A New ABA Rule Is A Step Forward For Free Speech At Law Schools

Law schools that run roughshod over academic freedom and free speech are putting their ABA accreditation at risk.

Columbia Law School (photo by David Lat).

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A version of this article originally appeared on Bloomberg Law, part of Bloomberg Industry Group, Inc. (800-372-1033), and is reproduced here with permission.

I’m trying something new and fun for this column: I’m adding footnotes to discuss interesting issues that I didn’t have the space to discuss in the Bloomberg Law version of the piece. So even if you read the original column on Bloomberg Law, check out the footnotes here, which you can think of as a form of “bonus content” for Original Jurisdiction subscribers. Enjoy!

When it comes to free speech and intellectual diversity, U.S. law schools continue to face challenges. On January 23, the Law School Student Senate at Columbia Law School voted to deny official recognition to Law Students Against Antisemitism (LSAA), a student group seeking to “raise awareness and educate about both historical and contemporary antisemitism.”

Nine organizations requested official recognition from the Senate this year, and Law Students Against Antisemitism was the first to get rejected. Why? According to a letter from the Foundation for Individual Rights and Expression (FIRE) to the Student Senate president, the rejection appeared to rest on objections to LSAA’s definition of antisemitism, which some pro-Palestine students opposed. It therefore was, in the words of Professor Steven Lubet of Northwestern Law, “a blatant case of viewpoint discrimination.”

Columbia Law’s Student Senate later reversed itself and recognized LSAA. But the fact the reversal was even necessary—and didn’t happen until after the decision was widely criticized and FIRE intervened—reflects an ongoing free-speech problem in U.S. law schools.¹

This problem attracted the notice of the American Bar Association, the leading accreditation body for law schools—and the ABA took action. On February 5, the ABA House of Delegates passed a resolution adopting Standard 208, “Academic Freedom and Freedom of Expression.”

Standard 208 requires law schools, as a condition of accreditation, to “protect the rights of faculty, students, and staff to communicate ideas that may be controversial or unpopular, including through robust debate, demonstrations or protests.” It is, as noted in the ABA Journal, “the first accreditation standard to address free speech for the entire community within law schools”—not just for faculty, who were already covered by standards protecting academic freedom.

ABA accreditation matters greatly to law schools—all 50 states recognize graduation from an ABA-accredited law school as meeting the educational requirements to sit for the bar examination. And dozens of state bars require graduation from an ABA-accredited school for bar admission. Losing ABA accreditation would be a disaster for a law school.²

Standard 208 was welcome news to FIRE, a leading defender of free speech on university campuses that has weighed in on a number of free-expression controversies at law schools.

“FIRE is supportive of the ABA’s Standard 208,” said Mary Griffin, senior program officer for policy reform at the Foundation. “We were pleased to see the House of Delegates approve the proposed standard at their recent meeting.”

I reached out to law school administrators and professors who specialize in free speech and the First Amendment, and they similarly supported the new requirement.

“Standard 208 is a desirable reaffirmation of free-speech principles,” said Erwin Chemerinsky, dean of the UC Berkeley School of Law and a leading scholar of constitutional law. “It’s in accord with what almost all law schools already do. But especially in these difficult times, where so many free speech issues have arisen, it is desirable for the ABA and the law schools to make clear their commitment to freedom of speech.”³

The Standard requires law schools to “adopt, publish, and adhere to written policies” that “protect academic freedom” and “encourage and support the free expression of ideas.” It contains certain baseline requirements for what those policies must include—for example, they must “[p]roscribe disruptive conduct that hinders free expression,” like the ugly March 2023 protest against Judge Kyle Duncan at Stanford Law School. But the Standard doesn’t provide specific language for schools to adopt.⁴

And this is a good thing—as explained to me by Nadine Strossen, a former president of the American Civil Liberties Union who taught constitutional law for many years at New York Law School.

“Law schools will need to propose their own specific policy language to comply with the Standard—and I hope they use this as an important educational opportunity,” Strossen told me. “Faculty, students, and staff should study, analyze, and debate the details of proposed policies—which will give them a greater feeling of buy-in when the policies are finally issued, increasing their sense of legitimacy.”⁵

Professor Eugene Volokh of UCLA Law School, another expert in First Amendment law, said Standard 208 will also help deans navigate free-speech controversies in the future.

Deans and other administrators often face considerable pressure—sometimes from the right, from politicians like Governor Ron DeSantis of Florida, and sometimes from the left, from student activists—to suppress certain controversial or unpopular viewpoints. Standard 208 increases their ability to resist such pressure: caving to it would endanger accreditation, and losing accreditation would be a death sentence for many law schools.

“The Standard is another tool in the toolbox of a dean who wants to protect free speech and academic freedom,” Volokh told me. “The dean can tell student activists, ‘Look, do you want us to lose our accreditation?’”

