Grade Non-disclosure Policies: an Analysis of Restrictions on M.b.a. Student Speech to Employers

The past decade has seen a new trend emerge among the most elite American business schools. In an effort to reduce competitiveness among their respective student bodies, students at several elite business schools have held referenda to prohibit any M.B.A. student from disclosing his or her grades to employers. While these policies differ in scope, some prohibit disclosure even if a failure to disclose one's grades would result in one not obtaining a job offer. Students have usually ratified such ballot measures by wide margins, and in the wake of such votes, some business school administrators have gone so far as to make disclosing grades to employers an honor code violation. This Essay will explore the legality of such collective grade nondisclosure agreements, with a particular emphasis on First and Fourteenth Amendment jurisprudence and relevant state statutes, such as California's Leonard Law. Although courts have allowed public universities to place limits on student speech when regulating speech enhances the educational experience, restricting a student's ability to disclose information about him or herself to prospective employers impairs the educational experience. While private schools are generally not required to provide freedom of speech protection to their student bodies, courts are unlikely to uphold grade non-disclosure policies adopted by private universities located in jurisdictions such as California where legislatures have prohibited private schools from banning otherwise allowable speech, unless such policies are tailored in a way that avoids official administration enforcement of the policy.