freedom of speech for universities

For me, one of the most interesting aspects of Monday’s Supreme

Court decisions on affirmative action was Justice O’Connor’s deference to universities.

In her majority opinion, she writes:

The Law School’s educational

judgment that such diversity is essential to its educational mission is one to

which we defer. … Our scrutiny of the interest asserted by the Law School is

no less strict for taking into account complex educational judgments in an area

that lies primarily within the expertise of the university. Our holding today

is in keeping with our tradition of giving a degree of deference to a university’s

academic decisions, within constitutionally prescribed limits. …. We have long

recognized that, given the important purpose of public education and the expansive

freedoms of speech and thought associated with the university environment, universities

occupy a special niche in our constitutional tradition. … In announcing the

principle of student body diversity as a compelling state interest, Justice Powell

invoked our cases recognizing a constitutional dimension, grounded in the First

Amendment, of educational autonomy: ‘The freedom of a university to make its own

judgments as to education includes the selection of its student body.’


have occasionally deferred to universities, not only in admissions, but also in

free-speech cases. Most people think that it is unacceptable for a university,

especially a public one, to discriminate against students or faculty who adopt

radical views, even in the classroom or in their writing. However, most people

think that a university can discriminate against teachers and students

for failing to use appropriate methods of reasoning in the classroom, in papers,

and in publications. The first amendment does not guarantee you a passing grade

even if your final exam is lousy. Thus "academic freedom" is not only

an individual right; it is also an institutional right of colleges to set their

own standards of discourse. (See J. Peter Byrne, "Academic Freedom: A ‘Special

Concern of the First Amendment’," Yale Law Journal, November, 1989,

pp. 251 ff.) In Bakke and other cases, justices have extended institutional

freedom to cover admissions and hiring decisions, within broad limits. Peter Byrne

observes that moderate jurists like O’Connor and Frankfurter are the ones who

typically argue this way. Strong liberals and conservatives of each generation

want to decide constitutional issues that arise within colleges; moderates

prefer to defer to academic institutions.

Deference to universities could

be grounded in freedom of association—but this defense would not apply to

state institutions. Byrne and other commentators want to base institutional academic

freedom on respect for academia as a separate social sphere. They say that science

and scholarship should be masters of their own domains. After about a decade in

the academic business, I can’t decide whether this degree of respect is warranted.

Sometimes I think that academia is an impressive social sector guided by Robert

Merton’s KUDOS norms: knowledge held in common, universalism, disinterestedness,

and organized skepticism. At other times, I think that academia

is a snake pit of favoritism, logrolling, and faddish conformity. I also think

that the broader question is complicated, i.e., Should (or must) democratic governments

defer to professions as the authorities within their own spheres of expertise?


June 23