After students at Stanford Law School disrupted a Federalist Society event featuring Judge Kyle Duncan in March 2023, then-Dean Jenny Martinez issued a lengthy statement recognizing that “offensive, vulgar, or provocative” expression at campus events is “perhaps constitutionally protected” but argued “it is within our educational mandate to address with students the norms of the legal profession.” This Essay takes seriously Dean Martinez’s appeal to professional norms and broadly examines whether and when the regulation of law students’ “unprofessional” speech would be consistent with the First Amendment. 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.
In assessing the permissibility of regulating law student speech for “professionalism,” 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 Essay considers this question from multiple angles, from the Court’s case law deferring to universities’ educational decisions, to cases specifically relating to student speech. This Essay argues that the further away the university’s decisions are from its core teaching functions, the less likely the Court is to be deferential to the school. This means the authority of law schools to regulate student speech can be placed on a spectrum, with the most authority in the classroom context and the least authority outside of school.
In addition, this Essay examines the lower court decisions holding that professional schools have special authority to regulate the speech of their students that demonstrates a lack of fitness for the profession. This Essay contends that this professionalism doctrine is deeply troubling, but if courts recognize it in the law school setting, they should limit its application to narrow circumstances. Specifically, it is essential for the school to identify a specific professionalism standard that would, in fact, support the speech regulation, and that standard must itself be constitutional. In order to protect vigorous advocacy, rules regulating the speech of attorneys 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.
This Essay concludes with 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. With respect to student-invited speakers, law schools should think hard about how such speakers contribute to the academic mission of the school. Law schools that want to receive deference to their regulation of student speech at events should consider new policies that connect these events more directly with the academic enterprise of the school.