Law School Clinics and the First Amendment
Jonathan L. Entin
Law School Clinics and the First Amendment
61 Case W. Res. L. Rev. 1153 (2011), https://ssrn.com/abstract=3775261
Introduction
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In this brief comment, I want to raise questions about the extent to which law school clinics could successfully assert First Amendment defenses against outside efforts to restrict their activities in the event that such pressure were to result in litigation.
The discussion proceeds in three stages. First, I will offer other examples in which law reform has generated political backlash. The frequency of the phenomenon should come as no great surprise. Perhaps the haves do not always come out ahead,3 but just as the race is not always to the swift or the battle to the strong,4 we should expect the haves to defend their position vigorously.5
Second, I will address some First Amendment issues that bear on this subject. Specifically, I will examine the implications of Garcetti v. Ceballos,6 a 2006 ruling that takes a restrictive view of the speech rights of public employees and therefore might have troubling implications for clinics at public law schools. I will also examine Legal Services Corp. v. Velazquez,7 a pre-Garcetti case that points in the other direction by treating the activities of government-funded lawyers as private speech rather than government speech.
Third, I will pick up on a hint in Garcetti that academic freedom, which has important First Amendment aspects, might bear on the extent to which law school clinics enjoy legal protection against some of the egregious assaults that Professors Babich and Joy recount in their articles. In doing so, however, I will point to some ambiguities in the law of academic freedom and in the nature of law schools that might limit the extent of protection that academic freedom provides to clinics.
I. Law Reformers and Other Targets of Backlash
During my first week at Northwestern University School of Law, one of my professors was installed in an endowed chair. * * * [Jon Waltz] talked about his peripheral involvement in the Chicago 7 case, which grew out of the violence surrounding the 1968 Democratic Convention. Walz consulted with defense lawyers William Kunstler and Leonard Weinglass about some evidentiary issues in the case.11
He also testified as a defense witness at the retrial of the defendants and their lawyers on contempt charges after their original convictions were overturned on appeal. * * *
Professor Waltz focused his remarks at the chairing ceremony on his connect to the original trial. That chaotic proceeding was presided over by Judge Julius Hoffman, a prominent graduate of the law school who had many influential friends and supporters. Indeed, Hoffman was such a prominent alumnus that the law school had named a classroom for him–a room in which Walz refused to teach. Judge Hoffmans’ supporters were outraged that a faculty member, let alone one as prominent as Professor Walz, would have anything to do with the defense in the case. According to Walz, the critics approached the dean of the law school and the president of the university, demanding that he be fired and threatening to withhold future financial support. Pausing briefly for effect, he continued: “To their everlasting credit, the dean and the president told those people, in so many words, to go jump in Lake Michigan.”
In a similar vein, Edna Smith Primus, the protagonist in In re Primus,14 had to go to the Supreme Court to overturn disciplinary sanctions imposed in connection with a challenge to a local sterilization policy. Primus, an officer of and cooperating attorney with the South Carolina affiliate of the American Civil Liberties Union, addressed a meeting of low-income women who had been sterilized or threatened with sterilization as a condition for continued receipt of Medicaid benefits.15 She advised the women of their legal rights and thereafter wrote to one of those women saying that the ACLU was prepared to represent her on a pro bono basis should she want to sue.16 That woman decided not to accept the offer.17 The state bar imposed a private reprimand for the letter, which the authorities regarded as unethical solicitation of a client.18
The Supreme Court set aside the sanction. The Court emphasized that Primus had not solicited a prospective client in person and that her letter did not involve any prospect of “pecuniary gain.”19 Rather, she was promoting her “personal political beliefs” and “the civil-liberties objectives of the ACLU” by advising the woman of her legal rights.20 The letter “comes within the generous zone of First Amendment protection reserved for associational freedoms.”21 The record contained no evidence of undue influence, overreaching, misrepresentation, or invasion of privacy that might have justified professional discipline,22 nor did it present any threat of frivolous claims that provides the basis for the barratry doctrine.23
