Laws Schools Must Protect Free Speech, American Bar Association Says

Today, far too many of the stories stemming from our nation’s top law schools seem to have more to do with stifling speech than encouraging it. Speakers invited to campus to share their knowledge and experience have instead been met with vicious verbal attacks. And in some cases, school officials have done little or nothing to quell the rising threats to free speech.

It is precisely because First Amendment principles hold a tenuous position on these campuses that a new rule from the American Bar Association is so pivotal.

The ABA’s free speech requirement

In February 2024, the ABA passed a new resolution titled, “Standard 208: Academic Freedom and Freedom of Expression.” It stipulates that for law schools to keep their ABA accreditation, they must enact policies that “encourage and support the free expression of ideas.” In addition, the policies must prohibit activities that stifle free expression.

The proposal notes that the “free, robust, and uninhibited sharing of ideas” is essential to an effective legal education. In recent years, some elite law schools have deprived their students of this opportunity.

Free speech stifled at law schools

When federal appellate judge Kyle Duncan visited Stanford Law School to speak about how lower courts address unclear or changing Supreme Court jurisprudence, he was met by a student mob. He later recounted that as he walked into the classroom, he heard one person yell, “We hope your daughters get raped!” And while Judge Duncan tried to speak, the mob shouted him down and made it impossible for him to deliver his remarks.

The law school’s associate dean of diversity, equity, and inclusion, Tirien Steinbach, did not make a genuine effort to preserve the event. She offered some half-hearted platitudes about the school’s commitment to free speech but quickly turned to criticizing Judge Duncan. Eventually, she suggested the speech may not be worth the hostile reaction it caused among the students, essentially endorsing a heckler’s veto.

Stanford President Marc Tessier-Lavigne and Law School Dean Jenny Martinez issued an apology to Judge Duncan acknowledging that “staff members who should have enforced university policies failed to do so, and instead intervened in inappropriate ways that are not aligned with the university’s commitment to free speech.” But the apology didn’t change the fact that Judge Duncan was unable to express his message.

Almost exactly a year earlier at Yale Law School, Alliance Defending Freedom CEO, President, and General Counsel Kristen Waggoner was supposed to participate in a panel discussion with Monica Miller of the American Humanist Association. While Kristen and Monica vary greatly in their beliefs, they were ready to come together and discuss an important free speech case.

When they arrived, they were met by over a hundred students who shouted, chanted, banged on the walls, and further disrupted the event. Kristen and Monica had to be escorted from the room to a patrol car by law enforcement.

As concerning as that event was, Kristen’s subsequent visit to Yale provided hope. In January 2023, she returned to campus to speak with former ACLU President Nadine Strossen about 303 Creative v. Elenis. Kristen and Nadine were able to speak without being shouted down, and the event demonstrated that when civil debate is encouraged, free speech can thrive. This culture of free speech is exactly what the ABA’s new requirement should promote.

Why is the ABA’s new requirement important?

On one hand, it is unfortunate that the ABA needed to issue a requirement for law schools to protect free speech. After all, robust debate and the sharing of ideas are inherent to the legal profession. Law schools shouldn’t need to be taught the value of these rights.

On the other hand, the incidents at Yale and Stanford prove that more protections for free speech are needed, and the new ABA requirement may signal a turning of the tide.

The ABA doesn’t align with ADF on everything. But neither does Monica Miller or Nadine Strossen. The point is that free speech should not be a partisan issue. It’s a human freedom that every American should want to protect. And it should be of particular importance to law students, many of whom will spend their careers making arguments in court and advocating diverse viewpoints.

Requiring law schools to enact policies protecting free speech is a great step in the right direction. Now, we must hope and pray that these policies are enforced and a culture of free speech can flourish at our nation’s law schools.