Surfing Past the Pall of Orthodoxy: Why the First Amendment Virtually Guarantees Online Law School Graduates Will Breach the ABA Accreditation Barrier


The impact of the constitutional dilemma created by the ABA’s aversion to Internet schooling is widespread. Currently, 18 states and 2 U.S. territories restrict bar exam eligibility to graduates of ABA-accredited law schools. Additionally, 29 states and 1 U.S. territory restrict admission to practice on motion to graduates of ABA-accredited law schools.

Although numerous lawsuits have been filed in ultimately failed efforts to strike down bar admission rules that restrict eligibility to graduates of ABA-accredited law schools, none has challenged the ABA-accreditation requirement based on the First Amendment’s prohibition on media discrimination. This Article makes that case.

Despite accelerating technological advances, the ABA still refuses to accredit online JD programs and Internet law school. But states that restrict bar eligibility to graduates of ABA-accredited law schools not only punish graduates of online JD programs for daring to have engaged in online educational communication, they necessarily devalue educational communication and association over the Internet. This, in turn, predictably diminishes the amount of protected Internet speech and association in favor of traditional face-to-face communication and association.

Such media discrimination is vulnerable to First Amendment attack under theories that seek to protect liberty of circulation, academic freedom and access to the legal profession. Accordingly, states should meet their constitutional obligations and furnish graduates of online JD programs with an alternative pathway to licensure.


Administrative Law | Civil Rights and Discrimination | Communications Law | Computer Law | Constitutional Law | Education Law | Internet Law | Law | Law and Society | Legal Profession | Science and Technology Law | State and Local Government Law

Date of this Version

January 2007