☆ Opinion: American Bar Assn's free speech proposal “laudable,” but devoid of “actual consequences”

Tim Rosenberger, Jr., former president of the Federalist Society's Stanford chapter, analyzes the ABA's suggestion that colleges develop policy against “disruptive behavior that hinders free expression.” They mean well, says TJR, but fiascos like the Judge Duncan Incident will only stop if institutions take a firm stand. The ABA Journal's press release, and TJR's Opp Now exclusive statement, below.

From the ABA Journal:

Following various controversies around campus speech and a U.S. House of Representatives committee request to investigate a Stanford Law School incident, the Strategic Review Committee of the ABA’s Section of Legal Education and Admissions to the Bar has proposed a new accreditation standard focused on guidance for academic freedom policies.

Outlined in an Aug. 2 memo, the proposal also addresses freedom of expression. Currently, Standard 405(b) requires law schools to have an “established and announced policy” about 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....

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.

This article originally appeared in the ABA Journal. Read the whole thing here.

From Tim Rosenberger, Jr.:

The ABA’s efforts to preserve academic freedom on law school campuses are laudable, but unequal to their stated aims. Law schools must face actual consequences, including consequences related to accreditation, when they silence, stifle, or otherwise prevent dissent and debate.

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