Universities as first amendment institutions: Some easy answers and hard questions

UCLA Law Review

Volumn 54, Issue 6, 2007, Pages 1497-1558

  Horwitz, Paul ^a  

^a UNIVERSITY OF ALABAMA   (United States)

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EID: 34948893554     PISSN: 00415650     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (449)

1. Akhil Reed Amar & Neal Kumar Katyal, Bakke's Fate, 43 UCLA L. REV. 1745, 1746 (1996).
2. Id. at 1779.
3. See, e.g., Brown v. Bd. of Educ., 347 U.S. 483, 493 (1954) (suggesting that "[t]oday, education is perhaps the most important function of state and local governments," in light of "the importance of education to our democratic society").
4. See, e.g., James W. Guthrie, American Education Reform: What Is Needed Is "National," Not Federal, 17 ST. LOUIS U. PUB. L. REV. 125, 133 (1997) (noting that "education was not a principal component" of the constitutional framing debates).
5. See, e.g., Pierce v. Soc'y of Sisters, 268 U.S. 510 (1925) (overturning a state compulsory public education law);
6. Meyer v. Nebraska, 262 U.S. 390 (1923) (overturning a state law prohibiting teaching in any language other than English, on substantive due process grounds). For an acknowledgement that these decisions are awkwardly grounded,
7. see, for example, Troxel v. Granville, 530 U.S. 57, 92 (2000) (Scalia, J., dissenting) ("[T]he theory of unenumerated parental rights underlying these [decisions] has small claim to stare decisis protection.");
8. Emily Buss, "Parental" Rights, 88 VA. L. REV. 635, 655-56 (2002) (noting that Meyer and Pierce offer an "arguably shaky foundation" for constitutional claims of parental rights, but suggesting that the Court's long reliance on this shaky foundation "is itself an odd testament to the doctrine's strength");
9. David D. Meyer, The Paradox of Family Privacy, 53 VAND. L. REV. 527, 535 (2000) (noting "the hodge-podge character of the theoretical basis for the Court's original holdings in Meyer and Pierce").
10. The situation is different under many state constitutions. See Anita F. Hill, A History of Hollow Promises: How Choice Jurisprudence Fails to Achieve Educational Equality, 12 MICH. J. RACE & L. 107, 126 (2006).
11. See San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 35-37 (1972).
12. 539 U.S. 306 (2003).
13. Id. at 329.
14. Id. at 325.
15. 126 S. Ct. 1951 (2006).
16. Id. at 1960.
17. Id. at 1962.
18. Id.
19. See Sweezy v. New Hampshire, 354 U.S. 234, 250 ( 1957) ("The essentiality of freedom in the community of American Universities is almost self-evident.").
20. Keyishian v. Bd. of Regents, 385 U.S. 589, 603 (1967).
21. See, e.g., FREEDOM AND TENURE IN THE ACADEMY (William W. Van Alstyne ed., 1993);
22. J. Peter Byrne, Academic Freedom: A "Special Concern of the First Amendment," 99 YALE I.J. 251 (1989);
23. Alan K. Chen, Bureaucracy and Distrust: Germaneness and the Paradoxes of the Academic Freedom Doctrine, 77 U. COLO. L. REV. 955, 956 (2006) ("[T]he law of constitutional academic freedom has not been fully realized in either its theoretical or practical dimensions.").
24. Grutter v. Bollinger, 539 U.S. 306, 328 (2003).
25. Byrne, supra note 17, at 323-27.
26. Grutter, 539 U.S. at 328.
27. Id.
28. Regents of Univ. of Mich. v. Ewing, 474 U.S. 214, 225 (1985); see also Bd. of Curators, Univ. of Mo. v. Horowitz, 435 U.S. 78, 90-92 (1978).
29. Ewing, 474 U.S. at 226 (quoting Horowitz, 435 U.S. at 89-90).
30. Paul Horwitz, Grutter's First Amendment, 46 B.C. L. REV. 461, 589 (2005) [hereinafter Horwitz, Grutter's First Amendment].
31. 547 U.S. 47 (2006).
32. The charter member of this school is surely Frederick Schauer, although other significant contributions have been made by David Fagundes, Daniel Halberstam, Rick Hills, and Mark Rosen. See, e.g., David Fagundes, State Actors as First Amendment Speakers, 100 NW. U. L. REV. 1637 (2006);
33. Daniel Halberstam, Commercial Speech, Professional Speech, and the Constitutional Status of Social Institutions, 147 U. PA. L. REV. 771 (1999);
34. Roderick M. Hills, Jr., The Constitutional Rights of Private Governments, 78 N.Y.U. L. REV. 144 (2003);
35. Mark D. Rosen, Institutional Context in Constitutional Law: A Critical Examination of Term Limits, Judicial Campaign Codes, and Anti-Pornography Ordinances, 21 J.L. & POL. 223 (2005);
36. Mark D. Rosen, The Surprisingly Strong Case for Tailoring Constitutional Principles, 153 U. PA. L. REV. 1513 (2005);
37. Frederick Schauer, The Supreme Court, 1997 Term - Comment: Principles, Institutions, and the First Amendment, 112 HARV. L. REV. 84 (1998) [hereinafter Schauer, Principles, Institutions, and the First Amendment];
38. Frederick Schauer, Towards an Institutional First Amendment, 89 MINN. L. REV. 1256 (2005) [hereinafter Schauer, Institutional First Amendment];
39. Frederick Schauer, Is There a Right to Academic Freedom?, 77 U. COLO. L. REV. 907 (2006) [hereinafter Schauer, Academic Freedom]. I have made my own modest contributions to this literature.
40. See, e.g., Horwitz, Grutter's First Amendment, supra note 24, at 563-88 (offering an approach to thinking about the Court's treatment of First Amendment institutions, and applying that approach to universities);
41. Paul Horwitz, "Or of the [Blog]," 11 NEXUS 45, 62 (2006) [hereinafter Horwitz, Blog] (discussing the press generally, and blogs specifically, as First Amendment institutions);
42. Paul Horwitz, Three Faces of Deference (unpublished manuscript, on file with author) [hereinafter Horwitz, Three Faces] (discussing the role played by deference in the U.S. Supreme Court's Solomon Amendment decision, with a special focus on the insights that an institutional First Amendment approach might have offered in that case).
43. It should be noted that this literature was substantially prefigured by Robert Post. See, e.g., ROBERT C. POST, CONSTITUTIONAL DOMAINS: DEMOCRACY, COMMUNITY, MANAGEMENT (1995);
44. Robert Post, Recuperating First Amendment Doctrine, 47 STAN. L. REV. 1249, 1280-81 (1995) ("The Court must reshape its [First Amendment] doctrine so as to generate a perspicuous understanding of the necessary material and normative dimensions of... [various] forms of social order and of the relationship of speech to these values and dimensions."). Post's writing, however, is at a somewhat more abstract remove from the body of institutionally oriented First Amendment scholarship described above, and is less concerned with particular identifiable First Amendment institutions than it is with "broader organizing principles for social discourse."
45. Horwitz, Grutter's First Amendment, supra note 24, at 567 n.488;
46. see also Schauer, Principles, Institutions, and the First Amendment, supra, at 1273 n.88 (noting the relationship between Post's work and the institutional First Amendment literature but drawing similar distinctions between the two).
