Dismantling The Professional Student Political Speech Minefield: Rejecting The Proliferation of Conduct Standards That Restrict Political Expression

Abstract

Universities have discarded their role as institutions dedicated to the marketplace of ideas and the freedom of expression. The desire to shield students from ideas that make them uncomfortable has unfortunately spread to professional programs, as administrators have constructed student conduct policies that limit political speech. Although recent federal circuit decisions have permitted professional programs more discretion to punish speech than undergraduate or graduate students, courts have only applied those decisions to situations where student conduct clearly violates established professional standards. While professional programs possess a legitimate pedagogical purpose in preparing its students to enter a licensed profession, that purpose is not absolute and is limited by the First Amendment when applied to political speech. Courts should find that professional programs violate its students’ First Amendment rights when student conduct policies punish political speech that does not violate any written code of conduct or established professional standard. When a university punishes a professional student’s political speech without reference to existing professional standards, student discipline may become a pretext for discrimination against political beliefs. Accordingly, courts should hold that an administrator’s application of a student conduct policy against political speech is void for vagueness and overbreadth and risks viewpoint discrimination. When students are unaware of what political speech their universities may sanction, they may avoid engaging in frank discussions of politics over the fear of discipline. Professional students are the emerging leaders of our country, and their program administrations should not chill them from freely expressing their opinions on matters of public concern as the price of admission into the program. This article will take a novel approach to reject limitations on professional student political speech, using the Tenth Circuit’s analysis in Hunt v. Board of Regents of the University of New Mexico to demonstrate the threat of students’ First Amendment rights.