Both of these situations involved a one-time episodes. More analogous to some of the challenges that law school clinics face is the effort of several states to shut down the NAACP’s litigation efforts at the height of the civil rights movement. The leading example involved Virginia’s attempt to outlaw the association’s desegregation lawsuits as a prohibited form of barratry, but several other states also pursued the same goal.24 The theory was that the NAACP controlled the litigation and induced unsuspecting plaintiffs to lend their names to cases which they otherwise had no interest in pursuing.25 The state legislature therefore amended its laws against soliciting legal business to include agents of an organization that hired a lawyer in connection with any case to which the group was not a party and in which it had no pecuniary interest.26
The Supreme Court ultimately thwarted this stratagem, but not before the effort diverted considerable time and resources that the organization might have devoted to even more aggressive legal assaults on racism.27 In NAACP v. Button,28 the Court held that the amended Virginia barratry statute violated the First Amendment. The NAACP’s legal activities were a form of political expression and association that enjoyed constitutional protection.29 Although the state had a legitimate interest in regulating the ethics and integrity of the legal profession, that interest did not justify the infringement on First Amendment freedoms that the regulation embodied.30 The NAACP’s activities did not pose a danger of conflict of interest or financial gain by lawyers at the expense of their clients, so the state could not forbid the targeted arrangements.31
A final example of external pressure involves the legal services program. Originally part of the Office of Economic Opportunity, the federal antipoverty agency, the legal services program provides lawyers for low-income persons around the nation.32 Because legal services lawyers sometimes challenge powerful private interests as well as local officials and policies, the program has generated a fair amount of controversy. In its early years, several governors opposed the program.33
Even after the 1974 passage of legislation establishing the Legal Service Corporation as an independent, nonprofit entity,36 the program has remained controversial. In addition to the limitations at issue in Velazquez,37 LSC-funded programs and attorneys face many statutory restrictions, including bans on political activity, lobbying, fee-generating cases, and litigation relating to school desegregation and most abortions; there also are stringent limitations on class actions.38
Controversy over the legal services program, both under OEO and later under LSC, was quite predictable. To the extent that the program subsidizes lawsuits that challenge public policies, elected officials can be expected to react with skepticism if not outright hostility. A similar phenomenon occurred in connection with the community action program, which was the centerpiece of the War on Poverty overseen by OEO. Mayors and other officials around the nation sought either to eliminate or to control local community action agencies in order to minimize the political threat that those agencies posed.41 As the sociologist Lewis Coser put it: “I know of no government in history which has deliberately financed its own opposition.”42 This observation does not necessarily make the criticisms of legal service legitimate, but it helps to explain their existence.
[W]e should anticipate similar reactions from those powerful entities that law school clinics challenge. The rulings in Primus and Button suggest that clinics might invoke constitutional protections to ward off some restrictions that might arise from outside attacks, but those attacks do not involve claims of barratry or other ethical lapses of the sort that were at issue in those cases. Nevertheless, a couple of other relatively recent Supreme Court decisions might bear on the status of law school clinics that face external pressure to handle only small cases on behalf of individual clients instead of larger cases that could have broader social, political, or economic impact.
II. Some Recent First Amendment Jurisprudence
Many law school clinics are part of public law schools, so restrictions on their activities might have First Amendment implications. Accordingly, this section considers the extent to which governmental restrictions on clinics affiliated with public law schools are likely to survive a constitutional challenge. It focuses on two recent Supreme Court decisions, both involving lawyers, that seem to point in different directions with regard to law school clinics.
