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College of Law College of Law

Academic Freedom and Freedom of Expression Policy

I. Purpose and General Principles

The ABA Section of Legal Education and Admission to the Bar requires all law schools to adopt a policy protecting academic freedom and freedom of expression (Standard 208). The Academic Freedom and Freedom of Expression (AFFOE) policy set out below enacts ABA Standard 208 and is designed to reinforce the ongoing commitment by WVU College of Law (the Law School) to the principles of academic freedom and freedom of expression. Statements from professional academic and credentialing groups have long emphasized the critical importance of academic freedom to the university’s mission in creating and disseminating knowledge, fostering debate and serving the wider community. 1 As stated in the 1940 AAUP Statement of Principles on Academic Freedom and Tenure:

The common good depends upon the free search for truth and its free exposition. Academic freedom is essential to these purposes and applies to both teaching and research. Freedom in research is fundamental to the advancement of truth. Academic freedom in its teaching aspect is fundamental for the protection of the rights of the teacher in teaching and of the student to freedom in learning. 2

The Law School seeks to foster a culture of research, inquiry, and robust debate to advance the project of knowledge creation, teaching and service. 3 Board of Governors Faculty Rule 4.1 states the principle of academic freedom in appropriately broad terms: “Each Faculty Member and student shall remain free to inquire, study, evaluate, discuss, investigate, teach, conduct research, and publish.” 4 Law School faculty members may conduct research and publish the results of such research and are entitled to freedom in the classroom, free from institutional censorship and discipline, provided that they fulfill their academic duties and conditions of employment. Additionally, when full and part-time faculty speak or write as private citizens outside the institution and declare such private status, they shall be free from institutional censorship or discipline. 5 Faculty members, and all members of the academic community, have the responsibility to protect, defend and promote academic freedom. 6

Moreover, the Law School is committed by federal and state law to protect the constitutional right to freedom of expression: “The West Virginia University Board of Governors acknowledges a First Amendment right of free speech and assembly and encourages open dialogue as an opportunity to expand the educational opportunities of our campus communities.” 7

The following AFFOE policy provides rules and standards for students, faculty and staff at the West Virginia University College of Law.

II. Academic Freedom Policy

The Law School is committed to academic freedom, which is essential to the idea of the university. Accordingly, all full and part-time faculty, as well as all others teaching in law school courses, as well as students and staff, are entitled to academic freedom, which is defined as freedom from institutional censorship or discipline, while pursuing the following covered activities: conducting research, publishing scholarship, engaging in law school governance, participating in law related public service activities, 8 curating library collections and providing information services, and exercising teaching responsibilities, including those related to client representation in clinical programs.

The academic freedom policy also applies to non-faculty when they are engaging in a covered activity, including, for example non-faculty librarians involved in collection development activities or providing information services, as well as students and staff, or guest lecturers or speakers who teach a single class session or portion of a class session. Additionally, when full and part-time faculty speak or write as private citizens outside the institution and declare such private status, they shall be free from institutional censorship or discipline.

That members of the academic community or others disagree with or are offended by a faculty member’s expression of views, or the views of others teaching in law school courses, or those of non-faculty engaging in a covered activity, cannot alone be grounds for imposing sanctions. No person shall be subject to discipline based on the person’s speech if the basis for the discipline is pretextual or the level of discipline is disproportionate to the level of the harm created. The Law School may restrict or prohibit expression that violates state or federal law, including expression that falsely defames a specific individual, speech that constitutes a genuine threat or harassment, or that unjustifiably invades substantial privacy or confidentiality interests.

A. Due Process for Alleged Significant Adverse Actions

Significant adverse decisions (such as termination of employment, expulsion or suspension of a student, or denial of tenure) imposed on a full-time faculty member, or other Law School employee, or law student engaging in a covered activity, for conduct alleged to be protected by academic freedom, may be appealed by the normal university procedures outlined in the University’s Board of Governors Rules and student and faculty handbooks. Additionally, the West Virginia Public Employees Grievance Board, established by W. Va. Code 6C-2, provides a three-level review process, including a conference or hearing, a mediation, and an appeal to a state appointed administrative law judge. 9

For any adverse actions imposed for the conduct of a faculty member, or other Law School employee, or law student that result from engaging in covered activity or conduct allegedly protected by academic freedom that does not rise to the level of a significant adverse action, the faculty member, law student, employee or invited speaker may invoke the procedures in II.B below.

B. Due Process for Alleged Lesser Sanctions

Any non-WVU-employee, such as an invited speaker, who engages in a covered activity and believes that a violation of the AFFOE has occurred may request that their University sponsor 10 (whether student or faculty) file a complaint with the Free Speech & Academic Freedom Committee (See Section IV below). Likewise, any faculty member, or other Law School employee or law student engaging in a covered activity who believes a violation of the AFFOE has occurred that does not rise to the level of serious sanction as outlined in II.A, may file a complaint with the Free Speech & Academic Freedom Committee (See Section IV below).