47. See, e.g., Horwitz, Grutter's First Amendment, supra note 24, at 563-88.
48. Id. at 589.
49. Id.
50. Id. at 570.
51. See id. at 572-73.
52. See, e.g., Horwitz, Grutter's First Amendment, supra note 24, at 569-71;
53. Schauer, institutional First Amendment, supra note 26.
54. Horwitz, Blog, supra note 26, at 61.
55. Roderick M. Hills, Jr., The Pragmatist's View of Constitutional implementation and Constitutional Meaning, 119 HARV. L. REV. F. 173, 174 (2006).
56. Schauer, Principles, Institutions, and the First Amendment, supra note 26, at 107-08.
57. Id. at 112.
58. Horwitz, Grutter's First Amendment, supra note 24, at 564
59. (quoting Schauer, Principles, Institutions, and the First Amendment, supra note 26, at 119).
60. See generally Frederick Schauer, Prediction and Particularity, 78 B.U. L. REV. 773 (1998).
61. Cf. Claire L'Heuteux-Dube, It Takes a Vision: The Constitutionalization of Equality in Canada, 14 YALE J.L. & FEMINISM 363, 370 (2002) (noting "the notoriously disembodied and acontextual world of law"). For more on the tension between the law's urge toward acontextuality and its need to respond to facts and institutions on the ground, see Horwitz, Three Faces, supra note 26.
62. Horwitz, Grutter's First Amendment, supra note 24, at 564.
63. See U.S. CONST. amend. I (Press Clause).
64. See, e.g., Minneapolis Star & Tribune Co. v. Minn. Comm'r of Revenue, 460 U.S. 575, 577, 592-93 (1983) (striking down a use tax on the cost of paper and ink products used in the production of periodicals).
65. See generally Jon Paul Dilts, The Press Clause and Press Behavior: Revisiting the Implications of Citizenship, 7 COMM. L. & POL'Y 25, 27 (2002) (listing other instances in which the press appears to have been granted a preferred status under the U.S. Constitution).
66. See, e.g., First Nat'l Bank of Boston v. Bellotti, 435 U.S. 765, 798-802 (1978) (Burger, C.J., concurring);
67. Branzburg v. Hayes, 408 U.S. 665, 691-92 (1972);
68. see also Horwitz, Blog, supra note 26, at 46-47;
69. David Lange, The Speech and Press Clauses, 23 UCLA L. REV. 77, 118-19 (1975);
70. Anthony Lewis, A Preferred Position for Journalism?, 7 HOFSTRA L. REV. 595, 605 (1979) ("No Supreme Court decision has held or intimated that journalism has a preferred constitutional position.").
71. Branzburg, 408 U.S. at 704.
72. Horwitz, Grutter's First Amendment, supra note 24, at 564-65;
73. see also Schauer, Institutional First Amendment, supra note 26, at 1257 ("[E]xisting First Amendment doctrine renders the Press Clause redundant and thus irrelevant, with the institutional press being treated simply as another speaker.").
74. See Employment Div. v. Smith, 494 U.S. 872, 890 (1990).
75. Id.
76. Id. at 887.
77. See, e.g., Alan Brownstein, Protecting Religious Liberty: The False Messiahs of Free Speech Doctrine and Formal Neutrality, 18 J.L. & POL. 119, 186-213 (2002);
78. Kent Greenawalt, Quo Vadis?: The Status and Prospects of "Tests" Under the Religion Clauses, 1995 SUP. CT. REV. 323, 390 (noting a "movement [by the Court] away from robust interpretations of the Religion Clauses, under which religion must be treated as special,... and toward principles of equal treatment and legislative discretion");
79. Frank S. Ravitch, A Funny Thing Happened on the Way to Neutrality: Broad Principles, Formalism, and the Establishment Clause, 38 GA. L. REV. 489, 498-544 (2004);
80. Dhananjai Shivakumar, Neutrality and the Religion Clauses, 33 HARV. C.R.-C.L. L. REV. 505, 506-23 (1998).
81. See generally Geoffrey R. Stone, Content Regulation and the First Amendment, 25 WM. & MARY L. REV. 189 (1983).
82. Police Dep't v. Mosley, 408 U.S. 92, 95 (1972).
83. Erwin Chemerinsky, Content Neutrality as a Central Problem of Freedom of Speech: Problems in the Supreme Court's Application, 74 S. CAL. L. REV. 49, 51 (2000).
84. See id. at 49-52. Erwin Chemerinsky has described the doctrine's application in a variety of cases, including United States v. Playboy Entertainment Group, Inc., 529 U.S. 803 (2000) (signal bleed on cable television);
85. City of Erie v. Pap's A.M., 529 U.S. 277 (2000) (nude dancing);
86. Board of Regents v. Southworth, 529 U.S. 217 (2000) (university student activity fees);
87. and Hill v. Colorado, 530 U.S. 703 (2000) (abortion clinic protests).
88. Steven J. Heyman, Spheres of Autonomy: Reforming the Content Neutrality Doctrine in First Amendment Jurisprudence, 10 WM. & MARY BILL RTS. J. 647, 650 (2002);
89. see also Chemerinsky, supra note 51, at 49 ("[I]ncreasingly in free speech law, the central inquiry is whether the government action is content based or content neutral.").
90. See, e.g., Int'l Soc'y for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672 (1992).
91. See, e.g., Hague v. Comm. for Indus. Org., 307 U.S. 496, 515-16 (1939).
92. See, e.g., Lee v. Int'l Soc'y for Krishna Consciousness, Inc., 505 U.S. 830 (1992).
93. See, e.g., Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37 (1983).
94. Schauer, Principles, Institutions, and the First Amendment, supra note 26, at 120.
95. Schauer, Institutional First Amendment, supra note 26, at 1256.
96. Horwitz, Grutter's First Amendment, supra note 24, at 564.
97. For a different literary metaphor that is, perhaps, less grim and more sublime than that of Sisyphus, see John Keats, Ode on a Grecian Urn, in 2 THE NORTON ANTHOLOGY OF ENGLISH LITERATURE 822, 822 (M.H. Abrams et al., eds., 5th ed. 1986) ("Bold Lover, never, never canst thou kiss, / Though winning near the goal").
98. 539 U.S. 306 (2003).
99. See id. at 327 ("Context matters when reviewing race-based governmental action under the Equal Protection Clause.").
100. United States v. Am. Library Ass'n, 539 U.S. 194, 205 (2003).
101. Id. at 203.
102. See Nat'l Endowment for the Arts v. Finley, 524 U.S. 569 (1998);
103. Amy Sabrin, Thinking About Content: Can It Play an Appropriate Role in Government Funding of the Arts?, 102 YALE L.J. 1209 (1993);
104. see also Schauer, Principles, Institutions, and the First Amendment, supra note 26.
105. See supra note 43 and accompanying text.
106. Ark. Educ. Television Comm'n v. Forbes, 523 U.S. 666 (1998);
107. see also Horwitz, Grutter's First Amendment, supra note 24, at 570;
108. Schauer, Academic Freedom, supra note 26, at 923.
109. See generally Horwitz, Grutter's First Amendment, supra note 24.
110. See, e.g., Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995) (hiring of minority subcontractors in federally funded construction projects);
111. City of Richmond v. J.A. Croson Co., 488 U.S. 469 (1989) (same, at local level);
112. Wygant v. Jackson Bd. of Educ., 476 U.S. 267 (1986) (preferential protection against layoffs of minority teachers in K-12 public education).
113. Grutter v. Bollinger, 539 U.S. 306, 328-29 (2003).
114. See generally Richard A. Posner, Against Constitutional Theory, 73 N.Y.U. L. REV. 1 (1998) (remarking on this tendency).