Despite all its virtues, Standard 208 is not a panacea. Perhaps most importantly, it doesn’t address the significant social pressures on faculty and students to engage in self-censorship on controversial issues.

“I’ve had a lot of students complain to me that they are reluctant to speak out in class—not because they’re afraid of discipline, but because they’re afraid their classmates will ostracize them,” Volokh said. “But you can’t have a rule to stop that.”

To take another example, several student groups at Berkeley Law adopted a bylaw that bans hosting speakers with Zionist beliefs. This fact is now part of a lawsuit against Berkeley Law—which accuses the school of violating federal antidiscrimination law by “fail[ing] to confront, much less combat, the antisemitic environment” on its campus.

But as Berkeley Dean Chemerinsky said, “The law is clear that student groups have a First Amendment right to choose speakers based on their views. Standard 208 does not address this, and it cannot override the First Amendment.” (Note that the bylaw bans Zionist speakers, not Jewish speakers—and there are some self-identified Jewish anti-Zionists, like the members of Jewish Voice for Peace.)⁶

At the end of the day, while Standard 208 is a commendable step forward, free speech and academic freedom are ultimately about culture. Law schools must instill a culture of free speech and academic freedom, one in which people tolerate and even affirmatively seek out opposing viewpoints. And that can’t be done by rules and standards alone; it needs to be done by changing hearts and minds.

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1. After the publication of my column on Bloomberg Law, I received a letter from the Columbia Law School Senate Executive Board. According to the Board, the initial rejection of LSAA was based primarily on a problematic provision in the LSAA constitution pertaining to the removal of board members, not the constitution's definition of antisemitism—and once this issue was addressed, LSAA was approved.

2. Professor Eugene Volokh offered this caveat about Standard 208: it’s a positive step to tie protection of free speech and academic freedom to ABA accreditation, “to the extent that we want to have accreditation by the ABA.”

There are reasonable arguments that (a) we should have fewer rather than more accreditation requirements, (b) we should replace the ABA as the major accrediting body, or (c) we shouldn’t have accreditation at all—i.e., we should have more of a free-market approach to legal education. But the reality is that the ABA dominates the accreditation space, and that’s not changing anytime soon—and there are tons of other accreditation requirements, so there might as well be one protecting free speech and academic freedom.

3. Professor Volokh offered additional thoughts on why Standard 208 is desirable:

“The Standard makes a lot of sense because even setting aside whatever you might think about academic freedom’s benefits for society or the advancement of knowledge, the job of law schools is to train lawyers. And the job of lawyers is to be able to understand the best arguments for all sides of an issue. In order to do that, one needs to have a culture of academic freedom and free speech. To the extent that law schools are interfering with that or punishing students for raising particular perspectives or allowing them to be shut down by hecklers, that tends to make the students worse lawyers.”

4. Standard 208(c)(3) provides that “[c]onsistent with this Standard, a law school may…. Adopt policies on academic freedom and freedom of expression that reflect the law school’s mission, including a religious mission, to the extent such policies are protected by the First Amendment of the United States Constitution and are clearly disclosed in writing to all faculty, students, and staff prior to their affiliation with the law school.”

How many schools will exercise this prerogative? Professor Volokh believes that few will, since doing so might make them look “outside the mainstream”—and possibly reduce enrollment. Perhaps reflecting this concern, deans of six faith-based law schools raised the following objection to Standard 208(c)(3):

“The language of this provision seems to require—or at a minimum, could be construed to require—actual, proactive notice of a faith-based law school’s mission-infused speech policies to every prospective student and employee. In other words, the requirement of clear disclosure in writing prior to affiliation with the school seems to demand more than the simple publication requirement made applicable to every law school by Proposed Standard 208(a) and (b). Requiring a faith-based law school to take the extra step of proactively disclosing its mission-aligned speech policies to every prospective student and every prospective member of the faculty or staff would risk painting the school’s mission and policies in a negative light—as if the school’s infusion of its mission into its policies is a defect about which prospective members of the law school community must be alerted.”

5. In our interview, Professor Strossen highlighted other aspects of Standard 208 that she likes: (a) its protection of both free speech and academic freedom, which are related but not the same thing; (b) its emphasis on “due process… to assess any claim of a violation of the academic freedom policies”; and (c) its requirement that schools “[p]roscribe disruptive conduct that hinders free expression,” which makes clear that disruptive protests themselves are not protected expression.

6. Here’s interesting additional information on this point, from my exchange with Dean Chemerinsky:

“Law student groups have the First Amendment right to choose speakers based on their views. That has been my position—and that of the campus—since the issue arose. But when law journals, for which students receive academic credit and which are published by the Regents of the University of California, adopted a bylaw that they would not publish authors who support Israel, I saw that as quite different. It is the law school that awards credit and publishes the journals. I informed them that they could not continue to receive academic credit or be published by the Regents if they restricted authors in that way. It is different when the law school is awarding credit or deciding what to publish. The journals that adopted the bylaw than changed it.”