The American Bar Association recently adopted new accreditation standards for law schools (public or private) that require them to have policies in place that protect academic freedom and freedom of expression for faculty, staff, and students. This standard applies to all persons who teach law school courses, regardless of status, and also applies to research activities, publications, law school governance, civil service responsibilities, and teaching. Law school policies must:
(1) Protect the right of faculty, students, and staff to communicate their opinions.
controversial or unpopular, such as through heated debate, demonstrations, or protests;
(2) Prohibit or substantially prohibit destructive acts that impede freedom of expression;
Interfere with the functioning of the Law School or the conduct of approved activities.
Classes, meetings, interviews, ceremonies, and public events as defined in ABA Standard 208.
The School of Law may restrict speech that violates the law, constitutes a genuine threat or harassment, unfairly defames a particular individual, or violates privacy or confidentiality interests. Law schools can reasonably regulate the time, place, and method of expression. These are traditional limits on speech permitted under the current understanding of the First Amendment. Policies must provide due process, including notice, hearing, and appeal rights, to evaluate claims alleging violations of the policy.
The interpretation provided under the new standards explains that “effective legal education and the development of law require free, robust, and uninhibited sharing.”
It incorporates ideas from a wide range of perspectives. To be an effective advocate or counselor, you need to learn how to have open and civil discussions while advancing logical, evidence-based arguments and respecting the differences of opinion of others. However, concerns about civility and mutual respect do not justify prohibiting discussion of ideas because they are controversial or even offensive or offensive to some people. ” as stated in ABA Standard 208, Interpretation 208-6.
There really isn’t much new in the new standard. We just need to make the protections more specific and clear. Much of what the new standards include has been understood for decades to be protected by academic freedom norms at universities, not just law schools. At Loyola, the Academic Freedom Policy is set forth in Chapter 8 of the Faculty Handbook and explicitly applies to faculty (teachers) and students. Our policy clearly states that “honest scholarly inquiry, debate, and debate should not be constrained.” Additionally, faculty, staff, and students must not be harassed or intimidated. It also makes clear that “it is always legitimate to teach or advocate ideas and doctrines.” More specifically, the policy states that “in university classrooms… [is a captive audience, faculty members must exert every effort not to attack nor deride religious or political beliefs of students.” The University administration, specifies the policy, has an obligation to “protect teachers and students from all destructive pressures and harassments.”
Under the new ABA standard, religious schools, like Loyola, may reflect the school’s mission in its policy “so long as such policies are not in violation of the law and are clearly disclosed in writing to all faculty, students, and staff prior to their affiliation with the law school,” according to ABA Standard 208(c)(3). Loyola’s policy emphasizes “respect for both Christian morality and Christian teaching” “without the imposition of any personal religious requirement,” as provided in the Faculty Handbook. Loyola’s policy recognizes the value that non-Catholic scholars and students bring to the University community “to bring authentic universality to Loyola.”
Why the new standard?
A series of high-profile incidents involving disruptions of planned speeches alongside claims of violations of academic freedom or retaliation against faculty, staff and students for protected speech, as at Stanford University and the student heckling of an invited U.S. Court of Appeals for the Fifth Circuit judge. Increasingly, students have engaged in protests and student protests directed at conservative speakers, like Judge Kyle Duncan above, that have generated criticism. At least two presidents of elite institutions have been forced to resign over their handling of protected speech and speech disturbances at their institution. Calls for a ceasefire in Gaza and student protests over the Hamas-Israeli conflict continue to generate discussions as to what exactly academic freedom protects. In addition, some states have enacted legislation banning critical race speech and certain forms of speech related to gender, gender identity and gender orientation, or more generally diversity, equity and inclusion speech.
But scholar Amia Srinivasan in her article with the London Review of Books cautions, “the real danger [to free speech] It’s not coming from complaining students, but from university administrators who too often greedily seek to appease them, sometimes under political pressure. Commenting on the student protests against the speaker, Professor Srinivasan said: “All the examples of students protesting invitations and speakers showing up anyway show that things are just the way they are on a free and intellectually diverse campus. The call for an invitation is above all an expressive act; they often express their opposition not only to the speaker’s views, but also to the political program in which they are participating. It is possible that the student who issued the “question” is intentionally reinforcing it.”
Loyola has been discussing the issue of free speech on campus for some time. In February 2019, I participated in a panel discussion on “Safe Spaces for Ideas: Free Speech on Campus” hosted by the Loyola Student Chapter of the Federalist Society. The panel included a conservative academic who was heckled on campus while trying to give a speech, an attorney representing the Individual Rights Expression Foundation, and myself, a teacher and scholar of the Constitution and the First Amendment. was. Initially, all three of us adopted fairly strong positions about the degree of protection to which speakers were entitled. However, as the discussion progressed, it was clear that there was some disagreement over the degree of protection owed to other speakers and listeners.
