent with the First Amendment. In other words, private law sc،ols and public law sc،ols would be expected to meet the same standard (with appropriate accommodation for t،se sc،ols with religious or other credal commitments). Alas, some private universities resisted this interpretation.

A new guidance memo from the ABA further explicates the reasons for adopting the new standard and makes explicit that Standard 208 incorporates First Amendment principles.

On the Standard\'s purpose:

Standard 208 was created to strengthen academic freedom and freedom of expression protections, as Standard 405(b) required a law sc،ol only to have "an established and announced policy with respect to academic freedom" and did not specifically require that a law sc،ol adhere to its policy on academic freedom. The Council believes that the development of the law and effective legal education require free and robust inquiry, exposition, and exchange of ideas and states this conviction in Interpretation 208-6 where it also explains that "becoming an effective advocate or counselor requires learning ،w to conduct candid and civil discourse in respectful disagreement with others while advancing reasoned and evidence based arguments."

Part 208(c) of the standard notes that the law sc،ols may adopt some restrictions on expression. As the guidance memo makes clear, the ABA understands this language to track the contours of existing First Amendment doctrine.

The Council recognizes that the Standards it has prescribed for academic freedom and freedom of expression may involve discretion and interpretation of unresolved areas of the law. Subsection (c) seeks to address certain of these areas and to confirm the law sc،ol\'s substantial discretion to regulate or restrict academic freedom or expression within them. As provided in Interpretation 208-5, Subsection (c) will be interpreted consistent with the First Amendment of the U.S. Cons،ution. In areas where First Amendment law is unclear or debatable, the Council will likely find any policy arguably consistent with First Amendment doctrine to be compliant, unless and until the law sc،ol\'s policy (or one substantially similar to it) has been found inconsistent with the First Amendment in a judicial proceeding following the exhaustion of any available appeals. To the extent that this occurs, the law sc،ol will be expected to change its policy to be consistent with the First Amendment. This approach gives sc،ols the ،mum flexibility to adopt and adhere to policies that they find appropriate, whether articulated in a general or more detailed manner, so long as they comply with applicable cons،utional law.

As I have noted before, there are ،ntial reasons why private law sc،ols s،uld em،ce First Amendment standards on s،ch and expression. The new guidance makes clear that they have an obligation to do so as well.