Legal Ed council votes to send academic freedom proposal to ABA House of Delegates
Amid rising tensions on campuses nationwide, the ABA’s council of the Section of Legal Education and Admissions to the Bar on Friday voted unanimously to send its proposal regarding academic freedom to the House of Delegates for consideration at the ABA Midyear Meeting in February.
Questions regarding academic freedom and free speech have bubbled up in the past few years after outbursts at events with controversial speakers at Stanford Law School and Yale Law School. Campus protests since the start of the Israel-Hamas war are keeping the conversation on the table.
Also at the Friday meeting in Dallas, the council voted to move a proposal regarding online library standards to the House, and it approved for public notice and comment proposed revisions to loosen accreditation standards for new online-only law schools.
New language regarding academic freedom for Standard 208 would allow faculty, students and staff to “communicate ideas that may be controversial or unpopular, including through robust debate, demonstrations or protests.” However, it forbids disruptive activities that hinder free expression or impede law school activities.
According to Daniel Thies, vice chair of the council and co-chair of the Strategic Review Committee, the proposal received 21 comments, some of which prompted minor tweaks to the proposal’s language to include guest lecturers, guest speakers and law libraries and their services. Speakers invited by student organizations and others outside of class time, however, would be covered by the freedom of expression section, Thies said.
No changes were made to define specific terms such as harassment, as granular language decisions “will get flushed out in every law school’s individual policy,” he told council members at the meeting. Standard 405(b) requires law schools to have an “established and announced policy” about academic freedom.
“We want to make clear that [the proposal] does not allow law schools to restrict speech beyond what the First Amendment protects,” Thies said.
A proposal nixing the requirement for law libraries to have a physical collection also will move forward.
“The purpose of these revisions is to give law libraries flexibility to use space, technology, information resources and collection formats most appropriate for their law schools,” an Aug. 17 memo from the council’s Strategic Review Committee states.
However, after receiving 10 comments, the original proposal received minor changes, such as clarifying that the law library director must be full-time and the processes of hiring library personnel.
Allowances for distance learning at law schools got a new look post-pandemic. Currently, fully approved law schools may offer up to 50% of distance learning. If an approved school applies for a substantive change to fully online and is approved, it can become 100% online.
Two sets of proposed changes will be finalized for notice and comment in the next few weeks, Thies said.
One set involves Chapter 7 Standards 701 and 702, which are related to the requirement to have facilities for in-person operations. Those changes will outline what are sufficient facilities for online programs.
The second revolves around Standard 105(c), which now states that law schools must be fully approved to apply for the substantive change. That excludes online law schools starting from scratch, which often offer tuition cheaper than for online programs connected to a traditional school.
The council’s call for comment regarding Standard 304, which covers experiential learning, comes as some jurisdictions consider alternatives to the classic bar exam.
On Friday, the State Bar of California Board of Trustees voted to forward to the California Supreme Court a plan to pilot the Portfolio Bar Examination alternative pathway to licensure with 100 applicants who are provisionally licensed under the Provisional Licensure Program, which is due to sunset Dec. 31, 2025. Applicants would need to complete an additional 700 to 1,000 hours of legal work under supervision of a licensed attorney and then submit work product portfolios for evaluation by the State Bar.
Earlier this month, the Oregon Supreme Court unanimously approved implementation of the Supervised Practice Portfolio Examination, requiring graduates to complete 675 hours of work under the supervision of an experienced attorney and create a portfolio of legal work to be evaluated by the Oregon State Board of Bar Examiners.
The council’s Experiential Credits Working Group found in a survey of 83 law schools that 56% were in favor of increasing the number of clinical credits required, with nine being the most suggested amount, said Mary Lu Bilek, who is chair of that working group and chair of the council’s Data Policy and Collection Committee. She told council members that legal education lags behind other professions in the amount of required supervised clinical credits. While the cost of live in-house clinical instruction can be high, she said, other options like externships might offer less costly options.
The council will post an online form seeking comment on these issues and will send it out to all law schools for comments and suggestions, Bilek said.
Resolutions submitted to the House of Delegates for consideration at the midyear meeting can be revised or withdrawn up until the House meets on Monday, Feb. 5. It is not unusual for the language of resolutions to be changed based on feedback from other entities, or for the hearing of resolutions to be postponed. Informational reports are due Dec. 8, and they will be available for review on the House of Delegates’ 2024 midyear meeting page shortly thereafter.
Recommended revisions to Standards 302, 314 and 315 involving programs, outcomes and assessment also received comments after the August council meeting, but that discussion was postponed to a future meeting.