For me, one of the most interesting aspects of Monday’s Supreme<\/p>\n
Court decisions on affirmative action was Justice O’Connor’s deference to universities<\/b>.<\/p>\n
In her majority opinion, she writes:<\/p>\n
\nThe Law School’s educational<\/p>\n
judgment that such diversity is essential to its educational mission is one to<\/p>\n
which we defer. … Our scrutiny of the interest asserted by the Law School is<\/p>\n
no less strict for taking into account complex educational judgments in an area<\/p>\n
that lies primarily within the expertise of the university. Our holding today<\/p>\n
is in keeping with our tradition of giving a degree of deference to a university’s<\/p>\n
academic decisions, within constitutionally prescribed limits. …. We have long<\/p>\n
recognized that, given the important purpose of public education and the expansive<\/p>\n
freedoms of speech and thought associated with the university environment, universities<\/p>\n
occupy a special niche in our constitutional tradition. … In announcing the<\/p>\n
principle of student body diversity as a compelling state interest, Justice Powell<\/p>\n
invoked our cases recognizing a constitutional dimension, grounded in the First<\/p>\n
Amendment, of educational autonomy: ‘The freedom of a university to make its own<\/p>\n
judgments as to education includes the selection of its student body.’<\/p>\n<\/blockquote>\n
Courts<\/p>\n
have occasionally deferred to universities, not only in admissions, but also in<\/p>\n
free-speech cases. Most people think that it is unacceptable for a university,<\/p>\n
especially a public one, to discriminate against students or faculty who adopt<\/p>\n
radical views, even in the classroom or in their writing. However, most people<\/p>\n
think that a university can<\/i> discriminate against teachers and students<\/p>\n
for failing to use appropriate methods of reasoning in the classroom, in papers,<\/p>\n
and in publications. The first amendment does not guarantee you a passing grade<\/p>\n
even if your final exam is lousy. Thus "academic freedom" is not only<\/p>\n
an individual right; it is also an institutional right of colleges to set their<\/p>\n
own standards of discourse. (See J. Peter Byrne, "Academic Freedom: A ‘Special<\/p>\n
Concern of the First Amendment’," Yale Law Journal<\/i>, November, 1989,<\/p>\n
pp. 251 ff.) In Bakke<\/i> and other cases, justices have extended institutional<\/p>\n
freedom to cover admissions and hiring decisions, within broad limits. Peter Byrne<\/p>\n
observes that moderate jurists like O’Connor and Frankfurter are the ones who<\/p>\n
typically argue this way. Strong liberals and conservatives of each generation<\/p>\n
want to decide<\/i> constitutional issues that arise within colleges; moderates<\/p>\n
prefer to defer to academic institutions.<\/p>\n
Deference to universities could<\/p>\n
be grounded in freedom of association—but this defense would not apply to<\/p>\n
state institutions. Byrne and other commentators want to base institutional academic<\/p>\n
freedom on respect for academia as a separate social sphere. They say that science<\/p>\n
and scholarship should be masters of their own domains. After about a decade in<\/p>\n
the academic business, I can’t decide whether this degree of respect is warranted.<\/p>\n
Sometimes I think that academia is an impressive social sector guided by Robert<\/p>\n
Merton’s KUDOS norms: k<\/b>nowledge held in common, u<\/b>niversalism, d<\/b>isinterestedness,<\/p>\n
and o<\/b>rganized s<\/b>kepticism. At other times, I think that academia<\/p>\n
is a snake pit of favoritism, logrolling, and faddish conformity. I also think<\/p>\n
that the broader question is complicated, i.e., Should (or must) democratic governments<\/p>\n
defer to professions as the authorities within their own spheres of expertise?<\/p>\n