ABA STEPS UP ON FREE SPEECH: Professors, administrators and counsel applaud proposed ABA standard on academic freedom.
The memo suggests creating a new standard, which would include language saying it applies to full- and part-time faculty, affords due process to people who claim their academic freedom has been violated and condemns disruptive behavior that hinders free expression.
The memo marks the first step of the proposed revision, and its authors suggest it go out for notice and comment if approved, as is customary with standards changes. The Legal Education and Admissions to the Bar council is scheduled to vote on the matter Friday when it meets in Chicago.
Details of the Stanford Law School speech are not included in the memo, but it does cite an incident from March 2023, which was when Judge Stuart Kyle Duncan of the 5th U.S. Circuit Court of Appeals at New Orleans spoke at a campus Federalist Society event. While in private practice and on the bench, Duncan has done work that some find harmful to transgender individuals. A video of the event shows members of the audience heckling Duncan as well as an exchange with Tirien Steinbach, then the law school’s associate dean of diversity, equity and inclusion.
According to the August memo, the U.S. House Committee on Education and the Workforce requested that the council investigate Stanford Law’s compliance with Standard 405. The memo also says the request did not influence the proposal to add a standard specifically addressing academic freedom and freedom of expression.
Lawyers interviewed by the ABA Journal say the Stanford incident raises issues of free speech, but not academic freedom. They also think more guidance is needed on both topics, and a new, more detailed accreditation standard would be helpful.
Additionally, there’s a strong sense that while freedom of expression rights may protect some speech that leads to disruptions, there is generally not a protected right to disrupt a speaker.
“It’s important for schools to clearly state that the disruption of speakers is not tolerated, and if students do that, they will face academic discipline,” says Erwin Chemerinsky, dean of the University of California at Berkeley School of Law and an ABA Journal contributor.
He sees protests outside or inside a building, including standing in the back of an event space or classroom with signs, as protected speech, providing the actions don’t disrupt the speaker or prevent the audience from hearing and seeing what is said.
The proposed standard, which Chemerinsky describes as “terrific and well done,” suggests condemning disruptive behavior that prevents or interferes with law school functions and activities.
Yes.