What opinions belong on law school campuses? Given that hundreds of aspiring lawyers flock to campuses each year in hopes of learning how to argue and adjudicate cases and controversies, you might expect controversial opinions to be welcome—even necessary—in the legal academy. But recent headlines tell a different story. Conservative speakers, including a federal appellate judge and a constitutional lawyer, have been shouted down by law student protesters at Stanford and Yale in the last two years, prompting two federal judges to boycott the schools in their clerkship hiring. Meanwhile, mounting pressure from the political right to restrict the teaching of critical race theory and other potentially divisive DEI curriculum has spawned legislation in several states, including Florida (“Stop W.O.K.E. Act”), Oklahoma (HB1775), Arkansas (“LEARNS ACT”), and North Dakota (SB2247), restricting certain DEI-related expression.

Amid this ideological tug-of-war comes Standard 208: the American Bar Association’s new attempt to promote academic freedom for law faculty and free expression for both faculty and students. The proposed standard would factor into the ABA’s accreditation decisions a law school’s efforts to protect the “free and robust inquiry, exposition, and exchange of ideas,” which the ABA considers necessary for “effective legal education.” To date, the ABA’s Standard 405(b) has provided only a thin safeguard for academic freedom on law school campuses: it requires each accredited law school to “establish[] and announce[] policy with respect to academic freedom and tenure,” but it includes no implementation requirement. The ABA considered revising this policy in August 2022 to require schools to “adhere to” the policies they established, but the proposal was withdrawn. Then, in September 2022, the ABA’s legal education arm hosted a roundtable discussion on academic freedom and freedom of expression, and it has developed Standard 208 over the year since. Bill Adams, the ABA’s head of legal education and accreditation, denies that the Yale and Stanford controversies catalyzed the proposal, maintaining that the council had recognized a need to revise the academic freedom standard prior to the highly publicized protests. Daniel Thies, chair of the ABA’s Strategic Review Committee, says Standard 208 grew out of concerns about both “the atmosphere on campuses” and the “jurisdictions trying to outlaw the teaching of certain topics, including critical race theory.”

As currently drafted, Standard 208 promises more extensive protection than Standard 405(b). Under Standard 208, public and private law schools will be required to adopt, publish, and adhere to written policies that protect all faculty and other teachers’ academic freedom when “conducting research, publishing scholarship, engaging in law school governance, participating in law related public service activities, and exercising teaching responsibilities, including those related to client representation in clinical programs.” The policies must also afford due process to anyone alleged to violate them. In addition, under the standard, law schools must “adopt, publish, and adhere to written policies that encourage and support the free expression of ideas,” including those “that may be controversial or unpopular,” and those expressed “through robust debate, demonstrations, or protests,” by faculty and students alike. At the same time, the policies must “[p]roscribe disruptive conduct that hinders free expression by preventing or substantially interfering with the carrying out of law school functions or approved activities,”—essentially banning the heckler’s veto. Under the standard, schools can discipline those who engage in disruptive conduct.

The proposal aspires to create space for controversy on campus. In its explanatory Interpretation 208-6, the standard’s drafters note that “concerns about civility and mutual respect” do “not justify barring discussion of ideas because they are controversial or even offensive or disagreeable to some.” According to Thies, the ABA plans to enforce the standard the way it enforces its non-discrimination standard: if a law school fails to write and enforce academic freedom and free expression policies as prescribed, the ABA will send the law school a letter asking for an explanation of the school’s non-compliance, then hold a hearing with the non-compliant school, and at last impose sanctions, up to and including removal from the list of ABA-recognized law schools.

For many faculty and students, Standard 208’s promotion of free expression is a welcome change, but exceptions built into the standard cast some doubt on its efficacy. Some of the exceptions are unsurprising: the standard affords schools discretion to restrict expression that “violates the law” or “falsely defames” specific people, and to regulate the “time, place, and manner of expression.” More fraught, though, are the standard’s promise that law schools can restrict expression that “constitutes a genuine threat or harassment”—terms the standard does not define—and its provision allowing law schools to adopt policies that “reflect the law school’s mission, including a religious mission,” if and only if those policies do not violate the law and are clearly disclosed, in writing, to all prospective faculty, staff, and students. Legal scholars and commentators have sounded the alarm that these carve-outs may open the door for subjective and unequal implementation of Standard 208.