The first case, Garcetti v. Ceballos,43 found that public employees have no First Amendment protection for speech made in connection with their official duties.44 The case arose when a deputy district attorney, following an apparently common conversation with defense counsel in a criminal case, raised persistent questions about the accuracy of an affidavit that the office had submitted in support of a search warrant.45 The deputy was called to testify as a defense witness at a suppression hearing.46 Thereafter, he alleged, his superiors unconstitutionally retaliated against him in various ways.47
The Court recognized that “the First Amendment protects a public employee’s right, in certain circumstances, to speak as a citizen addressing matters of public concern”48 but nonetheless rejected Ceballos’ claim because “his expressions were made pursuant to his [official] duties” as a deputy district attorney.49 After all, “[r]estricting speech that owes its existence to a public employee’s professional responsibilities . . . simply reflects the exercise of employer control over what the employer itself has commissioned or created.”50 Ceballos’ activities were not those of a citizen but of a public employee. Although the First Amendment allows public employees to “contribut[e] to the civic discourse,” it does not give them “a right to perform their jobs however they see fit.”51 Any other conclusion would lead to “permanent judicial intervention in the conduct of governmental operations to a degree inconsistent with sound principles of federalism and the separation of powers.”52
The logic of Garcetti suggests that clinicians at public law schools could not assert a successful First Amendment defense against restrictions on the types of cases they pursue if those restrictions are imposed by officials who have supervisory authority over their work. Clinicians at such schools are public employees, and the work they do in selecting cases and representing clients is part of their official duties. Because Garcetti says that the First Amendment offers no protection to public employees in the performance of their official duties, it is likely that restrictions on the types of cases that clinics at public law schools may take would survive a legal challenge.
Two caveats are in order before we accept this conclusion. First, it is possible to argue that cases handled by clinics at law schools involve matters of public concern. Garcetti by its terms does not apply to such situations. Unfortunately, the facts of Garcetti show that this argument cannot succeed. Criminal cases, like those at issue there, do involve the public. Indeed, crime has long been a matter of public concern. But the Garcetti Court focused less on the general interest in crime than on the work responsibilities of the deputy district attorney. His job was to work on criminal cases subject to oversight by his superiors. On this view, clinicians are employed to handle cases and train aspiring lawyers. In doing so, they are acting not as citizens but as public employees.
Second, it might be that the apparently bright-line rule of Garcetti does not apply in the academic setting. The Court recognized that “expression related to academic scholarship or classroom instruction” might enjoy broader constitutional protection but explicitly declined to resolve that question.53 We shall turn to the question of academic freedom in the next section. Before doing so, however, we should address the other recent case that bears on the First Amendment rights of lawyers who are employed by the government.
As noted earlier, legal services lawyers face several statutory restrictions on their work.54 One of those restrictions was struck down in Legal Services Corp. v. Velazquez.55 At issue in that case was an appropriations rider that prohibited legal services lawyers from seeking to amend or challenge the constitutionality of welfare laws.56 The Supreme Court rejected the argument that the rider funded government speech. Earlier cases, notably Rust v. Sullivan,57 had upheld viewpoint-based restrictions where the government itself was the speaker or where the government had used private speakers to convey its own message.58
According to the Velazquez Court, the legal services program “was designed to facilitate private speech, not to promote a governmental message.”59 Moreover, the rider placed “a substantial restriction” on that private speech.60 It undermined the “traditional role” of lawyers61 and, by preventing them from presenting serious questions about the validity of welfare statutes and regulations, also threatened the independence and integrity of courts that rely on attorneys who are supposed to advance “all the reasonable and well-grounded arguments necessary for proper resolution” of cases.62 Because the rider sought “to draw lines around the [legal services] program to exclude from litigation those arguments and theories Congress finds unacceptable but which by their nature are within the province of the courts to consider,”63 the restriction constituted impermissible viewpoint discrimination in violation of the First Amendment. The Court rejected the argument that the restriction sought only to define the scope of the program, warning: “Congress cannot recast a condition on funding as a mere definition of its program in every case, lest the First Amendment be reduced to a simple semantic exercise.”64
Velazquez might help law school clinics that receive government funding to fend off some restrictions on the types of cases that they take. If publicly funded law school clinics are engaged in private speech, then governmental prohibitions or limitations on their work might constitute viewpoint discrimination. Of course, the answer might depend on the nature of the governmentally imposed restriction. After all, Velazquez did not address a complete ban on certain kinds of cases; the rider at issue limited the kinds of legal arguments that legal services lawyers could make in cases that those lawyers were permitted to handle. The Supreme Court noted that federal law prohibits legal services lawyers from working on whole classes of cases—including most criminal cases as well as matters involving nontherapeutic abortions, school desegregation, and selective service—but did not suggest that such subject-matter bans were constitutionally problematic.65 Velazquez emphasized that the government had no obligation to maintain a legal services program but that, having decided to create such a program, the government could not insulate its laws from constitutional attack by the lawyers it had chosen to fund.66
Two points seem to follow from this discussion. One is that properly promulgated restrictions on the kinds of cases that publicly funded law school clinics are allowed to take or the types of clients that they are permitted to represent might pass muster. Velazquez apparently rejects only limitations on the kinds of legal arguments that government-subsidized lawyers may assert. On this view, subject-matter restrictions are less problematic than viewpoint-based limitations.