115. Hills, supra note 34, at 174.
116. See, e.g., Horwitz, Grutter's First Amendment, supra note 24, at 566;
117. Schauer, Institutional First Amendment, supra note 26, at 1270-73.
118. See Post, supra note 26;
119. see also Schauer, Principles, Institutions, and the First Amendment, supra note 26, at 86-87 (noting "an intractable tension between free speech theory [in general] and judicial methodology [in particular cases]" and suggesting that "[i]f freedom of speech... is largely centered on the policy question of institutional autonomy, but the Court's own understanding of its role requires it to stay on the principle side of the policy/principle divide, then the increasingly obvious phenomenon of institutional differentiation will prove progressively more injurious to the Court's efforts to confront the full range of free speech issues").
120. Cf. PHILIPPE NONET & PHILIP SELZNICK, LAW AND SOCIETY IN TRANSITION: TOWARD RESPONSIVE LAW (1978) (defining and describing a regime of responsive justice).
121. See, e.g., Matthew D. Adler & Michael C. Dorf, Constitutional Existence Conditions and Judicial Review, 89 VA. L. REV. 1105, 1172-81 (2003) (discussing the enrolled bill doctrine as a form of "epistemic deference" granted by courts to the U.S. Congress).
122. See, e.g., Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984) (requiring judicial deference to reasonable agency interpretations of law).
123. See, e.g., Miami Herald Pub. Co. v. Tornillo, 418 U.S. 241, 258 (1974) (describing "[t]he choice of material to go into a newspaper, and the decisions made as to limitations on the size and content of the paper, and treatment of public issues and public officials" as "the exercise of editorial control and judgment," entitled to substantial deference by courts and lawmakers);
124. Randall P. Bezanson, The Developing Law of Editorial Judgment, 78 NEB. L. REV. 754, 856 (1999) (arguing that many courts, when examining the contours of constitutional protection for the press in libel cases, carve out a space for deference to press decisions to publish by asking whether the press actor was exercising "editorial judgment," defined as the "independent choice of information and opinion of current value, directed to public need, and born of non-self-interested purposes").
125. See, e.g., Grutter v. Bollinger, 539 U.S. 306, 328-29 (2003) (deferring to admissions decisions by a state law school, not because of its status as a state actor, although it was this status that triggered Fourteenth Amendment scrutiny in the first place, but because of its status as a university).
126. See, e.g., Chevron, 467 U.S. 837.
127. For further discussion of this issue, see Horwitz, Three Faces, supra note 26.
128. Schauer, Institutional First Amendment, supra note 26, at 1274.
129. See Horwitz, Grutter's First Amendment, supra note 24, at 569.
130. Even critics of an institutional First Amendment approach acknowledge that this call for the identification of particular First Amendment institutions does not present an insuperable obstacle to the project. See Dale Carpenter, The Value of Institutions and the Values of Free Speech, 89 MINN. L. REV. 1407, 1408 (2005) ("[T]he fact that a First Amendment theory calls for line drawing is not a sufficient objection to that theory. Line drawing is both inevitable and desirable in First Amendment doctrine.");
131. see also Schauer, Institutional First Amendment, supra note 26, at 1260.
132. See generally Horwitz, Grutter's First Amendment, supra note 24, at 571-74;
133. Schauer, Institutional First Amendment, supra note 26, at 1274-75.
134. Grutter v. Bollinger, 539 U.S. 306, 328 (2003).
135. See Horwitz, Grutter's First Amendment, supra note 24, at 578-79 (suggesting that courts "lay down a general procedural requirement - for example, is this a legitimate academic decision, or is this task properly within the role of a library, or is this an exercise of professional journalistic discretion? - while permitting the institutions substantial latitude to operate within these minimal standards").
136. Cf. Post, supra note 26, at 1280 (arguing that First Amendment doctrine should be "refashion[ed]... to foster a lucid comprehension of the constitutional values implicit in discrete forms of social order").
137. See Schauer, Institutional First Amendment, supra note 26, at 1270-73.
138. See id. at 1270-71;
139. see also Horwitz, Blog, supra note 33, at 51-53.
140. Branzburg v. Hayes, 408 U.S. 665, 704 (1972).
141. See Floyd Abrams & Peter Hawkes, Protection of Journalists' Sources Under Foreign and International Law, MEDIA L. RESOURCE CTR., BULLETIN: WHITE PAPER ON THE REPORTER'S PRIVILEGE 183 (2004), available at http://www.medialaw.org/Template.cfm?Section=Bulletin_Archive&Template=/ ContentManagement/ContentDisplay.cfm&ContentID=2037.
142. See, e.g., Sweezy v. New Hampshire, 354 U.S. 234, 250 (1957) (relating academic freedom to the role of universities in making "new discoveries" in various fields of knowledge).
143. See, e.g., Keyishian v. Bd. of Regents, 385 U.S. 589, 603 (1967) ("The classroom is peculiarly the 'marketplace of ideas.' The Nation's future depends upon leaders trained through wide exposure to that robust exchange of ideas which discovers truth 'out of a multitude of tongues, [rather] than through any kind of authoritative selection.'" (quoting United States v. Associated Press, 52 F. Supp. 362, 372 (S.D.N.Y. 1943))).
144. See, e.g., Garcetti v. Ceballos, 126 S. Ct. 1951, 1962 (2006) (declining, without deciding, to apply a general rule involving government employees in cases "involving speech related to scholarship or teaching");
145. Rust v. Sullivan, 500 U.S. 173, 200 (1991) (suggesting that the Court's application of unconstitutional conditions doctrine might be different in cases involving universities, which constitute "a traditional sphere of free expression so fundamental to the functioning of our society that the Government's ability to control speech within that sphere by means of conditions attached to the expenditure of Government funds is restricted by the vagueness and overbreadth doctrines of the First Amendment").
146. WILLIE SUTTON WITH EDWARD LINN, WHERE THE MONEY WAS 159 (1976).
147. See Horwitz, Blog, supra note 33, at 58.
148. See id. at 50-52.
149. See generally Lange, supra note 42.
150. See generally Horwitz, Blog, supra note 33.
151. Branzburg v. Hayes, 408 U.S. 665, 704 (1972).
152. Jacobellis v. Ohio, 378 U.S. 184, 197 (1964) (Stewart, J., concurring).
153. And they are not always at their best, as Larry Alexander reminds us. See Larry Alexander, Academic Freedom, 77 U. COLO. L. REV. 883 (2006). Countless other writers have also examined the failings of the modem American university. For a recent account of the university's problems, one written with affection and sympathy,
154. see DEBORAH L. RHODE, IN PURSUIT OF KNOWLEDGE: SCHOLARS, STATUS, AND ACADEMIC CULTURE (2006). For more perfervid critiques,
155. see, for example, ROGER KIMBALL, TENURED RADICALS, REVISED: HOW POLITICS HAS CORRUPTED OUR HIGHER EDUCATION (1990);
156. CHARLES J. SYKES, PROFSCAM: PROFESSORS AND THE DEMISE OF HIGHER EDUCATION (1988).
157. Byrne, supra note 17, at 259-60.
158. Id. at 261.
159. I mean that in the more literal sense of the word, as should be clear to anyone who has spent much time on campus. For evidence, albeit of a fictionalized nature, that the university could not possibly be said to be disciplined in the casual sense of the word, see, for example, KINGSLEY AMIS, LUCKY JIM (1954);
160. MICHAEL CHABON, WONDER BOYS (1995);
161. DAVID LODGE, CHANGING PLACES (1979);
162. RICHARD RUSSO, STRAIGHT MAN (1997).
163. Emily M. Calhoun, Academic Freedom: Disciplinary Lessons From Hogwarts, 77 U. COLO. L. REV. 843, 844 (2006).
164. Byrne, supra note 17, at 258-59.
165. See id. at 266 (noting the general acceptance "of a crucial tenet that invigorates the notion of academic freedom whether the professor is tenured or not: Judgments of scholarly and teaching competence must ordinarily be made by peers. Judgments of hiring and firing are made in the first instance by other faculty deemed capable of evaluating on appropriate academic grounds the potential and accomplishment of the candidate");
166. Calhoun, supra note 107, at 851 ("The university especially acquiesces in the influence of the discipline in its tenuring processes, which rest heavily on a system of disciplinary peer review.").
