Table of Contents Introduction I. Academic Freedom, Institutional Deference, and the First Amendment A. Teaching Civility and Professionalism B. Academic Freedom and Institutional Deference C. From Tinker to Mahanoy D. The Limits of Curricular Control: Hazelwood II. Professionalism Exception A. Professional Standards Exception B. Applying Professionalism Standards in Law Schools III. Observations and Recommendations A. Curricular Regulations B. Professionalism at Events C. Regulating "Off Campus" Speech Conclusion
Introduction
Soon after students at Stanford Law School disrupted Judge Kyle Duncan's speech at a student-sponsored Federalist Society event in March 2023, (1) Dean Jenny Martinez issued a statement explaining why campus rules prohibiting the substantial disruption of a campus event are consistent with the First Amendment. (2) After an extensive analysis of the public forum doctrine, her memo also argued that "[l]ively, candid, civil, and evidence-based discourse in disagreement is not just positive for our community, constituted as it is in difference, it is a professional duty." (3) While Martinez unequivocally condemned the disruption of campus events, she gave unclear guidance about "offensive, vulgar, or provocative" expression at campus events. (4) She said that such speech is "perhaps constitutionally protected" but "it is within our educational mandate to address with students the norms of the legal profession." (5)
This Essay will take seriously Dean Martinez's appeal to professional norms and broadly examine whether and when the regulation of law students' unprofessional speech would be consistent with the First Amendment. (6) In assessing the permissibility of civility regulation, this Essay will consider not just the regulation of student expression at campus events, which was the focus of the Martinez Memo, but also the full range of situations in which students might engage in unprofessional expression--from the classroom to social media. This inquiry is particularly timely because the ABA has adopted a new accreditation standard requiring law schools to have policies protecting academic freedom and free expression. (7)
This Essay begins with an examination of the First Amendment framework for evaluating the speech rights of university students. Part I examines the Court's tendency to defer to universities when they are engaging in core curricular activities. That deference diminishes, however, as universities claim constitutional leeway when engaging in activities less tightly connected to the curriculum. Part II takes a close look at the developing "professionalism" doctrine that permits schools to regulate student expression that is inconsistent with the profession for which the student is studying. This Part contends that the professionalism doctrine is deeply troubling, but if courts continue to recognize it, they should limit its application to narrow circumstances. Specifically, it is essential that the relevant professionalism standards would, in fact, support the speech regulation and that those standards are themselves constitutional. In order to protect vigorous advocacy, these rules are generally constitutional only when they regulate speech directly connected to the practice of law and not when they are used to protect the "dignity" and reputation of lawyers and the legal profession Part III offers suggestions about how law schools can teach their students about professionalism and civility in the practice of law consistent with the analysis in the Essay.
I. Academic Freedom, Institutional Deference, and the First Amendment
A. Teaching Civility and Professionalism
Calls for more civility in the legal profession are nothing new. In 1975, then-Chief Justice Burger asked law schools to teach civility, arguing that law professors are in the best position to teach "good manners, disciplined behavior and civility." (8) In 1998, then-Justice Sandra Day O'Connor decried the decline of professionalism in legal practice, which she believed led to public dissatisfaction with and a lack of respect for lawyers, who were often compared to "skunks, snakes, and sharks." (9) In this age of polarization and social division, calls for law schools to help students develop a professional identity that prioritizes respectful disagreement continue unabated. (10)
Teaching civility and professionalism in law school can mean many different things. (11) How a school defines these conceptions can dramatically affect the legal analysis. Some aspects of civility involve only conduct (like meeting deadlines or punctuality); these sorts of requirements do not raise First Amendment issues. Likewise, some speech that a law school might regulate as unprofessional is not protected under the First Amendment at all. For example, incitement, defamation, obscenity, and true threats are categories of unprotected speech. (12) Although the Supreme Court has not addressed this issue directly, it might also be possible to regulate speech that creates a hostile learning environment under Title VI and Title IX. (13)
Speech policies that require students to act, in the words of the current California oath for newly admitted attorneys, "at all times with dignity, courtesy and integrity," (14) raise significant First Amendment concerns. (15) The First Amendment offers broad protection for profane, lewd, vulgar, or otherwise offensive expression that a law school might want to regulate under a civility or professionalism standard. The Court has held the First Amendment protects people who wear "Fuck the Draft" jackets in public spaces, (16) burn the American flag, (17) or express hateful messages. (18) Accordingly, law schools that wish to regulate the speech of their students will have to argue that these usual rules do not apply. (19)
It is not entirely clear what constitutional leeway universities have to regulate the speech of their students, but whatever leeway exists will likely vary depending on the context in which the regulation takes place. It is likely that law schools have the strongest arguments to regulate civility in the classroom and other academic settings; they have the weakest arguments when they try to regulate student expression that is not directly related to university-sponsored activities. The regulation of student expression at events on campus falls within the murky middle.
B. Academic Freedom and Institutional Deference
Law schools that discipline students for violations of professionalism standards are likely to rely on academic freedom and institutional deference arguments. They would argue universities should have constitutional leeway to have student speech policies that are consistent with their educational mission to produce lawyers ready for practice and that the courts should defer to their pedagogical decisions designed to achieve this goal.
The Court has never clearly embraced a constitutional doctrine of academic freedom. (20) And even if it exists, it can mean many different things. (21) In Sweezy v. New Hampshire, the plurality stated in dicta that the attempt to interrogate a professor about his political beliefs and contents of his lectures was "an invasion of petitioner's liberties in the areas of academic freedom and political expression-areas in which government should be extremely reticent to tread." (22) In a separate opinion, Justice Frankfurter expressed concern about "the grave harm resulting from governmental intrusion into the intellectual life of a university." (23) Justice Frankfurter famously cited "the four essential freedoms of a university-to determine for itself on academic grounds who may teach, what may be taught, how it shall be taught, and who may be admitted to study." (24) Putting together the plurality and Justice Frankfurter's separate concurrence, Sweezy is the first time that a majority of justices agreed that academic freedom is constitutionally protected; (25) however, the case was decided on other grounds. (26) In Keyishian v. Board of Regents, the Court declared that "[o]ur Nation is deeply committed to safeguarding academic freedom, which is of transcendent value to all of us and not merely to the teachers concerned." (27) Keyishian's famous dicta asserts that the First Amendment "does not tolerate laws that cast a pall of orthodoxy over the classroom" because "[t]he classroom is peculiarly the 'marketplace of ideas.'" (28) Like Sweezy, however, Keyishian did not resolve the issue before it on academic freedom grounds; instead, the Court concluded that the challenged New York law was unconstitutionally vague. (29) These cases also involved universities challenging external interference and did not address when universities can regulate the speech of their students.
When courts feel ill-equipped to second-guess universities' educational decisions, at times they embrace what some scholars have labeled the "doctrine of academic abstention." (30) For example, in Board of Curators v. Horowitz, the Supreme Court rejected a procedural due process claim brought by a medical student dismissed from her program for poor clinical skills, erratic attendance, and lack of concern for personal hygiene. (31) The Court noted that university decisions concerning a student's academic performance are "not readily adapted to the procedural tools of judicial or administrative decisionmaking." (32) In his concurrence, Justice Powell added that "[u]niversity faculties must have the widest range of discretion in making judgments as to the academic performance of students and their entitlement to promotion or graduation." (33) Similarly, in Regents of the University of Michigan v. Ewing, the Court cited both Keyishian and Horowitz when it rejected a student's claim that a public medical school had violated his substantive due process rights by dismissing him from the program after he failed a required exam. (34) The Court held that judges reviewing "the...