The other is that, read narrowly, Velazquez might not be directly relevant to clinics at private law schools (and perhaps at some public schools) that do not receive government funds. After all, that case addressed only a funding restriction. But the decision rejected the restriction as unconstitutional viewpoint discrimination. Accordingly, if government cannot condition the award of funds on a grantee’s agreement not to advance certain kinds of legal arguments, it must follow that government may not directly forbid lawyers from advancing those arguments even if the lawyers do not receive public subsidies. Again, however, narrower restrictions could be more difficult for unsubsidized clinics to attack than viewpoint-based restrictions.
This second point receives some support from a case involving a previous attempt to restrict the work of [the Tulane Environmental Law Clinic]. In 1999, the Louisiana Supreme Court promulgated regulations that tightened eligibility requirements for clients of law school clinics and prohibited law students from serving as attorneys under the student-practice rule for any client whom the clinic had contacted for the purpose of representation.67 The new rules, apparently adopted in response to political pressure and complaints from business interests,68 survived a constitutional challenge.
In Southern Christian Leadership Conference v. Supreme Court of Louisiana,69 the United States Court of Appeals for the Fifth Circuit upheld the revised student-practice rule. The more stringent client-eligibility requirements promoted the goal of providing legal representation to those who could not afford to hire their own lawyers.70 The limits on solicitation satisfied the First Amendment. Distinguishing Button and Primus, which involved efforts to ban solicitation of clients, the Fifth Circuit explained that the Louisiana rule did not prohibit any speech but merely limited the roles that clinic students could play in cases in which the clinic had made the initial contact with the client.71 Because the students were not and could not be licensed as lawyers, the rule simply forbade them from acting as attorneys in certain clinic cases; they remained free to work as paralegals, researchers, or trial aides.72 Distinguishing Velazquez, the court explained that the rule did not restrict the types of cases that clinics could take or the kinds of arguments that they could advance on behalf of those clients; the rule also did not actually forbid clinics from soliciting clients but merely defined the roles that clinic students could play on behalf of clients whom the clinic had legitimately solicited.73 Finally, the alleged animus of politicians and business groups did not affect the validity of the otherwise viewpoint-neutral rules. There was no evidence that the Louisiana Supreme Court shared such animus; at most the plaintiffs claimed that the court had succumbed to political pressure.74
If these very restrictive regulations can pass constitutional muster,75 law school clinics could face a daunting task in fending off stringent but carefully drafted limits on their activities. Regulations such as those struck down in Button, Primus, and Velazquez presumably could not be imposed on clinics, but facially neutral regulations that might undermine clinic operations might be upheld. Before concluding that restrictions on clinics are effectively immune from legal challenge, we should recall the Fifth Circuit’s pointed remark that neither Tulane University nor any of its law school clinics challenged the Louisiana student-practice restrictions.76 It is not clear that the case would have come out differently had the university or any of its clinics been parties to the case, but the statement might imply that they could have advanced arguments based on academic freedom. The Garcetti Court also alluded to academic freedom but did not address the issue in any detail.77 The next section discusses that subject.