167. See Byrne, supra note 17, at 258 ("Academic speech is rigidly formalistic").
168. With the notable, and perhaps unique, exception of that odd creature within the modern academy: the American law review.
169. Byrne, supra note 17, at 267.
170. See, e.g., Grutter v. Bollinger, 539 U.S. 306, 328 (2003).
171. See, e.g., Univ. of Pa. v. EEOC, 493 U.S. 182, 199 (1990) ("[C]ourts have stressed the importance of avoiding second-guessing of legitimate academic judgments.");
172. Regents of Univ. of Mich. v. Ewing, 474 U.S. 214, 225 (1985) (deferring substantially to an academic decision to dismiss a student where the university reasonably exercised professional judgment according to "accepted academic norms");
173. Toledo v. Sanchez, 454 F.3d 24, 39-40 (1st Cir. 2006) ("[T]he [Americans with Disabilities Act] does not require public schools and universities to accommodate disabled students if the accommodation would substantially alter their programs or lower academic standards, and courts give due deference to the judgment of education officials on these matters.");
174. Kobrin v. Univ. of Minn., 34 F.3d 698, 704 n.4 (8th Cir. 1994) ("[C]ourts accord a high degree of deference to the judgment of university decisionmakers regarding candidates' qualifications for academic positions.");
175. Brousard-Norcross v. Augustana Coll. Ass'n, 935 F.2d 974, 975-76 (8th Cir. 1991) (indicating that courts will defer substantially to university tenure decisions);
176. Zahorik v. Cornell Univ., 729 F.2d 85, 93 (2d Cir. 1984) (same).
177. See, e.g., RONALD DWORKIN, TAKING RIGHTS SERIOUSLY 184-205 (1977) (advancing the concept of rights as trumps). For pertinent criticisms of the "rights as trumps" approach,
178. see Frederick Schauer & Richard H. Pildes, Electoral Exceptionalism and the First Amendment, 77 TEX. L. REV. 1803, 1810-16 (1999).
179. Grutter, 539 U.S. at 330;
180. Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 313 (1978) (opinion of Powell, J.);
181. Schauer, Academic Freedom, supra note 26, at 921.
182. See, e.g., Grutter, 539 U.S. at 328-29;
183. Bakke, 438 U.S. at 312-15.
184. 493 U.S. 182 (1990).
185. Id. at 199.
186. 461 U.S. 574 (1983).
187. Properly speaking, Bob Jones University v. United States was a Free Exercise Clause case, not a Free Speech Clause case. Nevertheless, I do not doubt the Court would have reached the same conclusion had the case been framed differently.
188. See, e.g., J. Peter Byrne, Constitutional Academic Freedom After Grutter: Getting Real About the 'Four Freedoms' of a University, 77 U. COLO. L. REV. 929, 935 (2006) [hereinafter Byrne, After Grutter] (noting the "rhetorical ambiguities in Grutter" that "raise doubts about the depth of the Court's commitment to [the] principle" that universities' "core institutional choices are protected by the First Amendment");
189. J. Peter Byrne, The Threat to Constitutional Academic Freedom, 31 J. COLL. & UNIV. L. 79, 118 n.69 (2004) [hereinafter Byrne, Threat] (noting that "academic freedom cases often employ stirring rhetoric without deciding much" (citing Byrne, supra note 17, at 257)).
190. 539 U.S. 306 (2003).
191. Id. at 328.
192. See Horwitz, Grutter's First Amendment, supra note 24, at 572-73.
193. Schauer, Academic Freedom, supra note 26, at 921-22.
194. 547 U.S. 47 (2006).
195. See State v. Schmid, 423 A.2d 615 (N.J. 1980) (holding under New Jersey constitutional law that a nonmember of the university community was entitled to leaflet on the Princeton University campus), appeal dismissed sub nom. Princeton Univ. v. Schmid, 455 U.S. 100 (1982);
196. see also Byrne, After Grutter, supra note 122, at 946 (criticizing the New Jersey Supreme Court's decision in Schmid).
197. See generally Horwitz, Grutter's First Amendment, supra note 24, at 503-11.
198. See also Corry v. Leland Stanford Univ., No. 740309 (Cal. Super. Ct. Feb. 27.1995), available at http://www.ithaca.edu/faculty/cduncan/265/ corryvstanford.htm (invalidating Stanford University's campus speech code, relying on a California law giving students at private universities the same free speech rights as students at public universities).
199. Schauer, Academic Freedom, supra note 26, at 923-24.
200. See, e.g., Turner Broad. Sys., Inc. v. FCC, 520 U.S. 180,195-96 (1997).
201. See, e.g., Adler & Dorf, supra note 77, at 1172-81.
202. C. Thomas Dienes, When the First Amendment Is Not Preferred: The Military and Other "Special Contexts," 56 U. CIN. L. REV. 779, 819 (1988).
203. Cf. Hills, supra note 34, at 186-87.
204. See generally Horwitz, Grutter's First Amendment, supra note 24, at 503-46.
205. Bryce v. Episcopal Church in the Diocese of Colo., 289 F.3d 648, 655 (10th Cir. 2002)
206. (citing Kedroff v. St. Nicholas Cathedral, 344 U.S. 94, 116-17 (1952)).
207. For a useful discussion, see Richard W. Garnett, The Freedom of the Church, 4 J. CATH. SOC. THOUGHT 59 (2006).
208. Carl H. Esbeck, Dissent and Disestablishment: The Church-State Settlement in the Early American Republic, 2004 BYU L. REV. 1385, 1589.
209. Presbyterian Church in the U.S. v. Mary Elizabeth Blue Hull Mem'l Presbyterian Church, 393 U.S. 440, 449 (1969).
210. 42 U.S.C. § 2000e-1(a) (2000).
211. See, e.g., Rayburn v. Gen'l Conf. of Seventh Day Adventists, 772 F.2d 1164, 1166 (4th Cir. 1985);
212. Steven K. Green, Religious Discrimination, Public Funding, and Constitutional Values, 30 HASTINGS CONST. L.Q. 1, 3 (2002).
213. Petruska v. Gannon Univ., 462 F.3d 294, 304 (3d Cir. 2006).
214. Id. at 303.
215. See NLRB v. Cath. Bishop of Chi., 440 U.S. 490 (1979).
216. See EEOC v. Pac Press Publ'g Ass'n, 676 F.2d 1272 (9th Cir. 1982).
217. See Assemany v. Archdiocese of Detroit, 434 N.W.2d 233 (Mich. Ct. App. 1988).
218. But see EEOC v. Miss. Coll., 626 F.2d 477 (5th Cir. 1980) (refusing to extend the exception to claims involving nontheology faculty at a sectarian college).
219. See, e.g., LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW § 14-11, at 1232 n.46 (2d ed. 1988) (quoting P. KAUPER, RELIGION AND THE CONSTITUTION 26 (1964)).
