New ABA President Smith Backs ‘Free Speech’ at Law Schools

Law schools’ efforts to protect “free speech” on campus could become a factor in their accreditation, the American Bar Association’s new leader Mary Smith suggested in an interview.

The organization has proposed new guidelines that would urge law schools to develop freedom of expression policies and address “disruptive conduct.” The move comes after student-led protests broke out at Yale and Stanford’s law schools during conservative speaker events.

The ABA’s jurisdiction in mandating school policies is murky, but the association houses the accrediting body for law schools. The ABA already sets guidelines for law schools in other areas such as curriculum and student evaluations, Smith, who took over as its president on Aug. 8, told Bloomberg Law.

“I don’t know what direction this proposal will [ultimately] take, but we are able to set those guidelines in a number of areas and then base law school accreditation on those guidelines,” Smith said in an interview.

The ABA’s Council of the Section of Legal Education and Admissions to the Bar advanced a proposal in a memo dated August 17 that would require law schools to develop freedom of expression policies. The proposal would add a focus on freedom of expression for both students and teachers which was previously covered under the existing standard’s issue of academic freedom for professors. The proposal is now open for public comment and has no announced end date.

If adopted, the proposal would mandate schools to adopt policies that protect the rights of staff, students and faculty to share ideas that may be considered controversial or unpopular, and prohibit conduct that hinders that speech.

It would also forbid “disruptive conduct” that interferes with the carrying out of law school functions and restrict expression that constitutes a “genuine threat or harassment” or that unjustifiably invades confidentiality interests.

The protests at Yale and Stanford were sparked by events featuring Kristen Waggoner of the Alliance Defending Freedom in March 2022 and Fifth Circuit Judge Stuart Kyle Duncan in April 2023.

ABA President Mary L. Smith

“The treatment of Judge Duncan by SLS staff and students violated Stanford’s stated commitment to freedom of expression, and raises serious questions about free speech and viewpoint diversity at one of America’s premier law schools,” Sen. Bill Cassidy (R-La.) wrote in a letter to Stanford’s president following the incident.

The school later apologized for the incident. Stanford Law’s associate dean for diversity, equity and inclusion resigned four months later.

Liberal students say their protest is free speech but conservative critics say it’s hypocritical if protesters are trying to quell an opinion they might not agree with and are trampling others’ right to free speech in the process.

Fifth Circuit Court Judge James Ho said he won’t hire any more law clerks from Yale Law School because of the school’s handling of the disruptions. He later added Stanford to the list.

Smith, a member of the Cherokee Nation and the first female Native American to serve as ABA president, said the ABA’s legal education arm has been working to develop the proposal over the past year. Smith is a former principal deputy director of the Indian Health Service, a $6 billion federal healthcare organization, and previously had roles at the Civil Division at the United States Department of Justice and the White House.

She said many higher education institutions are already thinking about developing their own policies without a push from the ABA.

“I think free speech is an essential element and core principle in American democracy,” Smith said. “It allows people to offer differing opinions, to protest without violence, to express their opinions and have a marketplace of ideas and it is that freedom that underlies the history of our country.”