III. Freedom of Expression Policy

The Law School is committed to the principle of freedom of expression, which is a fundamental constitutional right. 11 The Law School encourages and supports the free expression of ideas. Faculty, students, and staff have the right to communicate ideas that may be controversial or unpopular, including through robust debate, demonstrations, or protests. This policy also protects the right to free expression of speakers invited by the Law School or by student groups, even if the invited speaker’s ideas are controversial, offensive, or objectionable. Opposition to an event or a speaker can and should be expressed through rational discussion, debate and argument, which are critical skills to hone for future attorneys, and are core principles of a free society. 12

The AFFOE policy does not compel the Law School to grant a platform for speech to any individual from outside the Law School community who desires one, nor is the Law School required to allow any individual or ad hoc group of students or staff to invite a speaker to campus. The invitation of speakers to the law school by law students is covered by the Law Student Invited Speaker Policy (See Section V. below)

Moreover, to ensure that robust freedom of expression does not interfere with the educational environment or the rights of others, the Law School reserves the right to impose reasonable time, place and manner restrictions on speech at the Law School by proscribing or limiting activities or speech that substantially interfere with regularly scheduled classes, events, ceremonies, or normal and essential operations. 13 Similarly, the Law School may proscribe or limit speech or other activities that block audience view of any event or that make sufficient noise to hamper a speaker or performance from being heard, including “heckling” the speaker, or any other activity that impedes any group’s lawful assembly or expressive activity, regardless of viewpoint. 14 State law requires any time, place or manner restriction to be content neutral and narrowly tailored to serve a significant state interest. 15 The Law School may restrict or prohibit expression that violates state or federal law, including expression that falsely defames a specific individual, speech that constitutes a genuine threat or harassment, or speech that unjustifiably invades substantial privacy or confidentiality interests.

IV. Free Speech & Academic Freedom Committee

Any faculty member, or others teaching in law school courses, or non-faculty engaging in a covered activity, who believes the Law School has infringed their rights under the AFFOE policy by imposing or threatening sanctions that do not rise to the level of a serious sanction as outlined in II.A-B, may file a complaint. The alleged incident shall be reported in writing in a timely manner to the Associate Dean for Faculty and the Dean of the College of Law. In the event of a claimed violation of the AFFOE policy, the Dean shall appoint an “Ad Hoc Free Speech and Academic Freedom Committee,” with an even number of full-time faculty members of the College of Law plus a law student member selected by SBA. The committee shall elect a faculty chair from among its members. The committee may conduct factual investigation to the extent it deems necessary. If it finds a violation, it will issue a report to the Dean and faculty explaining its reasoning and incorporating non-binding recommendations to the Dean to guide decision-making going forward. The matter should be resolved in a timely manner and no later than the semester after the alleged policy violation occurred. Moreover, any faculty, student or staff member who believes that the Law School has infringed that person’s right to free expression under the AFFOE Section III may bring that complaint to the Ad Hoc Free Speech and Academic Freedom Committee, following the procedures outlined above.

V. Law Student Invited Speaker Policy

Only student organizations who are properly registered through WVU Engage and the College of Law may invite speakers to the College of Law. Registered student organizations must first consult with their faculty advisor about inviting a speaker to campus. The organization must provide their advisor with the name of the speaker, the topic of discussion, the proposed date and time of the speaking engagement, and the location of the speaking event. Student organizations must determine if this is an event that the public may attend, in addition to the College of Law community.

After consulting with their faculty advisor, the student organization must also consult with and notify the Assistant Dean for Student Services and Engagement and must provide the Assistant Dean with the speaker’s name, topic of discussion, proposed date and time, and location on campus of the proposed speaker.

The student organization must also consult with the College of Law Building Manager to review the availability of rooms and to reserve a room, arrange for AV services and other support, and ensure that their proposed date does not conflict with other events already scheduled at the College of Law.

The student organization who hosts the speaker must comply with all university policies and procedures regarding the use of university facilities and the conduct of events on campus. Student organizations will consult with the Assistant Dean for Student Services to determine appropriate security measures for the event.

Any expenses related to the speaker's appearance, including travel, accommodations, and honorarium, and catering/refreshments must be covered by the student organization inviting the speaker. See separate policy on funding for student organization events. The College of Law reserves the right to cancel any scheduled event if it determines that the safety or well-being of the campus community is at risk, or if the event violates university policies or local laws.

Any individual or organization using College of Law facilities must comply with all applicable federal, state, and local laws, as well as all university policies and procedures. Student organizations are encouraged to review and must comply with BOG Rule 1.8 and the AFFOE policy.

All requests for use of the College of Law space to host a speaker must be made at least 30 days in advance of the proposed event date. The College of Law reserves the right to deny requests for use of its facilities if it determines that the proposed event would pose a threat to public safety, would disrupt normal university activities, or would violate university policies or local laws. Law School administrators do not approve or disapprove events based on the content of the event or the views of the speaker(s). However, without vetting speakers or limiting students’ or student organizations’ ability to invite speakers of their choice, Law School administrators may offer advice and counsel to students and student organizations about event design and management.

Use of College of Law facilities is subject to availability, and priority is given to College of Law academic activities, College of Law-specific activities, and WVU-sponsored events.

The individual or organization using College of Law facilities is responsible for ensuring that the event is conducted in a safe and appropriate manner, and for ensuring that the event does not disrupt normal academic activities or cause any damage to university property.

Alcoholic beverages may be served on campus only with prior approval from the appropriate university office and in compliance with all applicable laws and university policies. Any student organization who seeks to serve alcohol at their event must work with the College of Law Events Manager to ensure that all requirements are met, and proper catering is ordered.

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