220. See, e.g., Ira C. Lupu, Free Exercise Exemptions and Religious Institutions: The Case of Employment Discrimination, 67 B.U. L. REV. 391 (1987);
221. Jane Rutherford, Equality as the Primary Constitutional Value: The Case for Applying Employment Discrimination Laws to Religion, 81 CORNELL L. REV. 1049 (1996). Ira Lupu has since revised the views stated in his earlier article.
222. See Ira C. Lupu & Robert Tuttle, The Distinctive Place of Religious Entities in Our Constitutional Order, 47 VILL. L. REV. 37, 90 n.177 (2002).
223. Horwitz, Grutter's First Amendment, supra note 24, at 578-79.
224. Id. at 579.
225. Id. at 579-80.
226. Id. at 589.
227. Id.
228. Dale Carpenter, The Value of Institutions and the Values of Free Speech, 89 MINN. L. REV. 1407, 1409 (2005).
229. For recent efforts to raise questions about the institutional approach to the First Amendment, focusing on Schauer's work, see, for example, Carpenter, supra note 153;
230. David McGowan, Approximately Speech, 89 MINN. L. REV. 1416 (2005).
231. See supra notes 113-125 and accompanying text.
232. See Fagundes, supra note 26, at 1686 ("The Speech Clause itself may be object-neutral, but our First Amendment jurisprudence is nevertheless premised on implicit status distinctions among vatious speakers.");
233. McGowan, supra note 154, at 1432 ("[J]udges do pay attention to institutions when engaging in free speech analysis, though the doctrine does not.").
234. See infra Part III.
235. Horwitz, Grutter's First Amendment, supra note 24, at 583-84.
236. See id. at 584 n.554 (collecting sources).
237. 423 A.2d 615 (N.J. 1980).
238. Id. at 628.
239. See 1 JENNIFER FRIESEN, STATE CONSTITUTIONAL LAW: LITIGATING INDIVIDUAL RIGHTS, CLAIMS AND DEFENSES § 9-3(a) (3d ed. 2000).
240. See Commonwealth v. Tate, 432 A.2d 1382 (Pa. 1981) (applying a state free speech provision to a private university).
241. See CAL. EDUC. CODE § 94367 (West 2002).
242. See Julian N. Eule & Jonathan D. Varat, Transporting First Amendment Norms to the Private Sector: With Every Wish There Comes a Curse, 45 UCLA L. REV. 1537 (1998);
243. see also Byrne, After Grutter, supra note 122, at 946;
244. Byrne, Threat, supra note 122, at 104 n.171.
245. See Horwitz, Grutter's First Amendment, supra note 24, at 585 n.563.
246. MICH. CONST, art. VIII, § 5.
247. See, e.g., Nelson Lund, The Rehnquist Court's Pragmatic Approach to Civil Rights, 99 NW. U. L. REV. 249, 285 (2004) (describing the competition between public and private universities as one of "competition between government agencies staffed by self-perpetuating groups of life-tenured professors on one side, and tax exempt, nonprofit, government-subsidized institutions staffed by self-perpetuating groups of life-tenured professors on the other").
248. Horwitz, Grutter's First Amendment, supra note 24, at 588.
249. The title of this Subpart is taken from David Fagundes's valuable recent article of the same name. See Fagundes, supra note 26.
250. Byrne, supra note 17, at 300.
251. Coal, to Defend Affirmative Action v. Granholm, 473 F.3d 237, 247 (6th Cir. 2006);
252. see also Columbia Broad. Sys. v. Democratic Nat'l Comm., 412 U.S. 94, 139 (1973) (Stewart, J., concurring);
253. Hopwood v. Texas, 78 F.3d 932, 943 n.25 (5th Cir. 1996). This is the position taken by Paul Secunda in his contribution to this Symposium.
254. See Paul M. Secunda, The Solomon Amendment, Expressive Associations, and Public Employment, 54 UCLA L. REV. 1767, 1771 ("[T]he Bill of Rights protects the governed, not the governing"). Specifically, Secunda argues against constitutional rules that would insulate public universities, as public employers, from claims brought by faculty members and other university employees, while leaving open the possibility that universities
255. See, e.g., id. at 1807 n.251.
256. See Fagundes, supra note 26, at 1641-42.
257. 412 U.S. 94.
258. Id. at 139.
259. Sons of Confederate Veterans, Inc. v. Holcomb, 129 F. Supp. 2d. 941, 944 (W.D. Va. 2001).
260. See, e.g., City of Madison, Joint Sch. Dist. No. 8 v. Wis. Employment Relations Comm'n, 429 U.S. 167, 175 n.7 (1976) ("We need not decide whether a municipal corporation as an employer has First Amendment rights to hear the views of its citizens and employees.").
261. 539 U.S. 194 (2003).
262. Id. at 210-11.
263. 80 F.3d 186 (7th Cir. 1996).
264. Id. at 193
265. (citing Monell v. Dep't of Soc. Servs., 436 U.S. 658, 690 (1978);
266. Moor v. Alameda County, 411 U.S. 693, 717-18 (1973)).
267. Id. at 193.
268. Am. Library Ass'n, Inc. v. United States, 201 F. Supp. 2d 401 (E.D. Pa. 2002), rev'd, 539 U.S. 194 (2003).
269. Id. at 492 n.36.
270. Fagundes, supra note 26, at 1647-59.
271. Id. at 1662.
272. Cf. Am. Library Ass'n, 539 U.S. at 226 (Stevens, J., dissenting) (drawing an analogy to the Court's constitutional academic freedom decisions to argue that publicly funded libraries are entitled to First Amendment protection in their exercise of discretion with respect to collection decisions).
273. Secunda, supra note 172, at 1771.
274. MICH. CONST, art. VIII, § 5.
275. See supra notes 113-121 and accompanying text.
276. 539 U.S. 306 (2003).
277. Id. at 329.
278. Cf. Schauer, Academic Freedom, supra note 26, at 925.
279. See Secunda, supra note 172, at 1809-13;
280. see also Byrne, After Grutter, supra note 122, at 937-38 (noting that the Court has often employed constitutional academic freedom "as a counter to constitutional arguments posed by challengers to university actions" rather than directly labeling it as a freestanding right, and observing that "it would introduce a novel notion of what is a constitutional right to hold that one has special, constitutional weight against other constitutionally protected interests while still being vulnerable to state legislation").
281. See Erwin Chemerinsky, More Speech Is Better, 45 UCLA L. REV. 1635 (1998) [hereinafter Chemerinsky, More Speech].
282. Id. at 1639.
283. Id. at 1641.
284. Id. at 1643.
285. Id. at 1637.
286. Id. at 1639.
287. 515 U.S. 557 (1995).
288. Chemerinsky, More Speech, supra note 195, at 1642.
289. Horwitz, Grutter's First Amendment, supra note 24, at 587.
290. 547 U.S. 47 (2006).
291. It is worth noting that Chemerinsky served as one of the named plaintiffs in Rumsfeld v. Forum for Academic & Institutional Rights (FAIR), and has subsequently written in criticism of the Court's decision in that case.
