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Legal scholarship highlight: Affirmative action and academic freedom

Steve Sanders is a visiting assistant professor at the University of Michigan Law School and a former administrative staff member at Indiana University Bloomington.  The views expressed here are his own.

No one would suggest that a college student has a First Amendment right to create her own course syllabus if she disagrees with the one provided by the professor.  Nor would we expect a court to protect a college student from being exposed in class to ideas or texts that contradict her political views.  And so if, as the Court has said, “[t]he freedom of a university to make its own judgments as to education includes the selection of the student body,” should we endow that same student with a constitutional right to object to the race of another person competing with her in the applicant pool?

In Grutter v. Bollinger, the Court held that a university’s affirmative action policy survives strict scrutiny under the Equal Protection Clause if it is based on holistic, individualized consideration of applicants and not a quota.  The key to Grutter was its acceptance of the University of Michigan Law School’s argument, based on both educational research and the experience of its own faculty, that diversity “has the potential to enrich everyone’s education and thus make a law school class stronger than the sum of its parts.”

This Term in Fisher v. University of Texas, the Court will revisit Grutter as it decides the constitutionality of a race-conscious admissions program at UT’s flagship campus in Austin.  Some commentators have speculated that Grutter itself may be overruled.  In a forthcoming essay for the new Indiana Journal of Law and Social Equality, I argue that overturning Grutter could have alarming legal ramifications for public higher education.  If five votes can be mustered to reverse Grutter after only ten years, the Court would be doing more than ignoring stare decisis or enshrining a more conservative view of the Constitution.  It would be repudiating a long and important line of jurisprudence respecting the freedom of universities – acting upon the good faith educational judgments of their faculties – to determine how best to carry out their academic missions.

Although classified as an equal protection decision, Grutter had as much to say about the autonomy and social role of public universities as it did about Fourteenth Amendment doctrine.  As Justice O’Connor wrote for the majority, “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.”

Michiganand its amici had defended consideration of diversity in part on the basis of academic freedom.  As the celebrated First Amendment lawyer Floyd Abrams wrote on behalf of five elite private universities, “Given the decision of universities through the nation … that the goal of having a diverse campus which reflects the highest academic standards can best be achieved by taking some account of the racial and ethnic background of their applicants, any direction then not to do so necessarily implicates—and threatens—a core principle of academic freedom.”

The Court appeared to embrace these arguments.  Justice O’Connor’s opinion cited Curators of the University of Missouri v. Horowitz, in which the Court rejected a student’s due-process challenge to dismissal from an academic program, observing that “[c]ourts are particularly ill-equipped to evaluate academic performance.”  She also cited Regents of the University of Michigan v. Ewing, where the Court admonished that “[w]hen judges are asked to review the substance of a genuinely academic decision … they should show great respect for the faculty’s professional judgment.  Plainly, they may not override it unless it is such a substantial departure from accepted academic norms as to demonstrate that the person or committee responsible did not actually exercise professional judgment.”  And she reaffirmed Justice Powell’s pivotal opinion in Regents of the University of California v. Bakke, which concluded that “[t]he freedom of a university to make its own judgments as to education includes the selection of the student body.”

The lesson to be drawn from these precedents, the Court said, was that “[o]urholding today is in keeping with our tradition of giving a degree of deference to a university’s academic decisions, within constitutionally prescribed limits.”  Although the question before the Court was one of Fourteenth Amendment equal protection law, “universities occupy a special niche in our constitutional tradition,” and their “educational autonomy” has “a constitutional dimension, grounded in the First Amendment.”

Grutter’s linchpin was its acceptance of the defendant law school’s determination, based on its “experience and expertise, that a ‘critical mass’ of underrepresented minorities is necessary to further its compelling interest in securing the educational benefits of a diverse student body.”  Indeed, the Court asserted its own view that “attaining a diverse student body is at the heart of the Law School’s proper institutional mission.”  Of course, “experience and expertise” are held and exercised not by institutions, but by people – in this case, the faculty members who had actually taught the students and framed the law school’s admissions policy.  The Court recognized that the law school’s argument was anchored in “the educational experience of the faculty.”  Moreover, this experience was supported by social science evidence.  Major higher education associations told the Court that “numerous research studies show that student body diversity can promote learning outcomes, democratic values and civic engagement, and preparation for a diverse society and workforce—goals that fall squarely within the basic mission of most universities.”

Why should courts deciding constitutional questions give deference to a bunch of professors?  The best answer – and the one that is most consistent with cases like Horowitz, Ewing, and Bakke – is that faculty members’ educational judgments are formed by the specialized training, engagement with scholarly disciplines, and daily classroom experience they bring to their work, and judges lack these things.  That does not mean, obviously, that faculty behavior is insulated from legal challenge if it is abusive, willfully discriminatory, or otherwise unprofessional and not taken in a scholar’s spirit.  But as Justice Stevens observed for a unanimous Court in Ewing, judges should defer to academic judgments that are “made conscientiously and with careful deliberation,” because “[a]cademic freedom thrives not only on the independent and uninhibited exchange of ideas among teachers and students,” but also “on autonomous decisionmaking by the academy itself.”

As the Court prepares to hear Fisher, foes of affirmative action are seeking to undermine Grutter’s foundations.  They attack the premise of the value of educational diversity, as Roger Clegg did in his recent essay for this blog; they point to different social science research that shows affirmative action may be harmful to minority students, as Stuart Taylor Jr. and Richard Sander argue; or, like Gail Heriot and John Eastman, they dismiss faculty educational judgments as merely politics and ideology in disguise.

These arguments deserve thoughtful consideration.  After all, most faculty see themselves as engaged in the pursuit of truth through rational, critical evaluation of evidence and arguments.  Knowledge advances when bad theories are discarded in favor of new ones with better explanatory power.  The Grutter court expressly presumed good faith on the part of the law school and credited the testimony and data it submitted.  That doesn’t necessarily mean every university’s race-conscious admissions program can be justified in the same way.  But few would seriously argue that the criteria for overcoming stare decisis (Is the precedent unworkable?  Have its doctrinal footings eroded?  Have its factual premises been discarded?  Would reversing precedent cause serious inequity to those who have relied on it?) have been met.  And so for now, universities should retain the latitude to decide for themselves.

The Court could rule narrowly on whether UT’s affirmative action program is consistent with Grutter.  But if Grutter’s core holding is to be reconsidered, the issue is this: will “five lawyers in black robes” (as the some of the Court’s conservative critics like to say) decide they are more qualified to evaluate the merits of educational diversity than the scholars and teachers who design the curricula, instruct and counsel the students, and who are still uniquely entrusted with the responsibility of defining what it means to be a college graduate who is prepared to function in today’s world?  The answer to that question could have implications for academic freedom that extend well beyond the controversy over race and college admissions.

This article is adapted from an essay, available here, which will be published in the inaugural issue of the Indiana Journal of Law and Social Equality.

Recommended Citation: Steve Sanders, Legal scholarship highlight: Affirmative action and academic freedom, SCOTUSblog (Sep. 14, 2012, 10:06 AM),