chevron-down Created with Sketch Beta.
February 05, 2024

ABA House votes opposition to state restrictions on teaching race, gender among new policies

The American Bar Association House of Delegates (HOD) approved new policy against laws that limit teaching about race or gender during a one-day meeting on Feb. 5 that concluded the 2024 Midyear Meeting in Louisville, Kentucky.

The ABA House of Delegates, the association's policymaking body, convened Feb. 5 at the 2024 Midyear Meeting in Louisville.

The ABA House of Delegates, the association's policymaking body, convened Feb. 5 at the 2024 Midyear Meeting in Louisville.

American Bar Association photo

The new policy, approved by a voice vote, also opposes bans on books that cover those subjects. It specifically expressed opposition of any attempt by governmental entities to restrict the teaching, inclusion of studies or access to resources on the “experiences, roles and contributions” of any individual or group on the basis of such areas as gender, race and ethnicity.

The HOD, which is the association’s 597-member policymaking body, also approved nearly 30 other new policies that include requiring free-speech policies for the nation’s law schools, encouraging written policies for the removal of prosecutors for misconduct and urging governmental entities to follow federal reporting guidelines related to deaths in criminal custody situations.

Resolution 505 cited Florida’s 2022 Stop W.O.K.E. Act, which included measures prohibiting teachers from discussing matters related to race, color, national origin or sex ― effectively curtailing any discussion of slavery and marginalization in American history. In Texas, an appointee of the governor a few days ago put the brakes on American Indian/Native studies courses. In South Carolina, a bill that would limit certain teachings on race in public schools and allow parents to challenge educational materials is moving through the state’s House of Representatives.

The ABA resolution, said Darcee Siegel of Florida, “fights back against the dismantling of public education.”

The law school free speech standard spelled out under Resolution 300 establishes Standard 208 for the nation’s 196 law schools now accredited by the Council of the ABA Section of Legal Education and Admissions to the Bar, which serves as an independent arm of the ABA for the approval of law schools. The new standard requires schools to adopt a policy that would allow faculty, students and staff “to communicate ideas that may be controversial or unpopular, including through robust debate, demonstrations or protests,” and would forbid activities that disrupt or impinge on free speech. But it wouldn’t impose specific policy language.

Law school faculty have long enjoyed protections for academic freedom. But the new standard is the first to address free speech for the entire law school community. The move follows student protests at Stanford Law School and Yale Law School, which disrupted controversial conservative speakers, and comes amid campus tensions in the aftermath of the conflict in the Middle East, which began with Hamas’ attack on Israel on Oct. 7, 2023.

The HOD also approved Resolution 177c, which increases general member dues by $45 across each of five categories. With inflation, ABA dues are 40% less than a decade ago, ABA Treasurer Frank Langrock said, when the ABA last raised dues. The new dues structure, beginning Sept. 1, would range from $120 to $495.

Other new ABA policies approved by the HOD include:

  • Resolution 501, which affirms the essential role of prosecutorial discretion and independence in the criminal justice process and would prevent the removal, suspension or substitution of elected prosecutors for personal or partisan reasons or without due process. In Florida, an elected former prosecutor was ousted by the governor allegedly for statements he signed in support of transgender care and abortion rights, and in January a federal appeals court allowed his suit against the governor to proceed.
  • Resolution 508, which asks all educational authorities to establish and implement policies that recognize that all students, including transgender, gender-nonconforming and nonbinary students, have a reasonable and protected expectation of privacy when determining how and with whom to share information about their gender identity.
  • Resolution 506, which urges governmental entities to follow the federal Death in Custody Reporting Act and ensure that there is an independent investigation into the cause of any death that occurs in a correctional institution or in the custody of law enforcement.
  • Resolution 604, which asks Congress to pass legislation to establish a President’s Award for Civic Engagement to reward and recognize students in grades 5 through 12 who display outstanding civic leadership and leadership in their communities. It also urges the U.S. Department of Education to establish national criteria for the award.
  • Resolution 703, which approves the Uniform Collaborative Law Rules and Uniform Collaborative Law Act that provides an additional tool in the alternative dispute resolution toolbox. While a similar measure failed in the HOD more than a decade ago, the approach has been adopted by 23 jurisdictions nationally and the voluntary concept is more generally accepted today.
  • Resolution 402, which endorses the Summary of Recommendations and Guidance from the Report and Recommendations of the New York State Bar Association Task Force on Advancing Diversity. The report provides a broad roadmap of how stakeholders in the legal profession should move ahead after the U.S. Supreme Court decision in June 2023 upending 45 years of affirmative action case law.
  •  Resolution507, which opposes limitations on providing patient care, including abortion, on any health care provider or hospital that receives Medicare funding to address a patient’s emergency medical condition.

For HOD action on all policy resolutions click here. The next HOD meeting is scheduled for early August in Chicago.