292. See Erwin Chemerinsky, Why the Supreme Court Was Wrong About the Solomon Amendment, 1 DUKE J. CONST. L. & PUB. POL'Y 201 (2006) [hereinafter Chemerinsky, Why the Court Was Wrong]. Of course, his views may have changed in the intervening years. And one might attempt to reconcile the views he takes in his earlier article with those he advanced as a litigant in FAIR. Nevertheless, I find it difficult to fairly reconcile his earlier views with his willingness to advance the FAIR litigation as a named plaintiff. I do not mean to overstate this criticism, and hence have relegated it to a footnote, but it merits some discussion. On a basic level, some of the arguments advanced in More Speech are in tension with some of his later statements in and about the FAIR litigation. For example, he argued in More Speech that the Supreme Court's decision in Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston adds little to the argument against importing First Amendment norms to private institutions, because "[a] parade ... exists to convey a message. A school or workplace, by contrast, exists primarily to perform other functions," and thus may be required to "tolerate in its midst speech that it dislikes." Chemerinsky, More Speech, supra note 195, at 1642-43. Today, by contrast, he calls Hurley an example of "forced expression" that applies to the law school plaintiffs in FAIR.
293. See Chemerinsky, Why the Court Was Wrong, supra, at 211-15. Similarly, he wrote in More Speech that private institutions "can protect [their] speech interests by expressing [their] own message," but cannot "silenc[e] others."
294. Chemerinsky, More Speech, supra note 195, at 1642 (citing Prune Yard Shopping Ctr. v. Robins, 447 U.S. 74 (1980)).
295. In FAIR, by contrast, the respondents argued that PruneYard "does not come close to justifying a law that demands a school's active assistance in helping a specified outsider disseminate a specific message that is deeply objectionable to the institution." Brief for Respondents, Rumsfeld v. FAIR, 547 U.S. 47, at 23 (2005). To be sure, the addition of the law schools' compelled "active assistance" superficially distinguishes PruneYard from FAIR - if one believes that such acts as "maintain[ing] leaflets in binders for reference by students" rise to the level of compelled speech.
296. Chemerinsky, Why the Court Was Wrong, supra, at 210. But it is hard to square that distinction with the earlier view that schools "primarily ... perform other functions" that the government may legitimately regulate without falling afoul of constitutional values. These tensions are worth addressing because they lead to a broader point. If one believes that it is permissible to impose First Amendment norms on private-sector actors such as universities because universities are not "communit[ies] in any meaningful way,"
297. Chemerinsky, More Speech, supra note 195, at 1639, one ought to be reluctant to advance the kinds of arguments made on behalf of the respondents in FAIR, in which law schools were treated as "normative institution[s]," Brief for Respondents, supra, at 28, with a strong sense of community. If one believes that universities are communities, however, that belief should call into question the application of antidiscrimination laws to these institutions. Despite the respondents' valiant efforts to distinguish such laws in FAIR,
298. see Brief for Respondents, supra, at 33-35, a defense of the law school on the grounds that it is a unique expressive community ought to raise serious questions about the vitality of decisions such as Runyon v. McCrary, 468 U.S. 609 (1984), at least as applied to private universities. Conversely, one may argue that those laws properly apply to law schools - but one should then seriously question the merits of the arguments made by the respondents in FAIR. I doubt that one can comfortably maintain both views. Thus, the tensions between Chemerinsky's earlier writing and his current views on FAIR are worth noting because they stand in for a broader tension, evident in FAIR itself, between the view that universities are expressive communities and the view that they should be subject to antidiscrimination laws. I have more to say about these issues below. See infra Part III.
299. See generally Eule & Varat, supra note 165;
300. see id. at 1537 n.** (describing the project and Jonathan Varat's generous contribution to completing it);
301. see also Jonathan D. Varat, When May Government Prefer One Source of Private Expression Over Another?, 45 UCLA L REV. 1645 (1998).
302. See Eule & Varat, supra note 165, at 1542.
303. Id.
304. Julian Eule and Jonathan Varat themselves are far more circumspect in making this point, however, since they do not believe the Supreme Court has clearly delineated either the existence or the scope of some degree of "institutional freedom from government intervention" enjoyed by universities. Id. at 1615 (emphasis omitted).
305. See generally id. at 1613-17. Nevertheless, their general attitude appears to be that courts and legislatures should think carefully before treading in this area.
306. See id. at 1617. Given that this Article argues positively for such a right of educational institutional autonomy, I would go further than Eule and Varat, whose approach was largely descriptive and thus relied more closely on existing doctrine.
307. Id. at 1617-18.
308. See infra pp. 1547-49.
309. Id. at 1622 (quoting KENT GREENAWALT, FIGHTING WORDS: INDIVIDUALS, COMMUNITIES, AND LIBERTIES OF SPEECH 75 (1995)).
310. Id. at 1623.
311. Varat, supra note 206, at 1647.
312. Id. at 1650.
313. Lewis, supra note 42, at 605.
314. See, e.g., Lange, supra note 42;
315. Lewis, supra note 42, at 605.
316. See supra note 117 and accompanying text.
317. 539 U.S. 306 (2003).
318. 118 S. Ct. 1633 (1988).
319. Id, at 1637;
320. see also Schauer, Principles, Institutions, and the First Amendment, supra note 26, at 89.
321. See Horwitz, Blog, supra note 26, at 51-52.
322. See, e.g., First Nat'l Bank v. Bellotti, 435 U.S. 765, 798-801 (Burger, C.J., concurring);
323. David A. Anderson, Freedom of the Press, 80 TEX. L. REV. 429, 435-45 (2002).
324. See generally Horwitz, Blog, supra note 33.
325. See supra notes 94-112 and accompanying text.
326. L.A. Police Dep't v. United Reporting Publ'g Corp., 528 U.S. 32, 47 n.4 (1999) (Stevens, J., dissenting).
327. See Carpenter, supra note 153, at 1410.
328. Varat, supra note 206, at 1650 (emphasis added).
329. Id.
330. See generally Schauer, Institutional First Amendment, supra note 26.
331. Id. at 1277.
332. See Frederick Schauer, Institutions as Legal and Constitutional Categories, 54 UCLA L. REV. 1747 (2007) [hereinafter, Schauer, Institutions].
333. See infra pp. 1555-58.
334. Am. Ass'n of Univ. Professors, General Report of the Committee on Academic Freedom and Academic Tenure (1915),
335. reprinted in LAW & CONTEMP. PROBS., Summer 1990, at 393, 401;
336. see also Byrne, supra note 17, at 277-78;
337. Walter P. Metzger, Professional and Legal Limits to Academic Freedom, 20 J.C. & U.L. 1, 2-3 (1993).
338. Am. Ass'n of Univ. Professors, supra note 234, at 401.
339. Cf. Post, supra note 26.
340. See supra Part I.D.
341. Grutter v. Bollinger, 539 U.S. 306, 328 (2003).
342. Cf. Hills, supra note 26, at 186 (discussing the idea of "judgment according to academic standards" as "incorporating a jurisdictional component").
343. See, e.g., Byrne, Academic Freedom, supra note 17, at 332 (citing NCAA v. Bd. of Regents, 468 U.S. 85 (1984) (applying the Sherman Act to the National Collegiate Athletic Association's (NCAA) plan to restrict the total number of live televised football games, without any special regard for the collegiate context in which the case arose));
344. Mark D. Selwyn, Higher Education Under Fire: The New Target of Antitrust, 26 COLUM. J.L. & SOC. PROBS. 117 (1992) (discussing other areas in which universities have been subject to regulation under the antitrust laws).
345. Regents of the Univ. of Mich. v. Ewing, 474 U.S. 214, 225 (1985).
346. See Runyon v. McCrary, 427 U.S. 160 (1976).
347. Cf. Bob Jones Univ. v. United States, 461 U.S. 574 (1983) (upholding the denial of tax-exempt status to Bob Jones University, which argued on free exercise grounds for the right to deny interracial dating among its students).