My own remarks at that event focused on hate speech. The definition of hate speech is complex. Just as we can debate what constitutes obscenity, opinion, and political speech, and to what extent symbolic acts are speech, and to what extent acts that are expressive in nature are speech? We think as follows. A discussion of what hate speech is.
In this context, hate speech is speech aimed at harming an outsider group. Hate speech is defined as materially and substantively harming or threatening a target person because of membership in a group defined by a hated characteristic such as skin color, race, religion, religion, etc. Refers to expressions that are insulting or degrading. Statements in that speech include (not necessarily an exclusive list) national or ethnic origin, disability, gender, gender identity and sexual orientation.
Jeremy Waldron explained and defended laws against collective defamation and hate speech in a series of lectures published in the Harvard Law Review in 2009. But Waldron acknowledged that existing precedent from the U.S. Supreme Court makes it nearly impossible to litigate the constitutionality of hate speech laws in the United States.
Waldron said: “The problem is not just learning to tolerate ideas we hate… [real] The question concerns the immediate target of abuse. Will they be able to live and raise their children, maintain hope, and dispel their worst fears in a social environment contaminated by these substances? Defending the application of the First Amendment to override will need to answer these concerns. ”
While Waldron and others have articulated liberal defenses of banning hate speech, I would like to discuss here feminist defenses or attacks on the equality-based status quo.
In her book Only Words, Catherine McKinnon writes, “Society is made up of language, so distinguishing between talk of inferiority and the verbal imposition of inferiority may be complicated at the edges; It is abundantly clear in sexual harassment and racial harassment at the heart of…Equality is a “compelling state interest” that can already outweigh First Amendment rights in certain circumstances. In other words, means of expression that practice inequality may be prohibited. …those who wish to avoid subjecting their students to materials that promote inequality, such as scholarly books that purport to document the biological inferiority of women to men…Teachers do not present falsehoods as if they are tentatively true. should not be forced to teach as such. By somehow getting published, their lies became part of the discussion. ”
The role of universities, and in our case law schools, is to enable students who aspire to become professionals to develop communication and analytical tools to effectively communicate and respond to every statement and every idea. That’s it. But what happens when a student or speaker refuses to follow “social rules”?
In a 2005 article published in the Michigan Journal of Gender and Law titled “Dealing with Hate in the Feminist Classroom: Rethinking the Balance,” a law professor said that during a classroom discussion, He explained the problem of hate speech that had arisen. Professor Stanke explained that he was trying to deal with a disturbance from a student who was allegedly yelling, bullying, and harassing other students. During one discussion, he said something like, “We all know that all women are sluts who sleep their way to the top.” He called the authors of critical race articles “black lesbians” who “obviously” cannot understand the law. He yelled at the student, a woman of color, “You’re full of shit.” Students also frequently interrupted Stanch’s classes.
Mr. Stanke explained the difficulty of dealing with student comments in the classroom. In general, the administration and other colleagues considered it best not to interrupt students’ speeches. Stanke argues that non-interference policies overestimate the rights of hate speakers and underestimate the rights of other students to speak and learn. While free and unfettered expression in the classroom is essential to the educational environment, Ms. Stanke agreed, noting that when she interacted with the student during class, she felt that this outweighed the legitimate rights of other students in the class. It was suggested that it would greatly enhance rights.
Apparently, most universities allow for sanctions or bans on speech that significantly interferes with the educational experience of other students. But Stanke said the community was reluctant to deviate from the highly protected norms that the First Amendment enshrines in free speech principles. In his article, Stanke identifies countless ways that law school professors and administrators can control and regulate speech without inviting backlash from free speech advocates. . So, for example, she would argue that a criminal law professor who uses a criminal law casebook that does not include feminist critiques of rape law is regulating speech, including that of her students.
As many established constitutional law scholars, such as UC Berkeley School of Law Dean Erwin Chemerinsky, have argued, there are good reasons to err on the side of strong speech protections.in Silencing conversations about race: Why Arizona’s ethnic studies ban violates equality, I described efforts by state officials to target Arizona’s ethnic studies program because, in their view, ethnic studies constitutes hate speech directed at white people or white culture. In that article, I argued that Arizona’s ban on ethnic studies courses and programs violates not only the First Amendment, but also the Equal Protection Clause of the Fourteenth Amendment. In my view, Arizona’s efforts are currently being overshadowed by efforts by Florida and Texas to ban expression of certain genders and races. Ultimately, the court ruled that Arizona’s speech ban was invalid. I think the speech bans in Florida and Texas are more likely to limit speech based on its content, since this is a basic first-presidential command that courts have long understood. It is. Fixed. In fact, efforts to target expressive speech are borne most by marginalized communities. Protecting free speech and academic freedom protects all speakers, but especially marginalized speakers and voices who often bear the brunt of speech regulation.
M. Isabel Medina, Ferris Distinguished Professor of Law and President of the University Senate, expresses her own views and does not represent Loyola University New Orleans, the School of Law, or the University Senate.
