ABA: Law schools must adopt policies consistent with 1st Amendment

To maintain accreditation with the American Bar Association, law schools must enact explicit free speech policies protecting the rights of faculty, students and staff to articulate controversial and unpopular ideas, the organization’s House of Delegates voted on Monday.

The new requirement forbids conduct that “hinders” free expression by “substantially interfering” with classes, meetings, interviews, ceremonies and public events. It allows law schools to restrict expression that violates the law, defames a specific individual, threatens and harrasses, and violates privacy and confidentiality.

“Until now, the standards have dealt with this matter in an indirect fashion,” said Antonio Garcia-Padilla, the Section of Legal Education and Admissions to the Bar delegate during a discussion at the House of Delegates on Monday. “After extensive consultation, we believe that the policy will be better served if expressed directly as a general principle.”

The new requirement, Standard 208, was more than a year in the making.

“In the background, but not influencing the creation of Standard 208, were the widely publicized disruption of a speech at Stanford Law School in March 2023 and a letter that month to the Council from the U.S. House Committee on Education and the Workforce asking the Council to investigate the Stanford Law School’s compliance with Standard 405(b),” reads the resolution for Standard 208.

In that incident, remarks by 5th U.S. Circuit Court of Appeals Judge Stuart Kyle Duncan to Stanford’s chapter of the Federalist Society were interrupted by students who said his positions threatened the rights of minority groups. The approval of Standard 208 also followed heated debates and protests on university campuses over Israel’s military campaign in Gaza following an attack by Hamas in October.

More than 40 law firms in November called on some of the top law schools in the U.S. to take a stand against anti-Semitic harassment on college campuses “including rallies calling for the death of Jews and the elimination of the State of Israel.”

A letter from regional and national bar associations pushed back, saying they were dismayed that other than a single reference to Islamophobia, the law firms’ letter focused exclusively on anti-Semitism.

“The letter unfortunately missed the opportunity to equally express concern for members of the Palestinian and Muslim communities who have been experiencing significant discrimination, harassment, silencing, hate, violence, and fear in the current social climate,” the letter reads.

UC Berkeley and its law school were accused in a lawsuit of failing to protect Jewish students. Filed by The Louis D. Brandeis Center, the lawsuit claimed that the university allows student groups to exclude pro-Zionist speakers or require student volunteers who provide pro bono legal services to take a “Palestine 101” training program that questions the state of Israel’s legitimacy.

Dean Erwin Chemerinsky told the Daily Journal in an email that the complaint paints a “stunningly inaccurate picture” of the law school and “ignores the First Amendment.”

“For example, student organizations have the First Amendment right to choose their speakers, including based on their viewpoint. Although there is much that the campus can and does do to create an inclusive learning environment, it cannot stop speech even if it is offensive,” Chemerinsky wrote in an email.