Law Schools

ABA's New Law School Free Speech Requirement Just Makes Everything Worse

The ABA's new accreditation requirement doesn't live in a vacuum.

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The ABA House of Delegates just voted to approve a measure making accreditation contingent upon law schools adopting written free speech policies.

Runaway tuition, a practice-ready curriculum, abysmal bar passage rates… trifles for another time!

As a text, the resolution is benign. It requires written policies to “protect the rights of faculty, students and staff to communicate ideas that may be controversial or unpopular, including through robust debate, demonstrations or protests.” That’s vague enough to cover just about any policy. But it’s all in the details when it comes to campus speech — when does a statement about the government of Israel cross into antisemitic hate speech is the balancing act that’s bringing down university presidents and there’s nothing in here that guides schools on where to draw those lines. It’s mostly an FYI that speech is generically good. Cool story.

In a vacuum, there’s nothing wrong with this sentiment. Unfortunately, the national accrediting body for law schools doesn’t have the luxury of acting in a vacuum. When you say “listen, we just want to publicly affirm our support for Gary” everyone’s next thought is, rightly, “what the fuck did Gary do?”

Generating a crisis remains the quickest route to undermining freedoms. There might not be anything wrong with this resolution, but taking a public stand right now just validates the “campus free speech crisisTM” narrative undergirding the concerted effort to redefine “free speech” as a top-down freedom. There’s a vision of “free speech” where those with the privilege of sitting onstage are affirmatively protected from criticism and the role of government (and quasi-government) authority is to silence the audience. It moves the locus of acceptable “debate” to grounds of contestation defined by who gets sanctioning from authority.

Which is basically the opposite of “free” speech, but with just enough of a manufactured emergency, its proponents can get administrators to go right along with it.

So the ABA implicitly gives credence to this crisis rhetoric and then the coverage passes it right along to the masses. Not to pick on the coverage from Reuters — it’s not their fault that journalism has structural defects in covering this stuff — but its coverage of this is indicative of how the media is ill-equipped to deal with the challenge of this moment.

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Stanford University officials apologized to 5th U.S. Circuit Court of Appeals Judge Stuart Kyle Duncan after students disrupted his remarks to the campus Federalist Society chapter in March. The law school also mandated free speech training for students.

By “disrupted his remarks,” the account ignores the contemporary eyewitness accounts as well as the video of the event before it was clipped into snappy Fox News agitprop. Armed with that context, a reader would know that students described Judge Duncan walking into the school “looking more like a YouTuber storming the Capitol” with his phone out trying to capture anything he could sell as “disruptive.” Ultimately, he managed to capture acceptable cable news fodder after he was asked civil, straightforward questions that he refused to answer finally exhausting the patience of the attendees.

But he got the school to apologize and fire the administrator who tried to facilitate a respectful exchange. So there’s that.

Yale Law School said it bolstered its commitment to free speech after a group of students in March 2022 disrupted a campus discussion with Kristen Waggoner, president of conservative religious rights group Alliance Defending Freedom. That incident prompted two federal judges to later say they would not hire clerks from Yale.

Now, it’s probably worth noting that Kristen Waggoner works for a recognized hate group and the students who “disrupted” that speech followed Yale Law’s existing rules to the letter. At the time, those rules allowed protests to occur in the room with two warnings — a provision designed to prevent protests from being shunted away from the epicenter of an event where they could never be noted by the audience, while still facilitating the event by mandating that the protesters leave after that. Which the Yale students then did!

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In fact, they left after the FIRST warning.

The word “disrupted” obscures the fact that it happened once and then the event continued without further interruption through completion. A reader parachuting into this conflict would be forgiven for taking “disrupted” as the continuing rather than a temporary event, assuming the protesters drowned out the speaker and seized the stage like the Bastille. Clicking the link in the Reuters article provides some (but not all) of this context, but relying on readers to take the time to follow a link rabbit hole is a gamble.

Bloomberg’s coverage noted that “demonstrators made it difficult” for the judge and Waggoner, which is probably less susceptible to misunderstanding than “disrupted” but is also vague enough to allow all manner of mischievous reading.

The point is, neither article intended to carry water for these dubious accounts, but they’ve got to shove some context in there without wasting a lot of digital ink. Duncan, Waggoner, and friendly travelers like Judge Ho flooded the market with their versions of events. Their accounts enjoyed a lot more attention with their positions of relative power over the students and student-friendly faculty. Cowardly administrators hemmed and hawed to preserve their clerkship standing, and the schools’ official positions got rolled up into conclusory statements like “apologized.”

What more is there to say? Any dispute over what actually went down is tacitly erased, washed away by “the students were mean says person who didn’t like them and the school agreed when threatened!” No one’s checking in with the minority students who say the administration threw them under the bus when there’s such a tidy account.

Cynical actors fully grasp this inherent weakness.

At the Midyear meeting, ABA President Mary Smith urged members to protect democracy in this challenging moment. But issuing vague, toothless statements while the other side is hacking democratic institutions is just wearing a steak suit to a hyena convention.

Law schools must adopt free speech policies, after ABA passes rule [Reuters]
ABA Vote Requires Law Schools to Prohibit Disruptive Protests [Bloomberg Law News]
Free speech and academic freedom standards will now be part of ABA accreditation process [ABA Journal]
ABA is ‘ultimate resource’ for lawyers, says Alpha Brady, first African American executive director

Earlier: Biglaw Firms Tell Law Schools To ‘Pls Hndle Thx’ Antisemitism
Stanford Law School Trades Dignity And Principle For Trump Judge’s Approval
Stanford Law School Defused Free Speech Crisis By Throwing Minority Students Under The Bus
Stanford Law School Moderates May Be The Biggest Snowflakes Of All
Stanford Law Protects Their Speakers From ‘Institutional Orthodoxy And Coercion’ By Forcing Their Students To Undergo ‘Mandatory Educational Programming’
Federal Judge Calls Stanford Law Students ‘Appalling Idiots’ After Refusing To Answer Their Questions
Free Speech Is The Freedom To Shut Up And Listen To Your Betters, Trump Judge Explains
Yale Law Professor Suggests Punishing Students For Following The Rules

HeadshotJoe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

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