On February 5, at its midyear meeting in Louisville, KY, the American Bar Association’s House of Delegates adopted a new accreditation standard (Standard 208) requiring that law schools adopt, publish, and adhere to academic freedom and free expression policies, afford due process to those accused of violating academic freedom policies, and proscribe disruptive conduct that hinders free expression. While historically, law faculty have enjoyed academic freedom protections (such as Standard 405(b)), Standard 208 is “the first accreditation standard to address free speech for the entire community within law schools.” Now, the 196 law schools accredited by the ABA must promulgate policies allowing not only faculty, but also students and staff, “to communicate ideas that may be controversial or unpopular, including through robust debate, demonstrations or protests.” As previously discussed on this blog, the ABA plans to enforce the standard by sending law schools that fail to comply letters asking for explanations of their non-compliance, then holding hearings with non-compliant schools, and at last imposing sanctions, which could include accreditation withdrawal.

Standard 208 emerged out of concerns over both the disruption of guest speakers on law school campuses and the trend in state legislatures toward restricting how certain academic subjects, like critical race theory, are taught. Daniel Thies, a member of the ABA’s Council of the Section of Legal Education and Admissions to the Bar, told Reuters that both trends “reflect an urgent threat to the training of lawyers.” Sheltering law students from differences of opinion will prove poor preparation for careers dedicated to arguing cases, the Council reasoned, and so Standard 208 attempts to protect controversy on campus. Since its notice-and-comment period in August and September, Standard 208 has become even more salient, as in recent months protests surrounding the Israel-Hamas war have mounted on law school campuses around the country, including at HarvardStanfordYale, and Columbia.

Initial reactions to the ABA’s policy have been mixed. Legal commentator Joe Patrice has argued that while “[a]s a text, the resolution is benign,” it is ultimately a “vague, toothless statement[]” that “makes everything worse” because it provides school administrators no clarity on where to draw the line between free speech and harassment. This distinction is especially fraught in the context of anti-Israel protests; several universities are currently facing Congress’s ire for allegedly failing to quash antisemitic speech and conduct. Professor Nicole Garnett of Notre Dame Law School raised a similar concern on a Federalist Society panel last September, explaining that while she appreciated the ABA’s recognition of the importance of free expression, the absence of a definition of “harassment” in Standard 208 left it vulnerable to overuse to silence students with controversial opinions; she recommended applying an objective reasonableness test when interpreting “harassment” under the standard. On the other hand, legal commentator Mark Pulliam has described Standard 208 as “a breath of fresh air” that can help stem the tide of “intolerance, de facto censorship, and speech suppression” in the legal academy. Likewise, Congresswoman Virginia Foxx (R-NC) applauded the new standard, celebrating that it would put “more scrutiny on law schools that fail to enforce policies that allow for an open exchange of ideas without the threat of reprisal” and so would protect free speech and academic freedom, two “hallmarks of a free society.”

Time will tell what impact Standard 208 has on law schools’ climate, and whether the standard’s lack of clarity on what constitutes “harassment” will be an exception that swallows the rule. But at minimum, the standard will signal to the legal academy that the free expression of varied opinions—whether they are mainstream or experimental, controversial, or offensive—is an essential ingredient to forming legal minds capable of reasoned argument and critical thinking. And that’s a step in the right direction.

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].