Stanford Law School Student's Graduation Was Put In Jeopardy Because FedSoc Can't Take A Joke

Nuttin' but a bunch of hypocrisy to see here.

Stanford Law School (by King of Hearts via Wikimedia)

This story is filled with a LOT of dumb, so before you proceed, be warned.

So, it all started with a joke, and a pretty good one at that. In the weeks following the January 6th violent insurrection at the Capitol, Stanford Law School 3L Nicholas Wallace poked fun at the way the Federalist Society handled the fallout. (If you’ll recall, despite some very prominent FedSoc members fomented the idea that the 2020 election was stolen from Donald Trump, the organization couldn’t be bothered to condemn the coup attempt.)

Wallace sent a satirical flyer promoting a faux FedSoc event — “The Originalist Case for Inciting Insurrection feat. Josh Hawley” — to a law school listserv (one dedicated to political talk). The parody noted, “Violent insurrection, also known as doing a coup, is a classical system of installing a government.” And insurrection “can be an effective approach to upholding the principle of limited government.” Really good stuff. In any event, the flyer went viral, as good satire can do, with USA Today even “fact checking” that it was in fact a parody.

This would be a quality Above the Law story if it ended there, but that was far from the end of the saga. In March, weeks after Wallace sent the flyer, an officer of Stanford FedSoc filed a complaint with the law school, alleging the group was “defamed” and saying there was “harm” to the FedSoc chapter and  the “individual reputations” of the officers.

I guess the complainant hadn’t yet gotten the memo that the right wing is against cancel culture… that, or there’s rampant hypocrisy among conservatives. Hmmm, I wonder which it could be…

UPDATE: And we’ve found out, according to multiple sources, just who complained about the flyer. They’re Paul Draper (who will soon clerk for Sixth Circuit Judge Chad Readler — appointed by Donald Trump, natch), David Gonzalez (set to clerk for the Tenth Circuit’s Timothy Tymkovich), and Nick Venable (who’ll clerk for the Sixth Circuit’s Jeffrey Sutton).

But as bad as all this is, the way the elite law school handled it is, somehow, even worse. As Mark Joseph Stern reports for Slate:

Then, on May 22, with graduation looming, the Stanford Federalist Society officer pushed the school to initiate a formal investigation. Wallace did not receive the complaint against him until May 27, his last day of classes. Stanford then placed a hold on his degree, prohibiting him from receiving his actual diploma at graduation on June 12. It has continued to investigate him for “a possible violation of the Fundamental Standard,” the school’s code of conduct, subjecting him to the same procedures that suspected plagiarists must undergo. The hold on his diploma has jeopardized Wallace’s plans to take the Michigan bar exam this summer; the state bar requires applicants to send their diplomas immediately upon graduation, which he will not be able to do.

That’s right: almost four full months after the parody was sent, the school launched an investigation that jeopardized not only Wallace’s graduation but his ability to take the bar exam. And they do it right as finals are starting! Good thing those 3L grades are basically meaningless.

As Wallace told Stern:

“It has been a pretty awful way to close out my career at Stanford,” Wallace told me. “Instead of studying for finals, I’m trying to figure this out. I just sent an email to my family trying to reassure them that I haven’t blown it in my last few days at Stanford.”

The Foundation for Individual Rights in Education sprung into action urging Stanford to “immediately abandon its investigation and commit to procedural reforms to protect the expressive rights Stanford promises to its students.”

FIRE pointed out that California’s Leonard Law requires private universities to comply with the First Amendment, and there is no real question that Wallace’s email is shielded by the First Amendment. The Supreme Court has held that satire, including offensive and hurtful expression, constitutes protected speech, and Wallace’s email is obviously satirical. “No reasonable person familiar with the email’s context would understand it to be sincere,” FIRE wrote, noting that it advertises an event that occurred 19 days earlier and is “laden with figurative language intended to impugn national political figures.”

And last night, the internet’s outrage machine whirled in the service of righteousness. Amid all the sudden, and overwhelmingly negative, publicity, somehow Stanford was VERY QUICKLY able to wrap up the investigation and find that Wallace’s speech was protected.

And Wallace went back to his old listerv stomping grounds to confirm that Donna Martin graduates.

Well, all’s well that ends well, and all that I suppose. But it really is disappointing that one of the best universities in the country has to have their feet held to the fire before expediting what is, very obviously, the right thing to do.

UPDATE #2: According to a twitter thread, available below, SLS Dean Jenny Martinez send out an email clarifying that the investigation was done on the university level, not by the law school. Indeed, according to the thread, Martinez “strongly urged the University to consider whether it needs procedures that more quickly resolve whether constitutionally protected speech is involved in a Fundamental Standard complaint, & also the policies & procedures that led to their placing a graduation hold on this student on the eve of final exams.”

Statement of Stanford University:

A fundamental standard complaint was filed in the university’s Office of Community Standards against a student in the law school for an email that he had sent out on January 25. We followed our normal procedures and conducted a factual inquiry. Given that this complaint raised issues of protected speech, we also consulted with legal counsel after we obtained the relevant facts. In cases where the complaint is filed in proximity to graduation, our normal procedure includes placing a graduation diploma hold on the respondent.

The complaint was resolved as expeditiously as possible, and the respondent and complainant have been informed that case law supports that the email is protected speech. For that reason, and pursuant to the Leonard Law, the university is not moving forward with the OCS process and the graduation diploma hold has been released.

In recent years, we have seen an increase in the number and complexity of student cases involving free speech, student judicial policies and the California Leonard Law. We will continue to review policies and practices relating to these to ensure ongoing compliance. We are also reviewing procedures for placing holds on student accounts in judicial cases in close proximity to graduation to ensure that holds are limited to cases for which the outcome could be serious enough to affect the timing of degree conferral.

UPDATE #3: The SLS faculty has weighed in on the controversy:


headshotKathryn Rubino is a Senior Editor at Above the Law, and host of The Jabot podcast. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter (@Kathryn1).