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 schools are required to protect academic freedom and freedom of expression as a condition for their accreditation. This was a "step forward" for free speech and open inquiry at American law schools.
Standard 208 obligates law schools 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," among other things. The clear implication of the standard's language (and accompanying interpretations) was that law schools should be expected to provide speech protections consistent with the First Amendment. In other words, private law schools and public law schools would be expected to meet the same standard (with appropriate accommodation for those schools 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.