In a panel hosted by the Federalist Society on September 18, Professor Nicole Garnett of University of Notre Dame Law School, Professor Joshua Kleinfeld of Northwestern University Pritzker School of Law, and Professor Benjamin Eidelson of Harvard Law School expressed both appreciation for and concern about Standard 208. Professor Kleinfeld welcomed the standard, noting that he and “an overwhelming majority” of his colleagues “feel unfree in the classroom” and nagged by a “pervasive sense that discussions are ringed by taboos,” as students and faculty have become more ideologically unified on the left. He remained concerned, however, that universities’ overarching DEI policies might trump Standard 208 and recommended that a provision be added requiring law schools to ensure that discourse protected by Standard 208 would not be subject to DEI investigations, which he viewed as sanctions. He also argued that the provision allowing law schools to adopt policies reflecting their institutional missions should apply to religious schools only. Otherwise, he reasoned, secular law schools may try to restrict potentially offensive speech by claiming to have “missions” of equity and inclusion.

Professor Garnett warned that, in the absence of a definition for “harassment” within the standard, a student’s controversial expression that makes another student uncomfortable could be subjectively deemed “harassment” and silenced under the standard. She recommended that an objective reasonableness test should apply when interpreting “harassment” and called for clarification on how the standard would interact with Title VI and Title IX. To be truly effective, she suggested, free expression protections would also need to extend beyond campuses to digital conversations between groups of law students, on social media and in GroupMe chats. She noted that while policies for academic freedom could prove helpful, more recruitment of ideologically diverse faculty is key to ensuring a truly free exchange of ideas, and so faculty members should encourage more conservative and libertarian students to enter the academy. Professor Eidelsen similarly doubted whether Standard 208, as drafted, would get to the root of the matter: he reasoned that the chill on conservative speech in some law school classrooms arises not from students’ fear of disciplinary action by their schools, but from their fear of becoming social pariahs among liberal peers. Still, all three scholars applauded the ABA for recognizing the importance of academic freedom and free expression and taking a step to protect them.

The comments submitted since the notice and comment period began on August 30 reflect a similar generalized support for Standard 208’s goals and concern about its specifics. Three main critiques emerged repeatedly in the published comments: first, that the policy must be extended to other law school staff, especially law librarians (see comments of Bonnie Shucha, June Hsiao Liebert, Society of American Law Teachers, and Kim Nayyer); second, that the standard’s ban on vaguely defined “disruptive conduct” will “unreasonably censor” or have a “chilling effect” on the student demonstrations that are a quintessential “part of the university environment” (see comments of April Hurley, CUNY students, and Hiram A. Meléndez-Juarbe); and third, that allowing schools to “restrict expression that violates the law” could have the unintended consequence of extending “an open invitation to hostile legislatures to restrict what is taught in law schools,” and “prevent faculty from teaching truthfully about racial injustice” through state legislation like Florida’s Stop W.O.K.E. Act (see comments of the Clinical Legal Education Association and American Association of University Professors).

How and to whom schools must publicize their expression policies was also a point of contention among commenters. Several faith-based law schools, including Notre Dame and Brigham Young University, implored the ABA to eliminate the requirement that religious law schools take the extra step of proactively disclosing their speech policies to all prospective students, faculty, and staff, since that disclosure “would risk painting the schools’ mission and policies in a negative light” (Comments at 86). Faith-based schools, they argued, “should not bear any additional burden beyond that generally applicable publication requirement” (Comments at 87). By contrast, Professor William Ford at UIC Law called for greater disclosure and transparency across the board. He suggested that law schools should be required to include language incorporating their academic freedom policies into all of their faculty contracts (Comments at 80-81).  Lastly, the lack of a definition for “harassment” stuck out to commenters. William Hodes, an emeritus law professor at Indiana University who congratulated the ABA on Standard 208, echoed Professor Garnett’s concern about the potential overbreadth of the “harassment” carve-out and proposed that it should be narrowed to mean “harassment of one or more identifiable individuals” (Comments at 123).


The ABA Council of the Section of Legal Education and Admissions to the Bar will revisit Standard 208, and the comments submitted about it by September 29, at its November 2023 meeting. If the proposed standard passes at that meeting, the ABA’s House of Delegates will have the opportunity to accept or reject it at its February 2024 meeting, though the Council will retain the final vote on whether to implement it. Will Standard 208 promote challenging dialogue on law school campuses? Or will the exceptions swallow the rule? Time will tell. 

Note from the Editor: The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the author. We welcome responses to the views presented here. To join the debate, please email us at [email protected].