III. Law School Clinics and Academic Freedom
Academic freedom encompasses “freedom of inquiry and research; freedom of teaching within the university or college; and freedom of extra-mural utterance and action.”78 Although the idea of academic freedom emerged from conflicts between faculty members and boards of trustees,79 the Supreme Court has recognized that at least some aspects of academic freedom enjoy First Amendment protection. For example, in Sweezy v. New Hampshire,81 Chief Justice Warren’s plurality opinion warned that “impos[ing] any strait jacket upon the intellectual leaders in our colleges and universities would imperil the future of our Nation.”82 Justice Frankfurter’s concurring opinion offered a more extensive defense of free inquiry.83 A decade later, in Keyishian v. Board of Regents,84 the Court characterized academic freedom as having “transcendent value to all of us.”85 Those statements were dicta. In Sweezy, the Court found that a state attorney general’s investigation of allegedly subversive activities had not been properly authorized;86 in Keyishian, the Court held that a statute requiring the dismissal of faculty members for “treasonable or seditious” utterances was unconstitutionally vague.87
In other cases, however, concerns about academic freedom appear to have played a more central role. For example, in Regents of the University of Michigan v. Ewing,88 the Court called for deference to faculty judgments about students’ academic performance. That case involved a medical student who was dismissed for failing a comprehensive exam.89 In rejecting the student’s procedural due process claim, the Court explained: “When judges are asked to review the substance of a genuinely academic decision, . . . they should show great respect for the faculty’s professional judgment.”90 The judiciary should overturn an academic decision only if “it is such a substantial departure from accepted academic norms as to demonstrate that the person or committee responsible did not actually exercise professional judgment.”91
What do these cases imply about whether law school clinics could successfully assert an academic freedom claim to fend off external pressures on their work? At first blush, clinics seem to have a powerful argument that their operations fall within the classic definition of freedom to teach. Clinics are the predominant mechanism by which law schools satisfy the accreditation requirement to provide students with “live-client or other real-life practice experiences,”102 but that requirement does not mean that schools must operate their own clinics or provide every student with such real-life practice opportunities.103 In other words, a law school’s decision to operate a clinic appears to represent exactly the kind of academic judgment that deserves judicial deference.
There are at least two reasons to question whether an academic freedom argument would succeed in court. First, it might be argued that academic freedom as recognized in the cases does not apply to the work of law school clinics. Institutional academic freedom, which protects universities from external interference, traditionally has been justified in the name of defending “the fundamental academic values of disinterested inquiry, reasoned and critical discourse, and liberal education.”104 On this view, the government might well be permitted to regulate aspects of universities that are “unrelated to liberal studies.”105 This is so because the concept of academic freedom rests on a commitment to detachment and disinterestedness.106 Training students for the labor market is only peripherally, if at all, related to those values, the argument goes, so the government might have greater latitude to regulate activities relating to vocational training.107 Law school clinics inculcate skills that are designed to prepare students for legal practice rather than detached and disinterested inquiry, so perhaps their work falls outside the boundaries of academic freedom, however this concept applies to other aspects of what law professors (including clinicians) do.
There are other reasons to question whether academic freedom necessarily insulates law school clinics from external regulation. Clinics enable law students to appear in court, under faculty supervision, in circumstances where they otherwise could not represent clients because the students have not been admitted to the bar. Student-practice rules are an integral part of the clinical experience: without such rules, promulgated by the judiciary, law students would not be able to perform lawyers’ roles. Because students have no independent right to appear in court on behalf of clients, it is not clear that invoking academic freedom will add much to the more general First Amendment arguments against content-based regulations of legal practice that prevailed in NAACP v. Button and Legal Services Corp. v. Velazquez108 or the First Amendment arguments that failed in Southern Christian Leadership Conference v. Supreme Court of Louisiana.109
Conclusion
It is not at all clear that either general First Amendment doctrine or academic freedom, to the extent that this concept rests on First Amendment considerations, will protect law school clinics from at least some external regulation. Nevertheless, the uncertain prospects of judicial vindication should not occasion despair. After all, academic freedom is more than a legal concept that is enforced by courts. It also represents a powerful intellectual and social norm that can be used in the public arena to fend off attacks on universities.110 Professor Waltz’s experience at Northwestern, where the law school and the central administration resisted calls for his ouster because of his role in the Chicago 7 case,111 offers an optimistic example of how this norm can be used effectively.
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