The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
How Should Law Schools Handle Protests at Student Events?
It may be too late for Stanford Law School, but it's not too late for other institutions of higher learning.
As readers doubtless know, last week, student protestors disrupted a lecture by Judge Kyle Duncan of the U.S. Court of Appeals for the Fifth Circuit at Stanford Law School (SLS). Judge Duncan had been invited to deliver remarks by the SLS chapter of the Federalist Society, and although the chapter is a recognized student organization at SLS, it was not able to proceed with the event as planned. David Lat has provided the most comprehensive account of the event and the fallout, and has also published audio of the entire event. (Some have suggested SLS has video of the entire event as well. If so, I hope it is released for purposes transparency and accontability.)
As SLS Dean Jenny Martinex and Stanford President Marc Tessier-Lavigne have acknowledged, school administrators did not handle the situation well. But what should SLS have done? What should other schools do if they are concerned about disruptive protests at events? Having been involved with such questions at my own university, I think the answer is simple and straight forward: 1) Have a policy; 2) Inform people about the policy; 3) Enforce the policy. If the goal is facilitating the expression of diverse viewpoints and avoiding disruptions, all three steps are necessary.
First, have a policy. This is one thing Stanford did right. It has a policy which broadly protects free expression but also clearly prohibits actions that disrupt public events. Among other things, it provides that:
It is a violation of University policy for a member of the faculty, staff, or student body to:
Prevent or disrupt the effective carrying out of a University function or approved activity, such as lectures, . . . and public events. . . .
This was a scheduled public event (indeed, a lecture) by a university-recognized student group.
The policy is good because, among other things, it ensures that members of the university community will not be punished or sanctioned for the viewpoints they express, but also makes clear that all groups--whether Outlaw or FedSoc--has the same right to organize and host events without undue interference. In order for all student groups to have the ability to present their views and explore ideas of interest to their members, all groups must have the same ability to hold their own events without interference.
It is one thing to have a policy. It is another to have it observed. To accomplish this it is important that a university both inform people of the content of the policy and to enforce the policy. I emphasize both because the aim of the policy is to protect free expression and prevent disruptions, and informing people of the policy is one way to discourage violations. Relying solely on post hoc enforcement, while sometimes necessary, is the most prudent and effective way to ensure a policy is followed.
In practice I thnk this means that it is often a good idea for a university representative -- an administrator or tenured faculty member -- to announce the policy before the start of an event at which there may be a disruption, so that attendees are on notice of what will and will not be tolerated. In my experience, such an announcement often helps channel protest in more productive directions.
When I was an undergraduate at Yale, a group invited a notoriously anti-semitic representative of the Nation of Islam to speak at Yale Law School. Many students and other members of the univeristy community were outraged, and some called on Dean Guido Calabresi to block the event. Dean Calabresi rightly refused. Instead, he explained that he would join the protestors outside of the venue in protest before the event, and then he would go in to hear the speaker, listen politely, and (if given the opportunity) ask pointed questions. This was a good approach. Dean Calabresi made clear to those in his community who felt threatened by the speaker that he shared their concerns, but he also demonstrated that such concerns did not justify disrupting the event or preventing the audience from hearing and engaging with the speaker, even though the speaker was presenting a hateful message.
Similarly, if university administrators get word of a potential disruption, they can also take proactive steps to channel or guide would-be protesters toward forms of protest that will not run afoul of the rules, such as picketing or leafletting outside of an event, holding up signs that do not obstruct the audience's view, or holding a counter-event. After all, the aim is to prevent disruptions and (I would think) to avoid punishing students unnecessarily. (Of course, if some students wish to engage in civil disobedience, so be it, but civil disobedience typically involves a willingness to accept the consequences.)
If a university has a clear policy, and if a university informs members of the community of the policy so as to put them on notice, I then think it is appropriate for the university to enforce that policy. Violations of university speech polices are often violations of the school's student code of conduct, and should be treated as such. (The Stanford policy expressly anticipates this.) But this does not mean the policies should be enforced in a punitive fashion. Particularly in law schools, student codes of conduct are intended to help acclimate students to the norms of the profession they plan to enter. We expect our students to comply, but we also make (or, at least, should make) an effort to educate students about why the various conduct standards are important.
One complicating factor about what occurred at SLS is that multiple law school administrators were in the room during the disruptions and did nothing to inform students that they were violating Stanford's policy, let alone to enforce it. This muddies the waters a bit because I think some students could fairly argue that this sent a signal that their conduct was okay, and would perhaps make it unfair to impose punitive punishments on them. This is something SLS administrators will have to consider.
Going forward, however, I would think the school should make clear that future disruptions will face serious punishments, including at least the sort of formal censure that law students would be required to disclose as part of the character and fitness process for state bars. Whether or not students understood the contours of Stanford's policy before, they are clearly on notice now.
So, to sum up, schools should 1) have a clear policy; 2) inform people about the policy; and 3) enforce the policy. All three steps are important if the goal is protecting speech, avoiding disruptions of events, and unnecessarily punishing students for seeking to make their voices heard.
