The American Bar Association is currently considering adoption of a new accreditation standard on academic freedom and freedom of expression that would require all accredited law schools to adopt a policy that (1) protects the rights of faculty, students, and staff to communicate ideas that may be controversial or unpopular, and also (2) proscribes disruptive conduct that hinders free expression by preventing or substantially interfering with the carrying out of law school functions or approved activities.
It is particularly interesting to note that this proposed accreditation standard would require a law school to adopt rules both protecting the communication of controversial or unpopular idea, while at the same time proscribing disruptive conduct. These two goals are not inconsistent with each other. It is true that in the past, vaguely worded policies trying to prohibit so called “hate speech” on university campuses may have been misused to censor unpopular or controversial ideas. But the proposed ABA policy correctly notes that there is a difference between speech that is disruptive and speech that is controversial. If this proposed standard is adopted, it may fall to law schools to show to the other disciplines in higher education how this distinction is drawn.
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