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June 24, 2003

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.'

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 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?

Monday, June 23

Posted by peterlevine at 3:13 PM | Comments (0) | TrackBack

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