348. See, e.g., Patricia L. Bors, Academic Freedom Faces Learning Disabilities: Guckenberger v. Boston University, 25 J.C. & U.L. 581 (1999);
349. James Leonard, Judicial Deference to Academic Standards Under Section 504 of the Rehabilitation Act and Titles II and III of the Americans With Disabilities Act, 75 NEB. L REV. 27 (1996).
350. See Horwitz, Grutter's First Amendment, supra note 24, at 503-11.
351. The litigation in Guckenberger v. Boston University, 8 F. Supp. 2d 82 (D. Mass. 1998), a case involving Boston University's refusal to lift foreign-language requirements for students claiming an exemption under the Americans With Disabilities Act (ADA), may be instructive on this point. In this case, the district court initially refused to dismiss the action, noting that the university administration had not "engage[d] in any form of reasoned deliberation as to whether modifications [in the foreign-language policy] would change the essential academic standards of [the College's] liberal arts curriculum." Id. at 85 (quotation and citation omitted). On remand, the court held that the university had subsequently engaged in careful deliberation on the question of whether "the foreign language requirement is fundamental to the nature of the liberal arts degree at Boston University."
352. Id. at 87. The court then deferred to that determination, holding that in such circumstances, "the ADA does not authorize the courts to intervene even if a majority of other comparable academic institutions [would] disagree [in similar circumstances]."
353. Id. at 90. While one may disagree about the burden of proof a university must meet in the first instance in asserting a right to deference to genuinely academic decisions, and about the propriety of a court ordering a university to adopt a particular deliberative process in reaching such a situation,
354. see id. at 85-86, Guckenberger still nicely illustrates the degree to which a university may be protected from the application of generally applicable nondiscrimination laws such as the ADA if such laws would interfere with a sincere and genuine decision on the part of the university - even if other universities might reach different conclusions in similar cases.
355. I imagine this objection would flow naturally, for example, from Chemerinsky's more speech is better arguments, for both public and private universities. See Chemerinsky, More Speech, supra note 195. Neal Katyal also addresses the risks of abuse that an autonomy-oriented approach to universities entails.
356. See Neal Kumar Katyal, The Promise and Precondition of Educational Autonomy, 31 HASTINGS CONST. LQ. 557, 565 (2003) ("As with all forms of deference, the risk with educational autonomy arguments is that the institutions to which deference is shown will use them to hide their abuses.").
357. See Horwitz, Grutter's First Amendment, supra note 24, at 472-73.
358. See supra notes 106-112 and accompanying text;
359. see also Byrne, Threat, supra note 122, at 91 n.77 ("The Constitution does not create the speech norms of academic freedom; they have been created by the values and practical needs of organized scholarship and advanced teaching.").
360. Byrne, After Grutter, supra note 122, at 941.
361. See generally Calhoun, supra note 107.
362. Chemerinsky, More Speech, supra note 195, at 1638.
363. See Brief for Respondents, supra note 205, at 33-35.
364. 468 U.S. 609 (1984).
365. 461 U.S. 574 (1983). For similar arguments in the private university context, see David E. Bernstein, The Right of Expressive Association and Private Universities' Racial Preferences and Speech Codes, 9 WM. & MARY BILL RTS. J. 619 (2001).
366. Cf. Schauer, Academic Freedom, supra note 26, at 919 (discussing the ways in which "an institutional understanding of academic freedom" is "more faithful to the best account of what academic freedom is all about").
367. 438 U.S. 265 (1978).
368. Id. at 312 (opinion of Powell, J., concurring) (citing Sweezy v. New Hampshire, 354 U.S. 234, 264 (1957) (Frankfurter, J., concurring)).
369. See, e.g., Matthew W. Finkin, On "Institutional" Academic Freedom, 61 TEX. L. REV. 817, 818 (1983) ("[T]he reasons that make a strong case for institutional autonomy are not identical to those that justify the protection of academic freedom. Institutional autonomy and academic freedom are related but distinct ideas. Indeed, while they reinforce one another at some points, they may straightforwardly conflict at others.").
370. Thus, in contrast to Matthew Finkin, J. Peter Byrne argues that "constitutional academic freedom" should be understood as an institutional and not an individual freedom. Byrne, supra note 17, at 255. Note, however, that defining a legal principle of "constitutional academic freedom" in institutional terms is not the same thing as defining academic freedom generally, in its nonlegal aspects, as a purely institutional right.
371. See, e.g., Finkin, supra note 259, at 849-51;
372. see also Richard H. Hiers, Institutional Academic Freedom - A Constitutional Misconception: Did Grutter v. Bollinger Perpetuate the Confusion?, 30 J.C. & U.L. 531 (2004) (criticizing arguments in favor of an institutional understanding of constitutional academic freedom);
373. Elizabeth Mertz, The Burden of Proof and Academic Freedom: Protection for Institution or Individual?, 82 NW. U. L. REV. 492, 519-20 (1988) (arguing for primacy of individual academic freedom claims over institutional academic freedom claims).
374. See Horwitz, Grutter's First Amendment, supra note 24, at 480-81;
375. Timothy C. Shiell, Three Conceptions of Academic Freedom, in ACADEMIC FREEDOM AT THE DAWN OF A NEW CENTURY: HOW TERRORISM, GOVERNMENTS, AND CULTURE WARS IMPACT FREE SPEECH 17, 18 (Evan Gerstmann & Matthew J. Streb eds., 2006).
376. See generally THE FUTURE OF ACADEMIC FREEDOM (Louis Menand ed., 1996);
377. Stanley Fish, Holocaust Denial and Academic Freedom, 35 VAL. U. L REV. 499 (2001);
378. David Rabban, Can Academic Freedom Survive Postmodernism, 86 CAL. L. REV. 1377 (1998) (reviewing THE FUTURE OF ACADEMIC FREEDOM, supra).
379. See Byrne, supra note 17, at 279-81;
380. Horwitz, Grutter's First Amendment, supra note 24, at 479-80.
381. Keyishian v. Bd. of Regents, 385 U.S. 589, 603 (1967).
382. Alexander, supra note 103, at 883.
383. Id. at 884.
384. Id.
385. Byrne, supra note 17, at 306.
386. Id. at 333.
387. Id. at 338.
388. Byrne, After Grutter, supra note 122, at 939.
389. Id. at 952.
390. Byrne, supra note 17, at 338.
391. See Horwitz, Grutter's First Amendment, supra note 24, at 479-80; see also id. at 503-11.
392. See generally ALBERT O. HLRSCHMAN, EXIT, VOICE, AND LOYALTY: RESPONSES TO DECLINE IN FIRMS, ORGANIZATIONS, AND STATES (1970).
393. See supra pp. 1513-14.
394. Horwitz, Grutter's First Amendment, supra note 24, at 563.
395. See Gratz v. Bollinger, 539 U.S. 244 (2003) (striking down as unconstitutional a race-conscious admissions program for undergraduate applications to the University of Michigan on the grounds that the university's consideration of undergraduate applicants was insufficiently individualized).
396. 539 U.S. 306 (2003).
397. See Horwitz, Grutter's First Amendment, supra note 24.
398. Sweezy v. New Hampshire, 354 U.S. 234, 263 (1957) (Frankfurter, J., concurring).
399. See Grutter, 539 U.S. at 329.
400. See Coal, to Defend Affirmative Action v. Granholm, 473 F.3d 237, 239-40 (6th Cir. 2006) (discussing Michigan's passage in November 2006 of Proposal 2, a statewide ballot initiative proposing to prohibit the use of racial preferences in public university admissions).
