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.’
Courts
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 associationbut 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