401. Id. at 240.
402. Byrne, After Grutter, supra note 122, at 938.
403. Id. at 937.
404. For discussion of the Academic Bill of Rights, see Horwitz, Grutter's First Amendment, supra note 24, at 533-37;
405. see also Byrne, After Grutter, supra note 122, at 939-46;
406. Cheryl A. Cameron et al., Academic Bills of Rights: Conflict in the Classroom, 31 J.C. & U.L. 243 (2005);
407. Robert M. O'Neil, Bias, "Balance," and Beyond: New Threats to Academic Freedom, 77 U. COLO. L. REV. 985 (2006).
408. Students for Academic Freedom, Academic Bill of Rights, http://cms.studentsforacademic freedom.org (last visited Mar. 31, 2007).
409. Id.;
410. see also Byrne, After Grutter, supra note 122, at 942;
411. O'Neil, supra note 287, at 999.
412. But see Horwitz, Grutter's First Amendment, supra note 24, at 534.
413. Students for Academic Freedom, supra note 288.
414. See Byrne, After Grutter, supra note 122, at 943 ("One might plausibly argue that the [Academic Bill of Rights] could be implemented in a manner that would enhance rather than impair academic freedom.");
415. O'Neil, supra note 287, at 1005 (noting that some provisions of the Academic Bill of Rights simply "invoke or recite" principles long recognized as central to academic freedom by the American Association of University Professors).
416. Byrne and Robert O'Neil both agree with this proposition, whether on institutional or other grounds. See Byrne, After Grutter, supra note 122, at 943-46;
417. O'Neil, supra note 287, at 1015 ("[W]hatever is done in this sensitive area must reflect the academic judgment of the institution and its faculty, not the dictates of a state legislature or other governmental body, or pressure from a private organization of alumni or others; any other approach ill serves the interests of academic freedom.").
418. 547 U.S. 47 (2006).
419. But see Dale Carpenter, Unanimously Wrong, 2006 CATO SUP. CT. REV. 217 (suggesting that the Court's opinion was-well, read the title);
420. Chemerinsky, Why the Court Was Wrong, supra note 205 (criticizing the decision in FAIR);
421. Horwitz, Three Faces, supra note 26 (arguing that the Court's superficially reasonable opinion in FAIR obscures a variety of difficult questions about its application of existing First Amendment doctrine).
422. See, e.g., David L. Hudson, Jr., Law Schools Told to Allow Military Recruiters, 5 A.B.A. J. REP. 10 (2006).
423. For that critique, see Horwitz, Three Faces, supra note 26.
424. See Boy Scouts of Am. v. Dale, 530 U.S. 640 (2000).
425. See FAIR, 547 U.S. at 58-59.
426. See id. at 68-70.
427. See Horwitz, Grutter's First Amendment, supra note 24, at 525 n.312.
428. See, e.g., FAIR, 547 U.S. at 61-62, 69-70.
429. In a recent article, Byrne, who surely is no champion of the Solomon Amendment itself, argues that the plaintiffs in FAIR nevertheless engaged in a "misguided" and "unpersuasive" "effort to 'stretch' institutional academic freedom beyond the breaking point." Byrne, After Grutter, supra note 122, at 948.
430. See generally id. at 946-53. Byrne's arguments are eminently reasonable, and as the discussion below indicates, I might well agree with his views if the question were abstracted from the matter of who is to make such decisions. I think it is precisely there that our differences lie, however. Recall that Byrne advocates limiting the scope of institutional autonomy by linking it to a particular definition of what academic freedom entails - a definition that leaves on-campus recruiting outside the scope of constitutional protection.
431. See id. By contrast, I have argued that courts should avoid enforcing through law a particularized definition of academic freedom, and instead should leave individual universities free to arrive at their own understanding of what their academic mission requires. Under this approach, it is at least imaginable that a law school might conclude that its mission did involve on-campus recruiting, and thus might conclude that its conception of that mission required the exclusion of military recruiters.
432. Cf. id. at 949 (noting that professional schools might have appropriate "normative commitments" to values such as nondiscrimination, which might counsel in favor of excluding military recruiters, but arguing that such norms are not shielded, under his definition of academic freedom, "from displacement by other civil norms" through law). Of course, as I make clear below, to say that a law school might conclude that its academic mission required excluding military recruiters, and that courts should defer to the school's wishes on this point, is not to say that we should not argue, outside the courts, over whether the law schools are acting correctly as academic institutions when they assert such a right.
433. See generally Horwitz, Three Faces, supra note 26.
434. See also Horwitz, Grutter's First Amendment, supra note 24, at 580-81.
435. One might also suspect that at least some law schools have abdicated their responsibility to decide such questions for themselves, and instead have simply surrendered to the hard or soft coercions of other organizations, such as the American Association of Law Schools (AALS), whose policies require member schools not to permit discrimination on campus. This point is beyond the scope of this Article. But it does suggest that law schools, other faculties, and universities as a whole have an obligation, if they are to enjoy the autonomy to pursue their academic missions that I have argued for here, to resist undue efforts on the part of accreditation agencies and other centralized bodies to impose particular academic missions and policies on their members; and those bodies should in turn be careful to leave space for their members to pursue reasonable understandings of their own academic missions rather than impose ideologically based requirements on member schools. Cf. Horwitz, Grutter's First Amendment, supra note 24, at 530 n.331 (quoting a memorandum from Mark Tushnet, then president of the AALS, in which he asks of the Solomon Amendment, "how can the Association assert that its member schools have made academic freedom judgments [to bar on-campus military recruiters] when the policies at issue were adopted because of pressure from the Association, not because of member schools' own reflection on their missions?").
436. Guckenberger v. Boston Univ., 8 F. Supp. 2d 82, 85 (D. Mass. 1998).
437. See generally Schauer, institutions, supra note 232.
438. Grutter v. Bollinger, 539 U.S. 306, 328 (2003).
439. Horwitz, Grutter's First Amendment, supra note 24, at 575
440. (quoting Michael C. Dorf & Charles F. Sabel, A Constitution of Democratic Experimentalism, 98 COLUM. L. REV. 267, 283 (1998)).
441. Michael C. Dorf, Legal Indeterminacy and Institutional Design, 78 N.Y.U. L. REV. 875, 978 (2003).
442. Id. at 961.
443. See Mitchell N. Berman, Aspirational Rights and the Two-Output Thesis, 119 HARV. L. REV. F. 220, 220 (2006) (noting that the last ten years have "witnessed a steady increase in scholarly attention to the meaning/doctrine distinction").
444. Richard H. Fallon, Jr., Judicially Manageable Standards and Constitutional Meaning, 119 HARV. L REV. 1274, 1276 (2006).
445. RICHARD H. FALLON, JR., IMPLEMENTING THE CONSTITUTION 5 (2001).
446. See, e.g., Fallon, supra note 313, at 1321 ("Frank recognition of the judicial function in crafting and choosing among judicially manageable standards triggers questions about judicial power and competence that have not received much helpful study.... Questions about the empirical predicates for constitutional analysis cry out for further examination.");
447. id, at 1322, 1331 (arguing that the notion of a meaning-implementation gap in constitutional law "furnishes an agenda" for further academic work, and suggesting some possible lines of inquiry).
448. For more on this point, see Horwitz, Three Faces, supra note 26. In arguing that courts should evaluate academic freedom claims by universities according to "their germaneness to the university's central academic mission," Alan Chen similarly sees a connection to Richard Fallon's work on constitutional implementation.
449. See Chen, supra note 17, at 973-75.